Resident Magistrate's Court.

Clutha Leader, Issue 210, 19 July 1878, Page 5

Resident Magistrate's Court.

* _ BALCLUTHA.

Wednesday, July 3, 1878. J (Before E. H. Carew, Esq. , R. M. ) Rattray v. Rattray. — Adjourned for a week. Mr Henderson for complainant, and Mr Taylor for defendant. Canning v. John Brown. — Assault. Defendant pleaded guilty, and was fined 40s, with Cs 6d costs of Court ; in default three days' imprisonment in H.M. Gaol, Dunedin. W. T. Smith v. A. Carson. — Claim, Ll4 9s Gd. Mr Henderson for plaintiff. Judgment by confession' for amount claimed and costs. Legg v. Jackson. — Claim, L5, for a set • of iron 'arrows, amended by his Worship to " iron harrows." Judgment by def ault for amount claimed and costs. Smith v. Clarke.— Claim, Ll2 18s. ■Mr Reid for plaintiff, and Mr Henderson for defendant, who put in a set-off of L 2 lis Id, and paid into Court L9 8s Gd. Plaintiff disputed 22s of the set-off. This . case was merely one of account, and lasted : for some time, two Witnesses being examined on each side. Judgment was reserved. Wm. Munro v. Royse, Stead, & Co. — : Claim, L6B 10s. Mr Reid for plaintiff, : and Mr Howorth for defendants, who put ' in a plea of " not indebted." William Munro, the plaintiff, said : On '. Bth April I saw White at his cottage, and | offered to sell my oats at 3s 2d, but would : not sell the oats without the wheat. He - said he had a telegram from Royse, Stead*, . and Co. not to buy wheat. He said he ; would go and see the crops, and would give me whatever bags T required. He 1 came on 12fch April ancl saw a sample, .and 1 said he would give me 3s Id for oats and ■ 4s for wheat. I accepted the offer, and * he wanted them delivered at once, and ] said he would write to Royse for an - advance to meet the bill. I drove 198 j bags of oats and 28 bags were at* the J station to be forwarded by rail to Royse, * Stead, and Co. , in pursuance of agreement < made with Whyte. I told the railway ] porter to send them to Royse, Stead, and *■ Co. I sold them to Whyte as their man i of business. The only instructions Whyte i gave me was to deliver them at the Rail- 1 way Station. I think Wiiyte said that 1 night in the cottage that he was buying i for Royse, Stead, and Co., bufc I would *■ not swear to it. The only reason I scut i them to Royse, Stead, and Co. was be- - cause of what Whyte said in the cottage, 1 and I would not have sold them to Whyte J himself. I would have sent thorn to - Wright, Stephenson, and Co. if Whyte ] had said they were to go, thero. I sent 1 them to Royse, Stead, and Co. because < Whyte said on Sth April at.his own house that he had a telegram froni Royse, Stead, • and Co. to buy no more wheat, and be- i cause I understood that 1 sold the grain to thorn through Whyte. I understood ■ that Whyte was buying for them because * of the telegram, and it was rumoured ' through the district that he was buying for them. I wouldn't sell to Whyte be- '. cause it was rumoured he was not safe, * and I believed it so fo,r as that I had no money transactions with him before. Whyte supplied me with Royse, Stead, and Co.'s bags to put my grain in. I was : not to pay for the bags. Mr Royse sent me an account for the hags. [Letter claiming payment put in and read.] These bags jWere the same as I afterwards sent the grain in to Royse, Stead, and Co. I have been paid LIOO on account of the grain. I didn't weigh the grain, as there was no one there to weigh. I trusted to Royse, Stead, and Co. to give me correct weight. LIOO was paid into the Bank to credit of a bill. Whyte never paid me a j penny. I asked Whyte for the LIOO, and I he said lie would write to them to forward the money to retire the bill for Ll3O. 1 got no more money. I applied personally in beginning of June to the manager for Royse, Stead, and Co. for payment. I don't know his name,, but I saw him in the office, and he gave the account for the bags. He did not pay me, and I did not see Mr Royse. John Campbell Morris, trustee in the estate of James Whyte, member of the firm of Whyte Bros. : I examined the debtor on oath, and now produce his evidence. Mr Howorth objected to the written evidence in the book produced being put in. Mr Reid simply wished to have it marked as being sworn to, and to put in subsequently if necessary, as Mr Morris wished to return to Dunedin. William Dallas, farmer, Te Houka, said : I know Mr Royse and Mr Whyte. This last grain season 1 have had dealings with Mr Royse through Mr Whyte, but have had dealings with both. In April Whyte asked me if I wanted, bags, and I said yes. He said he had some secondhand bags from Royse to supply settlers with, and I could have them. I said unless they were good second-hand bags I wouldn't like them, as they were troublesome.- He said the price would be lOd, and I asked about them again. He said if Royse got the stuff .they would be allowed for. I sold Whyte 246 bags oats, and he said he was buying for Royse. I would not have given him the -stuff on his own account. He said Royse had a splendid arrangement ; that he had gone, into town himself and pressed this arrangement. -_.-■' /.':.- --'..;'■' ;

