TAURANGA R.M. COURT.

Bay of Plenty Times, Volume I, Issue 103, 27 August 1873, Page 3

TAURANGA R.M. COURT.

Fail) at, August 22, 1873, (Before Mayors Roberts and Mair, R.M.s, and EMi Edgcumbe, Esq., J. 8.) ARSONS v. I). BELIAKS. or^L a ™V? 5 Q^ 8 f d 1 - T ° CaSh Paid over nnr, *ract p ice,,w7ls9d; to nine weeks’ breach of contract as per agreement, at £5 per week, £ls—£s2 Is yd. ®' SUng ’ ° f ' Suo!ll “ , “ 3 > “PP'"" l f »' Noah Parsons, settler, being sworn, deposed : I claim the sum of £7s la 9d for lauding certain posts and rails which the defendant agreed to "J‘ Tet , at Mathieson’s land, and failed so to do. (ihe witness here enumerated the posts and rails so landed.) I entered into an agreement with defendant for him to supply me, previous to the Ist April, 1873, with 1,600 posts and 3,000 rails, of good sound timber, to bo delivered at the landing place nearest the land purchased by mo, and known as Mathieson’s land. The price of the posts was to be £3 per hundred, and the rails 15s, The defendant agreed to a fine of £5 per week if not delivered in contract time. I received 96-i posts only, leaving a balance of 53G to be delivered ™ e ‘, 1 *? ave paid defe »dant £136 13s 3d. I claim for nine penalty up to the time the summons was issued. _ &£r Eussling ; I remember meeting Captain Sellars on the Tauranga wharf about the end of March last. VV T e had a conversation about that tune in reference to the delivery of these posts and rails. I have frequently asked Captain Sellars to deliver the balance. I do not remember defendant refusing to deliver any more posts. The boat with timber came to the nearest landing place to my property. By the Court; 1 claim no damages for nondelivery of rails, but only sue upon breach of contract as regards the posts. I hare paid defendant £136 X3s 3d altogether. I condemned 81 posts. Louis Bidois, settler, said : X received a cargo of posts and rails on account of the plaintilf. The posts were not good. Jonathan Brown, settler, deposed : I remember witnessing the agreement between plaintiff and defendant. I saw some posts condemned by plaintiff. J By Mr Kissling ; I cannot state where the condemned posts came from* Plaintiff told me Captain Sellars had supplied them. . ® rt, y, builder, being sworn, said : X received a cargo of posts on plaintiff’s behalf. The posts were all puriri—-no kauri amongst them. Some were unsound. I do not remember the date. This closed the ease for the plaintiff, Mr Kissling, for the defence, called James Stevens, master mariner, who said: I remember delivering at Te Puna some posts and rails on account of Captain Sellars. X went as far as the vessel would go up the river. Mr Parsons took delivery. They were good sound posts and rails. Mr Parsons said at the time to me, '** These; are very good posts, and will just save Sellars’s bacon.” He also said' “ 1 want 350 more.” I brought the remainder, which I understood to be all he wanted j and plaintiff told me to deliver them to Mr Grey, which I did at bis request. I remember plaintiff saying Captain Sellars did not wish him to take any bad posts. I remember a I conversation with Captain Sellars and Mr Parsons in March last. I heard plaintiff say, “ Put th© agreement on one side as long as you bring me the posts.” I was depatched immediately after this for more posts and rails. I heard no time fixed as to when they were to be delivered. By plaintiff: I think I delivered 375 posts and rails to you at Te Puna. 1 was not aware that you were about summoning Captain Sellars at that time. Daniel Sellars, defendant, deposed: I ara master of the s.s. Southern Cross. X remember i entering into an agreement with plaintiff in October, 18/2, for delivering 3,000 posts and 6.000 rails, for a three-rail fence. At the request of Mr Parsons the first agreement was nullified, and a fresh one drawn out. By second agreement I vraß_ to deliver 1,500 posts and 3.000 rails. I believe plaintiff is short of some of the posts, but I delivered until he told me he did not want any more. I know that ho had more than he wanted, because he was selling to other people. I stopped delivering when he told me to do so. The reason why X did not deliver the remainder was that Mr Parsons left the district, and there was no one to take delivery. I had a bad load of posts arrive here during his absence, and was compelled to sell them to other people. I am quite sure Mr Parsons told me he did not want any more posts. After plaintiff returned from Napier he asked [me when X was going to deliver balance of posts. I told him I would supply him with no more, inasmuch that he had broken his agreement! Plaintiff then said he would put aside agreement altogether if I would supply him with posts, and I agreeing to do so, started two cutters off at once. It came on bad easterly weather, and thd vessels were detained for a considerable time. At that conversation the second agreement was entirely done away with, and I agreed to deliver what quantity he wanted. I continued delivering same until plaintiff stopped me. My wish was for plaintiff not to take any bad posts, as I had to pay for the posts by his receipts. The usual custom is to take delivery of all cargo alongside the ship’s side, excepting in cases of special agreement to do otherwise. By plaintiff; 1 supplied you with 2,370 posts previous to your leaving for Napier. The last load was delivered on the 27th May to Mr Grey, according to your instructions, Vou are credited in my account with 890, and you are charged with 3,734. I received from you altogether £l3O 17s. This concluded defendant's case. Mr Kissling then briefly addressed tbe Bench. Referring to the item for landing the learned counsel contended that delivery had been accepted by the plaintiff, who had employed men to carry the timber from the vessel’s side, and therefore he

CO r Id f K laim 1 nothin B °« that account, f 4 a i Urther . 8how “ evidence that the vessel had been taken up the river !lft f ur U 8 possible and it was even •• on the hard ” at the time delivery was taken. As regards the weekly penalty, he (Mr Kissling) submitted that the evidence adduced wont to show that tbe defendant had supplied the timber until he was stayed from so doing by the plaintiff himself. The learned counsel then quoted from “Addison on Contracts, showing that an unsealed written contract could at any time be altered by subsequent verbal agreement between tbe parties thereto An agreement by word of month had been clearly tj \ and he {Mr Kissline) thorn fore submitted that, the plaintiff failed to establish his claim, the defendant was entitled to a verdict.

After a short consultation, the Bench gave judgment for the defendant, without professional costs*

Mr Parsons gave notice of appeal Tho Court then adjourned.

Monday, August 35. (Before Major Roberts, R.M.) DEUNKENNEBS, Joseph Turnbull was fined 10s sod costs for this offence.

Tuesday, August 26. (Before Major Roberts, R.M.) m drunkenness . Joseph Turnbull was again brought up on this charge, and fined 20s and costs, or in default seven days’ imprisonment. The same prisoner was also charged with vagrancy under section 2, subsection 1 of the Act. borgeant Naden did not, however, press the latter charge. * John McOully, his second offence, was mulcted m a penalty of Ss and costs, or the usual alternative.