RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XL, Issue 3103, 3 September 1884, Page 3

RESIDENT MAGISTRATE'S COURT.

TlMAßTJ— Ttjbßdat, Sept. 2kd. (Before H. W. Bobinson, Esq., E.M., and H. J. LeCren, Esq., J.P.) OITHi OASES. Judgment by default was given m tbe following cases : — G. J. Dennistoun t. G. H. Thompson, claim— £29 6s 6d, oosts £1 19* j K. Sando (as assignee m tbe estate of J. Hooi) t. G. Goddard— Claim, £10 4s 2d, costs 17s, solicitor's fee £1 Is (Mr Forster for plaintiff). Same v. A. Msson— Claim, £4 15s lOd, costs 13s ; same v. O. A. M'Gowan — Claim, £4 12s 2d, costs lOi ; same r. P. Doyle— Claim, £3 13» 7d, costs 10j. G. B. Annesley v. Jas. Nicholson — Claim, £1, oosts 10s. A. Kitchio v. A. Wilkinson— Olaim.fil 13s lOd, costs 10s. B. P. Bundesen v. A. Wilkinson— Cltim £1 Is, costs 10s. H. Clapbam v. B. Bonrn — Claim, £1 2s, coats 10s (Mr Ormiby for plaintiff). A. Bitcbie v. V 7. Dupree— Claim, £2 6s B*. Defendant appeared and demanded a nonsuit ; the particulars attached to the summons read " Account rendered, Besident Magistrate's Court, Timaru, from November 12th 1887 to March 30th 1888, £2 6s Bd." He knew nothing at all about the account. "We have not come to 1887 yet." His Worship said it was very absurd, it was manifestly a clerical error, but if defendant pressed his objection, the demand could not he admitted. Defendant did press big objection. Nonsnit granted ; costs refused. A. Smith v. Allan and Stumbles — Claim. £21 11s. Adjourned by consent for seven days. Robert Campbell r. G. B, Hill — Claim, £17 10a, damages for br?ach of contract. Mr White for plaintiff; Mr Perry for defendant. From Mr White's opening of the case, it appeared that m February last the plaintiff, a farmer and threshing mill owner, of Upper Pareora, agreed with defendant to thresh all his grain and cart nearly the whole of it to Timaru, a diitanco of about twelve miles, for s£d per bushel, defendant to shift tbe machine from stack to stack, and cirt water for the engine. It was part of the agreement that if, after starting work, the defendant wm dissatisfied with the quality of tbe work, he should be at liberty to stop it (as he would havo, power to do so without express agreement). Before the mill was taken to defendant's farm defendant went to where it was working — on plaintiffs own farm as it happened — watched it a while, and had a conversation with tbe engine-driver. A few days after this he wrote to plaintiff, telling him he bad been to see the mill and he did not like the way she was working. "She waa carrying grain np tbe elevator by the bushel, and the stuff wsb not half dressed. . . I could not give my threshing to a mill like that, and although you are doing it cheap, I would prefer to pay more and hare the work done properly." Bvidence would be called to show that the mill did its work very well, and that although 36,000 bushela wore threshed that season, no complaints had been made. Tbe plaintiff's estimate of his loss by the alleged breach of contract waa as follows : — Threshing 7168 bushels at 3id, £104 7s 9d ; less wages, 9 hands at 11s 6d per 1000, £36 6s 6d ; driver £7 3», fesder £4, coala and oil (including weir aud tear) £12 Bs, total £59 I7i 6J, leaving net profit £44 10s 3d. Carting at 2d per bushel, £59 13s; less expenses at ljd per bushel, £44. 15s 6d, and deduction for grain not carted £7 12a 9d — net £7 6s 9d ; total £51 16*. The plaintiff, Robert Campbell, m bis evidence regarding the contract, the principal point.J stated " He (defendant) said ho had heard my mill had been doing bad work. I said if tbe mill does not give you sarisfaotion after working a day, I will lift her off the ground without charging you a c*nt for it. The next I heard from him was the letter read by Mr White." The mill was m very good order. It threshed abont 36,000 baobel. this Beaton, and there were no complaints. Estimatod his net profit on the work of threshing and carting at £51 165, but put m a leaser claim. In reply to Mr Perry, the plaintiff said the machine had worked six seasons, and had done a good lot of work (m 1881 109,000 bushels). It formerly belonged to him and bis brother John Campbell i they sold it to one Waltie ; and before the present season it fell into witness's bands again. Had heard it did bad work last season, bat be effected many repairs — putting m now beaters, turning the concave, putting m new riddles, new fan-blades and new brasses — pending about £70 m thoroughly repairing it. Cockayne, a man m his employ, was not at the mill when defendant was there, because he (plaintiff) went to the mill tbe