Mr Howorth objected ; this was no evidence in the present case.

Witness : Whyte would give me an order on Royse, and my receipt for the order would go in through the Bank to Royse. The Bank held the receipt until the order was paid. I got an order for LIOO, and sent in the receipt and order together. The receipt produced is my receipt. Mr Gow, Whyte's clerk, wrote, out the receipt. The money was lodged to my credit at the Bank. Mr Gow said when the weights came out from town I would get another order, and get the balance of my money in the same way. I went to town and saw Royse, and at first he said ho had nothing to do with mo as Whyte Bros, had bought my oats. I said I was aware. that Whyto Bros, had bought thorn, but I sold them to Whyte on Royse's account. He said if I chose to deal with people in that sort of way he could not help it. I said I understood Whyte was his agent, and sold or gave out Royso's bags, and I was only to be paid by orders on Royse, and this led me to believe Whyte was his agent. He said he only made this arrangement for protection of the settlers. He asked me to come back again, and he would think over it. I went back again and ho told me that he would settle with me, but that he was giving me more than ho was entitled to. He then paid me the amount due. He spoke about dealing with him directly. Royse paid me L4B odd. The original value of the oats I do not remember. I paid Whyte no money, and he did not charge me. I sold the oats to Whyte for 3s Id, and there was to be 2\ discount for cash. When I settled up with Royse he paid me 3s only, but I considered the Id equal to the 2£ discount, and I did not press for tho penny. Had Royso insisted on the discount, I would have insisted on the penny. I took particular care that the first truck-load was consigned to Royse. It was in the month of June. By Mr Howorth : I first saw Whyte about the sale in May I think. I had reason to doubt Whyte's solvency then, and that is why I would not sell to him. Whyte told me he was buying for Royse. James Wilson, farmer : I had transactions during last grain season with Whyte and Royse through each other. In Balclutha Whyte told me he was buying for Royse, and asked me to sell my crop. The price was 3s for oats. I met him again same day, and I offered to take 3s Id for 100 bags. He said make it 140 bags and he would give me 3s Id. If I brought the grain down Whyte would give me an order on Royse for part of the money — bags to be 9d. I agreed to this. I drove down 140 bags oats, and his man Bowers took delivery of them, and they were sent to Royse. Whyte told me that Royse was to weigh them in Dunedin, that they would not be weighed here. 1 had every confidence in Royse. I applied to Whyte f or'an order for money, and got an' order for LSO on Royse. The receipt produced beginning " Received from Royse, Stead, and C 0.," is the receipt I gave for the order. That money came all right, but I could not get the remainder, and went to Royse in Dunedin to see if I could get squared up with hfm. I saw Royse, and he said he had no business with me ; that Whyte bought from me, aud he bought from Whyte. He said to his manager he had better j>ay me and pocket the loss. He paid me at the rate of 3s a bushel only, and oily 7d for bags. He also deducted 2-^*- per cent for cash. That was not in the agreement with Whyte, but I knew Royse charged it, and that is why I stuck out for the penny. It is usual to deduct 2|- per cent for cash. I have known Whyte for three or four years. It was about the end of April that I sold to him. Whyte told me pointedly he was buying for Royse, and did not ask to buyon his responsibility. By Mr Howorth : Royse said he agreed to "buy oats from Wiiyte at 3s, and I settled with him for that. Mr Munro was then recalled, and crossexamined by Mr Howorth : I agreed to 3ell my oats at 3s Id and wheat at 4s. This was the first transaction I had had with Whyte through selling grain. We had had other transactions before that — some money transactions. It was that ; bill for Ll3O. I received L 125, and gave an acceptance for Ll3O, and I gave Whyte 1.5 besides. I executed a document in his favour, by way of security over the grain. The document produced is the security, dated 11th January >, 1878, over my growing crop. I had given him the acceptance before giving him the lien over the crop. I would not have sold to Whyte unless he made the bill good. The bill was not due when I sold the grain. I had more grain than the amount of the bill, and I would not have trusted him for the difference — about L 40 — although I have given him power by the hen to sell my crop at any time. I had more money from Whyte — L 34 on the ltth December, and the bill then due was renewed for three months. Both bills were to be met out of the grain. I don't think I would have trusted Whyte L5. After my grain was put into the trucks it was sent to Royse, Stead, and Co. by direction of Mr Gow. I did not write to Royse. All the grain I sold to Whyte did not go to Royse. Some of it was sent by Whyte to Mackenzie, Thomson, and Co. , in Balclutha. He did not tell me he was going to send them any. I delivered all the grain into the trucks, but had no control over it afterwards. Gow came and asked to have some of it sent from the station as we were unloading to Mackenzie, Thomson, & Co. . but the roads were too bad, and some was promised for next day — some of that sold to Wiiyte. I marked down eveiy night the number of bags I delivered at the station. I marked down in another book wliat Mackenzie and Thomson got, but I did not think I would get paid for it. Mackenzie, Thomson, and Co. would not pay me, as I did not sell to them, and Royse would not pay me for what he did not get. I think what Mackenzie and Thomson got was delivered on the 20th, and was sent ha on a dray direct to them and did not go direct to the station. The '. entries in the book produced were entered at once, and from slips of paper, not daily. They were not copied for purposes of this case. In the original book the bags to Mackenzie. and Thomson are on the same . page. I would not sell to "Whyte on credit. Iwent to see Royse in end of May or beginning of June. I ha.d received a notice

