COURT CASE.

Timaru Herald, Volume XIIC, Issue 13682, 26 August 1908, Page 6

COURT CASE.

RATTRAY v. MILLER TRUST.

In this (heard at Waimate and judgment given last week) a claim for £l9l Os 3d for sheep sold and delivered and outs borrowed and not. returned, George Milkr, the manager of. the (.stale of the late John Miller, "was" really the defendant, having, under the terms of tha testators will, Uie option of purchasing the farm, which option he had elected "to exorcise, and although the purchase had not been completed, he was now regarded . and now in possession of the owner. " With regard to the sheep transactions," proceeds the judgment, "the plaintiff states that he sold to George Miller the sheep of the kind and number, and at the teiius alleged, but J. Miller gives the statement a direct contradiction. A curious feature of the case, however, is this :. that while denying the .transactions alleged by tha plaintiff, the defendants admit a liability of £72 for sheep bought from the plaintiff at other times than those alleged in by the plaintiff and the plaintiff in turn denies these transactions. The : defendants just before the action paid the liability, and Mr White, who conducted the defendants' case with conspicuous fairness, allows ihis payment to bs taken as payment pro tanto of any proved liability." Obviously, however, this payment does not help the plaintiff in the proof of the particular transactions set up; and as to these I can see no further evidence of a satisfactoiy sort to weigh the balauce on the side of the plaintiff. The plaintiffs statement as to the sale of sheep appears to have the corroboration of his son in regard to the principal transactions alleged to have taken place on August 7, although I think it would be truer to say that the plaintiff swears to the sale on that date because he believes his eon can honestly do so. But unfortunately the date fixed by his son is a date on which the defendant, Miller, fairly shows from his diary he could not have very well been present. The evideuce of Mrs Rattray is too vague and uncertain to help the plaintiff in the proof of the transaction. Besides this, the plaintiff produced, and was allowed without objection to put iii as evidence, a few memorandum books. It was from one of these indeed, that Rattray, junr., presumed to fix the date ho did for the sale of sheep just mentioned. An inspection of these books, in-which are a number of rough pencil entries or transactions, without order or consecutiveness, shows that they are, in themselves, very untrustworthy guides. This, indeed, seems to have been recognised by the plaintiff before action, because both the \ executors testify to a statement made by the plaintiff that he had no dates for any claim against the estate, and, hi fact, relied upon the entries of George Miller for the proof of his claim. Miller, i as his duty as committee was,, has kept regular books of accounts, and these books, so referred to by the plaintiff, give no countenance to the (specific transactions set up by him. The plaintiff had no further proof. Mr Raymond-■" contrived to envelope the defendant in a cloudy suspicion by cross-examination on'the subject of his management of the estate, and indeed, his couivse of conduct in limning a dealing business of his own along with a similar business as manager, was conduct of a reprehensible nature in itself and calculated to give ground for adverse comment, but suspicion cannot fill up deficiency of proof, and the plaintiff in regard to these sheip transactions must fail. His claim was a stale one to start with—it is almost statute-barred by prescription, and in an action where from lapse of time, some written proof of the transactions set up was all important, if not practically essential, he cannot expect to succeed. The claim for oats stands upon a different footing. For this the plaintiff is able to rely uyon ?n admi*>nop'of the defendants' liability n-tiis books kept by George Miller. The claim for interest being charged • upon (he amount (of the sheep transactions the plaintiff has failed to prove* is, of cour-e, disallowed. There will be judgment for £7 Is 6d." His Worship allowed plaintiff £5 8.- and defendants £l3. Ss costs.. At the hearing Mr S. G. Raymond and, Mr A. G. Perry appeared-for plaintiff, and Mr J."W. White for the "defendants.