aame day, and defendant had just gone when he got there, and he had met |Oookayno a considerable distance away, on his way to the mill} therefore, defendant oould not have aeen him at the mill. Cross-examination did not shake the plaintiff's statement that tbe terms of the contract wore that he should do a day's work on defendant's farm, and if it was not satisfactory he would take tho machine away and charge nothing for the work done. Some time after tho agreement was made defendant said he would go over to his (plaintiff's) place, where the mill w»e, and ,*eo it working, and witness said, ell right. Ho estimated 3Jd per bushel for threshing and 2d for carting to Timaru. Employed eleven men at the mill, who were paid 11s 6d per 1000, except the driver, who got 20s por 1000, and the foeder, who waa paid £2 per Geo. Hosey, the plaintiff's engine-driver, gave evidenoe regarding a visit made by defendant to tho mill when it was at work on plaintiff » own farm. Defcndetnt looked at the. raw, held his hat under the elevator, and looked at tho grain m tho bags, and said to witneis he thought tho mill was leaving too many seconds m the grain. He [replied that waa very yasily remedied by opening the Boroen a little, but as tbe sample snited the owner it did not matter. Defondant said— " Whoa yon are threshing for me, I should like you to take more seconds out." That day they were threshing a stack standing by itself, the straw from wbioh G. Brajjell afterwards took away. In the course of a long cross-examination the witness stated that be did not know the defendant came over on purpose to inspect the machine for tbe purpose of approving of it. Defendant waa there about a> quarter of an hoar, and waa talking to bim about five minutes. When defendant went to the elevator, he went to him and aaw bim blow chaff out of his hat but aaw no grain. Cookftjne waa not at the mnohine while defendant was there. Georgo Braasell, a farmer, romembered taking away the straw from a single stack on Campbeli'i farm (identified as the sUok being threshed when defendant visited tbo mill). Eomarked that the straw was well threshed and tbat there wai very little loose grain m the

J- ■■■■»< ■JLJHTI./1 I X»U straw. The machine did witness' threshing Tory satisfactorily. He bad ataoked straw for three or four othora, and always no'iood that the work was veil done. To' Mr Perry t A maohina is not improved by ago, but better driving makes a great difference, Iho maohine was batter managed thin Beaton. Donald Monro, farmer, Kingsdown, bad examined plaintiff's machine the previous night. Had known it a few years. Found it m very good working order. Had gono over the calculation made, by plaintiff, and from hie experience could cay that as far as, tho threshing was concerned the. estimate was a very fair one and on the fafe eide. Could not give an opinion on the carting estimate Fad been a proprietor of machines for nine or ten years. The allowance for coals and oil, £12 Bs, was sufficient to cover wear and (ear of the machinery, Isaao Wilkius, oarter, knew defendant's farm. Had helped to cart grain from there this season at 2id per bushel. As near as he could tell, the profit was about Jd per bushel. This olosed the plaintiff's case. Mr Perry, m stating tho defence, said the defendant bad not been long m the district. He called for tenders for harvesting, and plaintiff's tender was accepted. At the foot of his tender he added a note that ho owned a threshing mill, and was prepared to do the threshing also if required. ■ His tender for harvesting was accepted, but def endaut told him he must make Borne enquiries about his machine before giving (him the threshing. Defendant made enquiries, and was told tbo | machine made bad work the year before. He told plaintiff what lie had heard, and i plaintiff said he had spent £70 m repairing it, and tho machine was then doing good work. Later on defendant told plaintiff he buouUl have the threshing provided the harvesting was veil aoße, and he approved of the mill after he had seen it at work. Plaintiff then said he would take the machine out of the paddock if it did not give satisfaction, and defendant said no, he would rather sea it before it was taken to his farm. He did not want the trouble of fetching it for a trial. Defendant went to see the mill, and not being satisfied with its working, he seat a letter to plaintiff to that effect. Gerald Bernard Hill, the defendant, m the rouxie of his evidence stated that when he agreed with the plaintiff about the threshing — the price to be std per bushel for threshing and carting tbo grain