DISTRICT COURT.

Ashburton Guardian, Volume IV, Issue 1073, 13 October 1883, Page 2

DISTRICT COURT.

ASHBURTON. -To-day. [Before his Honor Judge Ward.] IN BANKRUPTCY. - In re J. L. Manning.—Mr Crisp made application for discharge j which was granted. - In re D. Clifton.—Mr Wilding asked for letters of administration, and stated that the necessary affidavit had been made.—Granted.

In re J. A. Fouhtaine.—An application for an order of discharge made by Mr Parnell was adjourned till next Court day on account of an affidavit of notices having been posted not being put in. ' Mclntyre v. Perks, claim LlB9 Is for breach of contract. Mr Wilding appeared for plaintiff and Mr Purnell for defendant. Mr Purnell-raised a preliminary objection to the first two paragraphs of the particulars, and these were struck out. —Mr Wilding in opening his -case said that the claim arose on account of loss incurred from defendant not carrying out his contract to thresh certain grain. Counsel said that the grain was stacked and defendant promised to bring his machine by a certain time. A very heavy sou’wester came on and the stacks were drenched.—His Honor pointed out that if the stacks wore properly built they could not have been damaged, and at any rate defendantcould scarcely be considered liable. After further conversation the following evidence was called :—Robert Mclntyre, farmer at Ashburton Porks, said that on 3rd March he saw defendant in company with other men in Burnett street,and had a conversation with him regarding some wheat witness wanted to have threshed. Defendant made arrangements to come • an I do the work within nine days, but he did not fulfil his promise. Saw defendant several times and complained of the delay and Perks gave as a reason that he was threshing for Mr E. G Wright. The weather was fair during the month of March, and witness’s stacks were dry Sampled the stacks several times. In good weather live or six days would have sufficed to complete the threshing. A heavy sou’-wester came on March 31st, which blew the rain into the stacks. When defendant came on April 28th the stacks were “ growed ” on the south-west side. The threshing was delayed for a week after the defendant came, on account of the rain. The threshing itself occupied a fortnight, moat of tho time being wot, and the result being further injury to the grain. Witness complained to defendant of the delay, and at the thpe of the threshing told him he would sue him for damages. Estimated that 480 bushels had been destroyed. If defendant had fulfilled his promite the wheat would have fetched 4a 3d a bushel. Evidence was then taken as to deterioration in the price of the wheat damaged, The stacks were put up in January by witness with the assistance of two men named Brown and Sullivan. The stacks were faithfully built, but nothing would withstand three days’ sou’wester. They were not thatched nor was it usual to do this in tlie colony when it was intended to thresh in the early autumn. The machine had to be stopped more than once during the threshing. Cross - examined by Mr Purnell: First saw defendant about the threshing at Christmas time, when Perks came to b.espeak the work, but no 1 arrangement was come to. Kepiembered. defendant coming to witness’s house in beginning of February, but nothing was said about threshing. No other persona were present at the interview with Perks in Burnett street. Would swear 1 hat defendant never mentioned anything he was about todoat other farms. Did uptsuggest defendant’s going to Friedlander’s to gat <

