RESIDENT MAGISTRATE'S COURT

Thames Star, Volume VII, Issue 1877, 8 January 1875, Page 2

RESIDENT MAGISTRATE'S COURT

THIS DAY. (Before W. Fbaseb, Esq., 8.M.) CIVIL SIDE. . Adjoubned Gases The Appeal Cases —in. which the Tcokey Quartzmining Company, Caledonian, Golden .Crown and Kuranui Goldmining Companies, and the United Pumping Association. appealed against the Borough assessment —were adjourned by consent. _lAlfesir^nthonxjE „£,. F.. H.JUpyd-TT A claim" of £3 15s, account stated. Adjourned to the 15th instant. Case Stbuck Out. George Hulme VJ. Mi£ch«lU —A claim of £3 168 Id, for goods. This case had, been on the" list on two Court days prerious, and had been adjourned in consequence of both parties'bcing absent. On the case being called to day, neither party showed up, ana the case was struck out. LOWNDES V LINTON. This was a claim for a breach of contract, the amount sued for being Mr Tyler for plaintiff; Mr Macdonald for defendant. Mr Tyler stated that the contract was for the sale of a yacht to be purchased by defendant with 80. tons firewood; the firewood not having been delivered in time of contract, tte plaintiff now claimed the. value of the firewood. Mr Tyler stated the circumstances under which the agreement was made. Joseph Eowndes deposed that he in November last was owner of the yacht Galatea. Enew defendant. „ Remembered the sth of November last. Had occasion to go to Te Komo to land a passenger. The Lintons brought off the boat to take the passenger, and. one of the Linton boys told witness that his father wanted to see him about the Galatea. Witness went, accompanied by his son James, defendant asked witness what he would take for his yacht. He answered £25, but on defendant offering to give 80" tons of wood, at 6s per ton, witness agreed to take it; but at first told defendant to examine the boat for his own satisfaction. In answer to Mrs Linton at thetime, he informed her that the boat leaked a little at thegarboard streaks. He also said that she wanted some repairing with zinc, and defendant said "Oh, I have g/ot 7 plenty; of zinc and tar in the barn." Defendant examined her. -He went on board, and looked all over her. Witness showed him the new fastenings he had macle, and how he had been spending a lot of money in improvements. They then sailed about for some time..- Linton's boys were on board, and witness showed them how to handle the yacht. Witness subsequently went ashore, and saw defendant alone. They were looking at the yacht' and defendant expressed himself satisfied with her, and said he would give the 80 tons of firewood for her. He said he would not be able to give a load before three weeks. It would take him a week to finish shearing, and in another week he would be able to give 30 tons, and a load every fortnight afterwards. Witness went on board to think it over. He came ashore again with one of his sons, and said to Linton he would clinch the bargain if he would give him a memorandum of agreement to deliver the firewood. Defendant gave witness a slate and told him to write what he wanted

to say. Witness wrote upon the slate what he wished defendant to say. The defendant copied it, and appended -his signature. (The memorandum was produced.) His Worship said the document was a promissroy note, and should have been stamped. Mr Tyler said a promissory note must contain a promise to pay a specified sum of money. His Worship said it was for value of ' the boat, and was therefore equivalent to money. • (The law was looked up upon-this*, point.) - - \ Mr Tyler apprehended that the dbcu- "V ment was not an agreement, because no mutuality appeared in it; nor was it a - minute of an agreement. His Worship said he did not wish to ' press the objection, so long as defendant's solicitor was satisfied.

Mr Macdonald said he agreed with his friend that it was not aa agreement. Examination continued—Witness gave' delivery of the Galatea on Saturday, and on the following Monday he and his sons were sailing in the Two Brothers, and they passed Mr Linton in the Galatea, bound for Coromandel. He again met them on the water,, and they spoke one ■ another. Sometime after he received a note from defendant, asking* to come and ■ ■ > take the boat back again^ as she. was not satisfactory. Witness afterwards had a verbal .interview with defendant,, and.- , asked him how he could take the cutter 1 back in the face of the agreement given *- him by defendant, which" had passed Tout of hands. He wanted the wood kso as to pay for new sails which he had ordered for the Two Brothers. Defendant had. been told by a man Jasper that the boat was rotten. Defendant said it was no use the cutter coming to the. Como, as he would give no firewood. Witness went to the Komo some time after, and had ~ a look at the Galatea. She. was lying * . high and dry upon the beach, v and on '.- looking under her bilge he saw that she was lying on a large stone. He showed defendant what was wanted, and he (defendant) acknowledged' that she was'not rotten. Witness said he would take the boat back on examination if he found her to be in as sound a condition as when he , handed her to defendant on floating the. , boat; but on landing her high, and dry beside some piles, witness discovered that the water rushed out of her bottom, and said he could not take the boat in that condition —defendant had ruined her. Defendant told witness to.take'his rotten old boat out of that, or he would send her adrift. He also said he would pitch witness into the water. Witness asked * captain of a cutter there at the time to hold a survey over the boat, when Linton sang out " Oh he's got enough to do to mind his own work." Witness made her fast to the stem of a living tree, which would have, held a ship." Witness had heard something about the Galatea having since come to grief. He originally gave £30 for the' boat, but with new masts, rigging and carpenter's work, she ~ had cost him about £60.

