MAGISTRATE'S COURT, HAMILTON.

Waikato Argus, Volume XXI, Issue 3259, 17 August 1906, Page 2

MAGISTRATE'S COURT, HAMILTON.

Yesterday.— (Before Mr W. H. Norfchcroft, S.M.) DISPUTE OVER A HORSE. Henry E. Tristram v. Patrick C. Carr: Claim .£l3 7s 6d, less £5 paid by cheque, or the return of a mare leased by plaintiff for breeding purposes. Defendant was also charged with trespass. Mr MacDiarmid appeared for the plaintiff, and Mr A. Swarbriok for the defence. Plaintiff, in his evidence, said that in 1903 he hired defendant’s mare for £lO for breeding purposes. He was to keep her till the foal was weaned, the foal to be witness’ property. In 1904 in the Hamilton showground he asked defendant to again let him have the mare to get another foal. Defendant refused, but promised to let him have her the following year for £l2. Witness said the figure was ridiculous. In September, 1905, he got a letter from Carr asking if he wanted the mare for the season. In Cambridge he saw Can, who told him he had changed his mind and would keep her himself. By appointment he met Carr at the Hamilton railway station on Saturday night, and witness agreed to take the mare on condition that she was in foal. Two days afterwards Carr informed him he would lather have the money. Plaintiff re- lied, *• That will be four guineas,” to which was answered, “ Better make it £5 10s.” Plaintiff promised to give the amount if the mare proved to be in foal. Carr asked him to add the service of the horse on. but plaintiff refused to do so, as the cost of service was charged to him. The mare at that time was at Hautapu. When she was brought down to Hamilton she was very ill. Carr telephoned a few day afterwards and asked for a cheque, but plaintiff refused, as be did not know whether the mare would live ; but subsequently sent a cheque for £2 10s. Then as Carr agreed to knock off 10s if the whole amount were paid. Plaintiff sent him another cheque for £2 10s. He then got a wire from Carr saying that there must be a mistake, as the amount agreed upon was £l2 Witness wired back saying that the agreement was for £5 10s. He then wrote offering to let Carr have the mare back if he returned the £5, with £3, cost of service. On June 24 Carr came down from Cambridge and took the mare out of witness’ paddock. He then sent a lawyer’s letter to Carr on June 22, asking for £8 7s 6d, and received in return a cheque for £5, stating that this was in full settlement. Witness paid £3 for the service of the horse and hie charge of 7s 6d for grazing was a reasonable one.

Joseph Radford, groom, said the service was charged to Tristram. The defendant in his evidence said that two years ago he hired his mare to Mr Tristram for the purpose of raising a foal. The following year he bred from her himself and the third year she was also put to Young Salisbury. Tristram paid him £lO for the first year, and on the second occasion witness asked £2 10s more. Plaintiff demurred at first, but afterwards said he would accept, and it was left to the defendant to arrange for the service, the price to be £3 10s, with half guarantee. They met again later on in Cambridge, and it was agreed that Tristram should take the mare, and plaintiff said he would send the cheque in about a week. Witness said there was no hurry, but when be did send it to add the service fee, £3 10s, as witness was responsible. Tristram said he had already paid £3, the fee having been reduced on account of his sending two mares. Witness endorsed the evidence of plaintiff regarding the payment of the various amounts and the sending of the telegram. When he received a letter from Tristram stating that he could have the mare back on payment of £5 and £3 for service, defendant came down and looked for Tristram, but there was no one at his house. He got the mare and again looked for plaintiff, but not finding him left a note for witness’ brother-in-law asking him to tell Tristram He had taken the mare and would write him in a few days. He then saw Radford, who said he held him (witness) responsible for the service and had booked it to him in his little book, and that any arrangement between plaintiff and Morrow (the owner) had nothing to do with him. He had posted the cheque to plaintiff before he received the demand from Mr MacDiarmid.

W. Giles and A. Peacock gave evidence as to being present when Radford told Carr that he had booked the service of the horse to him.

Judgment was given for .£9 17s 6d, the £8 referred to, 7s 6d for feed and £1 for trespass, and costs £5 14s. PARK BEOS V. J. BETTLET, Claim £8 Os 9d, amount due and interest. Mr P. Watts appeared for plaintiffs and Mr Gillies for the defence. .Robert Parr said Bettley had dealt with him for a number of years and had paid him interest on overdue accounts. By His Worship : Defendant never came into the shop and never disputed any items. His Worship said the payment of interest was simply a contract, and unless it were shown that defendant had been told that interest would be charged or had seen a placard in the shop to this effect, the claim for interest would not stand. It was not sufficient that defendant might have paid interest on previous accounts without his attention being specially drawn to the fact, and it was not sufficient that such a notification should appear on the billhead. Witness continued : In his statements he always showed interest as a separate item. Defendant did not at any time object. The amount of £6 11s lOd had been received since the summons was issued. Interest had been charged separately on several occasions, and the accounts had been paid in full. By Mr Gillies : He had no placards in his shop referring to interest} he had had no conversation with Mr Bettley regarding interest. He did not know when Bettley paid £6 11s lOd that there was a contra account for 11s Id.

Defendant said he had never made an agreement to pay Mr. Parr interest. He handed the cheque for £6l2s lOd to Mr Parr’s storeman at 9.30 a.m. on July 16th, and the summons was not served until 11 o’clock at night. He had dealt with Mr Parr and his father for 20 years, and never knew that he paid him any interest. After he received the original statement he received several accounts with interest added. He had noticed on the billheads that interest was charged on overdue accounts. The Bench: In that case you must pay up the interest. Witness ; You will find that on most billheads. The Bench: Yes; but people never see it. By Mr Gillies : His attention was only drawn to the interest clausa when the case came on. Judgment was given for 17s lOd interest, without costs. JUDGMENT. Judgment was given tor defendant in the case Missen v. C. O. Phair, in which plaintiff claimed the return of £SO deposit on a farm purchased from defendant. Mr MacDiarmid appeared for plaintiff, and Mr H. Gillies tor the defence. The latter asked leave to appeal, which was granted.