to Timaru, and 3d par bushel for threshing grain not carted — it was stipulated that he was to approve of the mill. Plaintiff said, "Jf she does not give you satisfaction, I will pull it right out of the paddook." He replied, "Oh no j I will come over and see it befbro it comeß to my place." Campbell said very well, or something to that effect. He accordingly went to Campbell's farm and saw the mill at work, and had a conversation with a man m Otmpbell'i employment named' Cockayne. Witness looked into the bags and was not satiffled with tho way the grain wiib being dressed. Then went round to tho elevators and held his hat under them for a minute or two, and got as much grain as be could hold m his hand. Was there twenty minutes or half an hour, and looked at the grain several times. Had heard the evidence of _ Hosey. Did not remember putting any questions to him. Waa speaking to Cockayne, and Hosey answered one or two questions he put to Cockayne. Went to the house from the mill, and finding Campbell out left a message for him, and on tho following Friday sent him » note, declining to Imvo tha mill. Met plaintiff twice at lsast after that, and he never said a word about the threshing. Heard no more about it till nearly three months after, when Campbell gave him the account. He repudiated the claim, and reminded Campbell that he was to approve of the mill. Campbell said yes, but the trial was to take place on his (witness's) ground, and he thought he had not been fairlr treated. Witness said there waa no understanding that the trial Bhould take place on his farm. He did not remember having any conversation with ETosey at all, but Hosoy did reply to remarks addressed by witness to Cockayne. Did not remember Baying anything to Hoeoy about taking out more seconds, nor Hosey Baying that it was easy enough to take out moro by opening the screen. A. W. Wright, farmer, Claremoht, gave evidence showing that the plaintiff's mill (thon m other hands) did bad work last season ; ho had not seen it this season. John Campbell, brother of plaintiff, farmer and threshing mill owner, who eventually threshed plaintiff's grain with a new machine, said the other did not do good work the year before. Knew Mr Hill's crop, and estimated it would ojst about £10 per 1000 to thresh it, and he would allow 10 per cent on the cost for wear and tear. Did not think there would be a greater profit than id per bushel m carting grain for 2JJ. He had not made a detailed estimate of tho cost of threshing such a crop. D. Caird, farmer and threshing machine owner, estimated the profit of threshing at 3Jd per bushel would be £3 3s 83 per 1000. His estimate of cost was : labor £7 6s, coals £1 15s,wearand tear £2 3d, oil 4s, per 1000. His place was jußt opposite Mr Hill's, and he bad never had any carting done for less than 3d per bushel, and he had never done any carting from there for less. He did not think it could be profitably done for less. Mr White cross-examined this witness at tome length as to details of his estimate. This concluded defendant's ca3o, and counsel on both sides addressed tho Court at some length. Tho whole hearing occupied over three hours. His Worship said tbe case seemed (o him muob wore simple than the number of witnesses called made it appear, though he did not say that the evidence of any of them could have been dispensed with. Tbo wholo case turned upon the conflict of evidenco between the plaintiff and the defendant, and that was simply whether tho defendant's approval of the mill was to be given at his own place or elsewhere. To his mind that approval was to bo given when and whore the defendant had an opportunity of seeing it at work, and if when he did see it, it did not suit him, he wai not bound to tako it. If it was not doing good work when ho examined it for the purpose of approving of it, no amount of good work done at other times would alter the fact, and all tho evidence about othor work was irrelevant. If ho was not satisfied he bad only to Bay so, and that was sufficient. Ho mutt give judgmont for defendant, with costs. Tho costs of Court were 15-\ of witness £3 11s, and solicitor's fee £2 2i. Allan and Stumbles v. Jas. McLoieh — Claim £45 Os Id, balance due for money lent, and interest and commission. Mr White for plaintiffs, and^Mr'Hamerjloy for defendant. A set-off was put m, admitting all tho items of cash lent, eioept one itom of £50, and another of 14i, the items of interest and commission — amounting to £12 5s 9d — being objected to as there was no Agreement to pay interest or commission. Ihr.io items and also the itom of 