an order for Healey’s thre»hing.-Nothing was said about the weather by defendant on this occasion. Witness had complained to defendant about the breaking ,of the contract several times. Had paid LSO to Perks for the threshing, and had refused to pay any more. Mr Caldecott had never expressed approval or disapproval as to the way in which the stacks were built Witness had been offered 4s 3d for the wheat by Mr Saunders, and would have sold it at that price had it been threshed in time. The wheat of witness was Hunter’s white, and the oats were'Tartarean. —Re-examined : All the grain went to Mr Saunders. Could have got 2s for the oats at the time they were threshed.—Michael Healey, farmer at Seafield, remembered being present at the interview between the plaintiff and defendant in Burnett street on March 3. Perks promised Mclntyre that he would come and thresh in nine days. Defendant came to witness’s p'ace .some time after, and he was occupied there about a f ortnight. It is not usual in New Zealand to thatch stacks that are to be threshed in the early autumn. Crossexamined by Mr Purnell: It was arranged that Perks was,to goto witness’s before going to Mclntyre’s, and also to Husband’s. Plaintiff was present when this arrangement was made, and witness said that he would move the machine from Husband’s place to Mclntyre’s, as the latter’s horses could not do it. Between the time of this interview and the threshing the weather was bad.—Peter Husband, farmer, was present at the interview in Burnett street, when Perks promisbed to thresh for Mclntyre in about nine days. Witness suggested to defendant not to : bind himself to a day, and he then said he'would go to plaintiff’s place in ten days, weather permitting. Shifted Perks’a machine twice —from Mr Wright’s place to ‘ .Mt Wix’s, and from, the latter’s to Mr Healey’s. Witness’s stacks were damaged by the rain, and this was the case throughout the county.—Cross-examined by Mr Purnell; Did not remember Perks saying he was going to thresh for Ml Wright. The nightthe machine was taken from witness’s to plaintiff’s place it commenced to rain heavily and continued off and on for a fortnight. The harvest was a very bad one, and farmers lost on account of wheat being damaged. Did not remember anybody else than those he. had mentioned being present at the Burnett street interview.—William Brown, farmer and contractor, gave evidence as to the meeting between plaintiff and defendant in March similar’ to that of previous witnesses. Worked at Mclntyre’s farm, and the stacks were properly built.!—Crossexamined : Perks said something about

going to Mr Wright’s, but witness did not hear anything else.--J mes Johnston, farmer, remembered meeting Perkaand Mclntyre, and witness promised .to .giy< defendant, bisthreshing. It was to be done after the plaintiff’s, and Perks said he would be at Mclntyre’s in about nine or eleven days,.—Cross-examined: G'uld not say if he had made a statement that thi meeting took place shout the close oi March. Perks said he would be at Mclntyre’s from nine or eleven days. Plaintiff- Was present - and made no remark. In conversation with M‘lntyre, the latterf said that the weather was keeping Perks back, ~ but he was worth -waiting fdP as he was a good thresher, and he had a godd machine, Witness’s stacks were hot much damaged by wet. His wheat was pearl, and he thought that kind more liable to damage than Hunter’s white. Sold his wheat immediately after threshing at 4s lid. —Re-examined : Sold his wheat in May to -Mr Roberts. , His threshing was done after Mclntyre’s.—Daniel Sullivan gave evidence to the effect that .plaintiff’s grain was got in well, and was well stacked. The grain was afterwards damaged by the wet. —Cross-examined : It was a wet, season and rained considerably before Perks came'. Witness's experience of ,stacking was limited. —R., Patterson, farmer, saw the threshing at Mclntyre’s

when a good deal of grown grain was being put Into the machine. The stacks appeared to be properly built. The weather was very wet in March, and even well-built stacks, which were not thatched, suffered. —Cross-examined: The stacks were about Bor road, and witness never took particular notice of them.—S. Saunders, agent for Mr Turner, grain -merchant, of Christchurch, said he had received about 3,000 bushels of grain from plaintiff this season. Made arrangements withJMolntyte to pay him 4s 3d for wheat delivered by the 24th or 25th March, but witness did not receive it in time. Of the 3,000 bushels sent, 500 had suffered damage to the extent of 2s 3d a bushel, and 500 suffered to the extent of 2i a bushel, and the remaining 2,000 bushels were of fair quality. The samples of grain put in were valueless. ■—Cross-examined; Mclntyre‘ did not make any binding contract with .witness. The good wheat bought from plaintiff was about Id less than the sample. The price of wheat in, April was about 4s 2d, and of oats IslOd.-* This closed the case for the plaintiff and Mr Purnell contended that there was nothing for him to answer either on the law or the facts of the case. Whatever contract had been mad i was dependent on the weather, and the defendant had fulfilled : what he undertook to do. IJa submitted that there must be a non-suit, —Mr Wilding having replied, his Honpr said that there was an agreement, but one of the conditions was weather permitting. Oh another point, namely, the quality of the stacks, he was clearly of opinion that they were not properly built, as one of the witnesses said that he had only suffered slightly by the weather. The plaintiff would therefore be non-suited with costs. The Court then adjourned.