Supreme Court

Star (Christchurch), Issue 182, 11 December 1868, Page 2

Supreme Court-

NISI PRIUS. i JFbidat, December 10/ (Before Mr Justice Gresson ahd a Cortimori ! ,•• :■•.■-•.■ «Airy.);>l \ .JULIAN r..MA#HEK AND ANOTHER. ; Counsel for plaintiff/ Mr Joyht.'^i^'. .<! '■< ! Counsel for defeadjrat, Mr iW. William^ ' • ; Mr Samuel Clothier waaz-chOßen foreman • of the jury, I The aqtion in , this case, is, .brought by , Jo«eph WillUm Julian, of tytteltop, itffunftf ' : ';. 'i ' ■'- f) : ', is) 'j r - ■ ■■ < '•' ■ ' '■ **-

the defendants, to recover the sum of £212, balance alleged to be due on the price of a s,B»ElJity^izfioaUjQld.-*n.£L-jlelivered to them in October, 1866. Defendants denied ail the material allegations contained in plaintiff's declaration ; ami. the question -which the jury had to determine was , whether the coals had been sold and delivered, and whether the alleged balance of £212 still remained owing bj the defendants to the plaintiff. Mr Joynt opened the plaintiff's case, and called the following evidence : — Joseph William Julian : lam the plaintiff in this action. In April, 1866, 1 wbb carrying on business as a coal merchant in Ly ttelton. I gave the defendants the goodwill of the yards in that month, on condition that they ■would buy coal from me, which I supplied them with. There was a written agreement aatered into between us. The agreement produced is the same ; it is signed by the defendants ; it is dated April 10, 1866. In pursuance of that agreement I supplied defendants -with coals at the price mentioued. In October, 1866. I sold the defendants a cargo of coals (120 tons ex brig Spartan) at 439 a ton, and 87 tons (ex Ellon Castle) at 40s per ton. I know of my own knowledge that the coals were all delivered in defendants' yards. The price of the two cargoes would amount to about £632. Defendants have paid me on account from time to time £420, leaving a balance still due of £212. Cross-examined by Mr Williams : I gave for the Spartan's coals 34s per ton cash. I gave a three-month's bill to Mr Hargreaves for the coals per Ellon Castle, at 35s per ton. I don't suppose that all the coals were delivered on the one day. The defendant! weighed the coals on the weighbridge at Lytteltoh. To the best of my belief they took tally of the weight from the weighbridge. The document handed in is in my handwriting. lam suing the defendants for the money they owe me. The defendants never refused the first cargo ; they said they thought there was no room iv the yard to take the second cargs iv. I replied that I would find hands to trim the coals ; they agreed to take them in, and I said I would give them plenty of time to pay the money. I never offered them £1 a-piece to take the coals in to oblige me ; it was a bond fide sale ; I supplied myself with ten tons of coals before I sold the cargo to the defendants. I charged defendants with 120 tons of coals ; the ten tons were not included. The coals were not sent to the yard to be sold on my account. I never told the defendants to take the coals and sell them on ray behalf. 1 told them that I had bought tham cheaper than the first cargo. I believe the defendants closed the gates on one occasion to prevent delivery of the coals. I did not see the gates clOßed. I don't know that I went up and asked the defendants why they had closed the gates. I don't recollect anyone complain ing as to the quality of the coals ; I don't recollect Griffiths making any complaint ; they were a good lot of coals. No conversation passed between Griffiths and Mather and myself as to their selling the coals on my own account. , Re-examined by Mr Joynt : The invoices produced are those shewing the quantity of coals that I bought from the Spartan and Ellen Castle. John Kenner — I am a coal merchant residing in Lyttelton. 1 recollect delivering coals at Mather and Griffith's yards', Ly ttelton, in October, 1866. I delivered from the Spartan and Ellon Castle. I don't know what the quantities exactly were. The defendants took delivery of tbe first cargo. They ob jected to taking a part of the secoud cargo. I am not certain that I had delivered any portion of the eecond cargo before they objected ; I believe I had. They said they hadn't room. I called Mr Julian, and he came with me to the yard, and saw defendants. They said to us that they hadn't room to take them in, and they wouldn't take them. Mr Julian said he had bought the coals, and would find men to heave them back, and likewise pay tbe cartage of them from the vessel to the yard. By heaving back the coals, I mean trimming them. The cartage from the vessel to tbe yard was Is 6d a ton. He said he would give them plenty of time to pay for them. They thereupon opened the gates and took the- c als in. Mather and Griffith's paid me for the carting of the first cargo, and Mr Julian for the second. Cross-examined by Mr Williams — I recollect Griffiths stopping Mr Julian and myself on the wharf, and speaking to us about the second time. Richard Wood : lam a coal-merchant in Lyttelton. At one time, I asked Mather and Griffiths if they would sell out their interest in the yards ; the negotiation fell through. The defendants told me they were getting the coals from Mr Julian at a certain figure ; they said they could not in consequence take any coals from me. Cross-examined by Mr, Williams — This was in June or JtflyJ 1867. ' This was plaintiff's case. Evan Griffiths: I am one of tlie defendants in this action. I recollect the document produced being signed by me. I bought some coals at 435 ; the coals were not brought into the yard under the agreement. We told plaintiff that being supplied with coals, we did not require more. He said that he had bought them cheap, and that we should have them cheap. He gave us the pit certificate, and we agreed to take them according to it. He said that there were about 133 tons. We agreed to take them, as we thought that we should be able to meet the bill for their price. The coals were not weighed. I found that some coals were being discharged into a craft alongside the ship.. I. refused to take any more, and asked Mr Julian, who had aulliorized the delivery into the craft, after we had agreed to take them according to" the pit certificate. . He replied that "probably the captain of the ship had done io. . He acknowledged that ten tons had been 'shipped in the craft, and five fnto the steamers. I.refused to be answerable for the quantity. Tile 'remainder of the coals was tak&^ u .itffir*3Wrar \ - we -gave^ no bills; nor -*A-'-\. % .'itJKij »•'£■:-..■ ...,.:..■•

