DISTRICT COURT.

Wanganui Herald, Volume XII, Issue 9511, 11 September 1879, Page 2

DISTRICT COURT.

Thursday, September 11, 1879.

(Before E. Hardcastle, Esq., Distriot Judge.)

LINGAED V. MCKITTRIOK.

Mr Barnicoat for plaintiff, and Mr Hutchison for defendant.

Mr Barnicoat in opening for the plaintiff stated that the action was brought by his client to recover the sum of £160, price agreed upon by letter dated, 15th March, for the mare Expectation. The defendant tried to show that the agreement was invalid, and that he waa drunk when it was made.

William Lingard deposed— I met Mr McKittrick in Wanganui about 10 30 in the morning He referred to an offer he had made at Tatea for my mare Expectation, about three weeks before—on which occasion he offered me £200 He said he was aware the mare was for sale that day by F. R. j- acb d f ?HMmrt. te f '*T accepted his offer I told him that if he still wished to have

£150 he would give me that. Defendant made an offer which, was at ouce put in writing,. • The writing produced is the

offer. Mr Hutchison objected to the writing because it was pretended tbat it was an agreement. There was no stamp on it, and it was consequently invalid.

Mr Barniooat replied that he had not decided to consider the letter as an agreement,but an offer of which he would afterwards prove the acceptance. The document was finally put in as an offer.

By witness. — The writing is mine, signature is defendant's. We were standing in one of the passages of the Rutland Hotel. It wan written in my pocket book. Mr Jackson was to sell the horse as advertised. Belcher came in at the moment of defendant signing, I explained the offer to him. McKittrick spoke about going to England. The offer was made aubject to that. I told him that I would not sell the mare for less than £150. I accepted the offer verbally on that date. When defendant signed his name he waa perfectly sober. It was about halfrpaat ten in the morning. We were talking together for three quarters of an hour, There was a great deal of talk between us relative to other matters also; Since signing the offer I have seen defendant many times. The next time I saw him was a week or ten days before the 26th April, He wanted to know how the mare looked and where she was running. I told him where she was, and mentioned the date of 26th April, when he was to take delivery of her. I made a remark at the same time about his going to -England. He did not go to England. I told him that the mare was running at Mr Tom Watson's at Waverley. I have always been ready and willing to give delivery. I next wrote him a letter on 24th April.

Letter produced and put in. It stated that, not having been able to get a better offer, the offer of £150 waa accepted. It stated also that this was more than had been bid for it, £145 being the highest. Examination continued — Next saw defendant on his own farm. I asked him how it was that he had not answered my letter,and told him that I had a promissory note ready for his signature. He asked me not to be too hard on him, farm produce was down, and he could not afford to keap a £150 horse. He said he would rather give give me something to let him off the bargain. He did not dispute the bargain. I valued the horse at the time at £200. Defendant had previously offered me £200, but I refnsed, as I wanted £250. 1 was also offered £200 in Wellington. At the sale £140 odd was offered.

Cross-examined — A man named Butler offered that at Jackson's sale. Did not know Butler, or speak to him. Eemember the time of races at Waverley. The mare was running in the race. He was excited because the mare had not won the race. He said if she had not been pulled Bhe would have won. He aaid he would back her for £200 with his own mount. She belonged to me alone. When I saw defendant in town I did not notice hia condition. I showed the agreement to several people, and told them that I had sold it to defendant. I accepted the offer but did not put it in writing. Do not remember if I showed other documents in my pocket book at same time. Defendant told me not to sell under £150, but I might sell for more. I was a couple of hours at the sale. At Waverley the interview took place in the street. Most probably we went into one of the hotels. Defendant did not shout a bottle of champagne for me to let him off. He Baked me to let him off but I could not. And when I talked about law said something about being a hard customer at law. Tom Watson sold the horse to me.

Re-examined — The leaf was torn out of the pocket book to get it stamped. The mare won the Provincial race at Wellington 6 or 8 weeks before the offer was made*

• John Belcher deposed — Am a settler at Waitotara. Know the mare Expectation about two years. Have ridden her at races. Defendant offered me £200 for the mare the day of the Patea Races, in February last. He was sober. Remember the mare being put up at Jackson's sale about a month after Patea Races. Saw defendant with Lingard in the Rutland Hotel. They were talking about the mare. Lingard showed me an agreement in his pocket book. We read it over. Defendant said " That's right, I'll take her for £16© if I don't go home." Defendant was perfectly sober. We were all standing in the passage together. Have known defendant three or four years. We were talking about an hour. Was at the sale, and heard £147 bid. I consider the horse then worth what was offered. In Wellington £230 was bid at auction. She is still worth a lot of money as a racer.

Cross-examined — The mare won the Patea race. Walked over for it. The race was not contested; I was interested in the mare. I don't know who bid £147. Think it was Butler. Don't know if he is a bookmaker.

Major MEorae deposed — Have had 40 years experience of racehorses. Know Expectation. I think she was worth in March last from £100 to £150. Some people might give more, but I should not. Cross-Examined — Don't remember the mare's exact performances, but believe she ran well. She was one of the best horses, but I don't know if she won anything. Richard Wheeler deposed — I am ahorse trainer. Know Expectation. Had her from the firat. Took her to several races. Was asked by several what I would take for her, but said she was not for sale. I was at Jackson'a sale, and thought I heard Butler bid, but am not Bure. I value the mare at About £100 at the time she was put up for sale. Tom Waison deposed — I am a station hand at Waverley. Know the mare Expectation. The mare was mine when Wheeler was training her. I bred her 5 and sold her for £50 about fifteen months ago. I thought her worth more, but was pushed for money, and obliged to sell. | Have seen the mare lately. She is in sound condition, and always has been. I consider in March laßt she was worth £130, and U worth that now. Cross-examined — Saw mare last Saturday. She was running in the paddock. It was about 4 o'clock. I just put my hand on her and stroked her. Saw her about two months ago, say twice a week. Have frequently handled her. I saw the agreement in Mr Lingard's pocket book. I did not take particular notice of it. But I think the figures were under the writing. The figures were £150. I said perhaps it is not defendant's writing, but Mr Lingard said it was. Mr Lingard said he expected L2OO for her i£ Bhe was in foai. I said that I did not think she was in foal. Remember having a conversation with Belcher; Do not remember his saying that if Lingard got L2OO for her, he was to have LIOO.

Re-examined — Belcher told me that he was shares with Mr Lingard when he went to Wellington, ThoStßowedeposed— l am a Btud master

in Wanganui. Know the mare. She won several races, and was worth in March last LI 00 to Ll5O. Mrßarnicdnt elected to pay stamps and fines on the agreement to make it valid. Mr Hutchison moved for a nonsuit on various grounds, but was overruled. His Honor deferred judgment till the afternoon.