14s wore abandoned by the plaintiffs, and the evidence restricted to the item of £50. J. Kalph, dork to plaintiffs, produced the books of the firm, 'and deposed that on tho 25th May, 1880, he advanced to defendant on account of plaintiffs tbo sum of £50, m two cheques, one of £10 and the other of £40. Witnoss filled m the ohoqaes. Defendant, by way of receipt, wrote bis name across tho butt of caoh ohequo. (Butt of chequo book produced.) The cheques had boon paid and charged to tHo plaintiffs' account by tho Bank. , To Mr Hameraley : J. handed tho oh«quos to McLeish myself, at the offloa «t tho Breakwater, by instructions from Mr Allan, who was present and signed the ohequoß. Defendant denied that he had the loan of £50 on May 25th, as assarted by plaintifla. j Ho produced a momorandum m a pocket book, m his own handwriting, showing that on the 10th of May they owed him £17 6s Bd. To Mr White : I did not roooivo tho £10 obeque from .Ralph. I know nothing about it. I «cc it is written out payable to James MoLeish. It is not like Balph'a writing. I did not receive the £40 chequo either. Mr White proposed to put into tbe dofondant's handa the butt of the ohequo-book. Mr Hamenley objected that the butts were not stamped, and therefore woro not admissible as recoipti, Mr Whito: Ho has »worn ho did not receive tho obeqnas. I put these papers into hit hands and ask him if (hat is Jits signature or not, for the purpose of contradicting him. . i Mr Hamorsley : He Bays, lip dilnot rooolve

them ; your only contradiction is a receip and these are not receipts. His Worship ruled that the papers coul not bo admitted as receipts, but the questio might bo asked whether they bore bis Bigne ture. Defendant : The signature across tho but of the £10 cheque is not mine at all. I d not think it is. I see that tbo cheque i drawn m favor of James HcXoish, and ths the number corresponds with the number 01 the butt aoross which the nnmo Jnme McLeish is written, and I say that is not msignature on the butt. I never saw th ohequo before to-day. Tho signature acros the butt of tho £40 chequo is not at all lik mine ; it is not my handwriting. I give th same answers as about the £10 cheque. ". never saw the cheque before. I never cashed either of them. I never had them to cash I am quite awnro of tho weight of mj answer. I never Baw the cheques before. No other evidence was called, and Hi Worship gave judgment for the amount e'aimed, less the items for interest and com mission abandoned, thit is, for £32 14s 4d with costs 14s, and solicitors' feo £l Is. Mr Whito reminded the Magistrate thai last wo^k the present defendant obtained i judgment for £7 6s 6d aga ; nst Bobert Allan one of the present plaintiffs, and executior was stayed for a week, until the present caao could be heard. Ho now applied undei clause 63 of the Besident Magistrates Act, thai the judgment for the larger sum should be set ogainßt tho smaller, tho Utter declarec satisfied, and judgment onterod for the presenl plainliffs for the balance. Mr Hamersley point od out that tho provision did not apply ; it only referrod to cross actions betweeu tho same parties. Here the present plaintiffs wore Allan and Stumbles j tho defendant of laßt_we.>k was Robert Allan only. Mr White said he had forgotten that, and withdrew his application. After the next oase hod been disposed of, J. Lukey, who obtained a judgment against MoLeish two or three weeks ago, which waa still unsatisfied, applied to the Magistrate for an order to impound the proceeds of tho judgment m fnvor of McLeiah against Allan, and apply it to the satisfaction of the judgment he had obtained. Tho Magistrate said he did not think he could do anything of tho kind. Mr Lukey euid ho had known it to bo done m this Court. An order was mndo for ono judgment to be impounded for the satisfaction of a judgment hold against tho aucocsaful plaintiff. His Worship declined to make any order ; ho thought the applicant must apply to the bailiff. J. W. White v. J. Grant— Claim £8 Os Bd, professional services. Defondant objectod to Borne of the itemß as eioossive, and wished for an adjournment m order to get tbo account taxed ; but as he had had tho account fifteen months it was not allowed, and judgment wao given for tho amount and coats. Bege and Co. t. F. Jones — Claim, £10 19s, biro of piano. Mr Perry for plaintiffs ; Mr Hamoraley for defendant. This caao was called for tho purpose of having it reheard by Mr Robinson, but na it is likely to take some time, and tho hour was late, it was agreed to adjourn it for a week. X.The Court then adjourned at, 5.16 p.m.