did we sign for quantity. We^were to s^lU the coals for him. They were 'paid for by J instalments. Mr Julian. received_the..mone> ftom time to time. We never bought the cqals ; we took them to sell on commission fox the plaintiff. In fact, we were acting ac plaintiff's salesmen. I told Mr Julian that I | could pay for the cartage and trimming. He offered to pay both charges. I said that 1 could not buy the coals as we could not meet the bills. He replied, "You need not Rive bills, sell them for me." I refused to allow my dray to be used. I told him that as he had pat the coals into the yard at his own risk, he might find horses to draw them. Kenner then undertook the job, and finished i the cartage of the coals. I closed the gates i at 6 p.m. The next day I found that coals were still coming in. Plaintiff was standing by and said, " Never mind, old man, it will be all right." He agreed to pay all expenses, and asked us to cell them for him on the best terms po.-sible. He said that we could do better for him than he could for himself. I asked him if he wished to take the money every Saturday, which we received during the week. He replied, " Put the money you ! receive into the bank, and I will ask you from time to time for what I want." He gave us the account for the coals. I aske ' him what he meant by doing so. I told him that he had first agreed that we should sell the coals for him, and now he asked for the money. He said that I had the coals and must pay for them ; he must be satisfied somehow or another. I gave him notice to remove the coals. He said "Keep the bill merely as a memorandum, and go on selling as we agreed." Upon this, we commenced the coals, and he used to come for instal- j ments of money from time to time. In this way, we have paid him at least £400 ; I believe £420. He pressed me for the money still owing, and I said that my partner had neglected to make out the account sales, and advised Mr Julian to examine the books with my partner. I told him that there was a good deal of money for the coals on our books, and that we would square up with him. He left me apparently vexed, and we heard no more of him until we had received some more coals into .the yards. He gave me a second bill for the conle, and asked me when I was going to pay him for them. I reminded him of the agreement made between us, and refused to pay him a penny until he had examined the books and got the account sales. 1 heard nothing more from him uutil I was served with a writ. Cross-examined: The account sales have been made out since the action commenced. We did not give plaintiff account sales before, as we did not think that we were bound to do so. Both cargoes have been sold ; some of them remained about ten months in our yards. Benjamin Mather, the other defendant, recapitulated many of the facts already brought out in evidence. After hearing some further evidence, the addresses of Counsel, and the summing up of the Judge, the jury returned a verdict for the defendants on all the issues.