" By-Mr Maedonald—l did not warrant the Galatea as sound. Defendant agreed to take her as she was. Defendant had looked at every portion of the boat that wa3 comeatablo. I told defendant that I wished for the agreement on Saturday night, because I was going fo Shortland shortly. Linton did not remind me that he had no opportunity of seeing the boat. I will swear that I did hot say to Linton " If the boat is not all I hare represented her to be I will take her back*" , When Linton's boy brought me a letter from his father I asked him what his father meant. The boy answered that his father had been told by a man that the boat was rotten, and the mother and family got frightened aj; this. I never said "It does not matter, as I have not sold the wood yet;'' nor that the boat would sell better than the wood; nqr that I would let her remain there till I could sell her. I.did use brown paper in repairing the boat. Paper is largely used in shipbuilding. The piece of paper produced is such as would be used in making a temporary patch. There was no kerosene tin used in repairing the boat. The boat would either have had to.Have a new garboard streak, or be periodically patched up. I explained all to defendant. I did put oh a patch since the sale, after I received the letter asking me to take the boat back. ■'■> ■ ■ ":'\ :-'■7 r:.■■■■■<- : •• : The witness was re-examined by Mr .Tyler.; —: x ■■■■■ •. -\ '-:X James Lowndes, son of the last witness, corroborated the evidence previously given as to the. conversation which had taken place between the defendant and his father, and the subsequent agreement. As to the "water running out of the boat, witness said his father weat off to Mr , Linton, who way on a cutter in the stream, to look at the leek. The captain of the cutter said he could see the water running from where he was. Mr Linton would not come ashore to look at it. William Lowndes gave a circumstantial account of the case, confirmatory of what had been said by the two previous witnesses. . ■.•' ''•■ . :■■•■ .:.- \- • .-' : ■■:.• ■■ Witness was briefly cross-examined by Mr Maedonald. :'r J This concluded the evidence in plaintiff's case, and Mr Maedonald opened the case for the defence. John George Linton said—l reside at Te Eomo. Lovrdes came and asked about buying the boat on .Friday. I was shears ing sheep. I was to give him 80 tons of firewood if she was a good sound, boat. ... Lowndes said he had expected £70 for her. He was to put the boat on shore so as I could see her bottom. He brought the boat. We had a sail in her, and. she seemed all right. I went ashore then to have dinner. He was to put her ashore on the Sunday. He came up then to the house and said he must go to Shortland at once ; and wanted something to show that he had

sold the boat. On the strength of what lie told me I signed the paper. I wanted the boat and do now ; and if the boat was sound I would give him the 80 tonspf wood. I had to take a friend of mine to Coro rcandel to meet the steamer. She is covered with this sort of thing (alluding to paper), and is quite rotten. Brought old Captain Gillies here. She is now in the same state as when Captain Gillies saw her. When I saw the condition she was in I sent for Low<ndes, but he had gone away. It was after I returned from Coromandi'l that I discovered the state she was in. I then sent the note to him, an^fsaid :to come and take bis boat, as sbjflPts not as represented; this was the aJ^Topportunity I had. By the Court: 1 was not in hailing distance when I returned that day from Coromandel. When he came lie said he, had been to Shortland, and said he would; take the boat back, and was very glad _ a man from Mercury Bay would buy her. My two little boys were there, He then commenced cleaning her bottom. He then asked me to give him, a pull over, and asked me for some tar and tin to put on her. I then went away. When I got the wool aboard I went on board with the load, and when there-be said " Lintofe, I will make you have the boat." I then said she ought to be burned. He sent a telegram to, Auckland to have the case arbitrated. I would not consent. Captain Gillies took the paper produced off the Galatea, about midships. I am; not afeQatman myself. :.-. [Left sitting.] ' j