-"from Royse . about the.bags before I went to town. I had- not paid Whyte for the i bags; I got from 300 t0. '350 bags from

Whyte. There was a young clerk prestn first time I saw Royse's manager. Whyte was in the second time I called, and told me he paid the banker LIOO one time and over L7O another. I said I had word from Mr Ritchie that only LIOO had been paid to my credit. That was all that passed. I think he said that he bought the oats himself and. not for Royse. By Mr Reid: I wanted L 125, and I first asked Wright, Stephenson, and Co. for it, and Mr Stephenson said ho would advance it if I arranged wit h Whyte. I went to Whyto, and he told me he would get tho money for me, ancl asked his brother to make out a bill for Ll3O, which I signed. He paid the L 125 for me. He was not then acting for Royso. I had not then agreed to soil my grain to Whyte. At Hiis stage the Court was 'adjourned till next day. Thursday, July 4, IS7B. James Whyto, examined by Mr Roid : I kno-.v plaintiff. He called upon me aboui tho Sth of *.-», pril last about bags to hold his oats. I had bags I got from Royse, Stead, and 00. to sell on their behalf on I commission. [Letter of instructions produced, and read.] I acted on those in-< structions, and received 1£ per cent commission on the sales. When Munro called < upon me he told me he was to thresh his. oats and wheat, and named the day. l( told him I would go and see the grain when he was threshing. I then had advices from Royse, Stead, and Co. not to purchase any more wheat. I did not mention this to Monro. I agreed to give him bags for his grain. There was no mention of Royse, Stead, and Co. at all. I went to see the grain on tho 12th of April, ancl agreed to give 3s Id- for the oats, and 4s ■ for the wheat. 1 had then no instructions from Royse, Stead, and Co. to purchase feed oats. I was no more tied to them than anyone else. Monro's oats were good mixed oats. I knew Royso wonld only give 3s for oats. I bought them on my own account. I only considered Royse my agent to purchase from me. The greater part of Monro's oats went to Royse. M'Kenzie, Thomson, and Co. got some. I filed my schedule' in May — a month after I got Monro's grain. The oats got "by Mackenzie, Thomson, and Co. were paid in cash on the 16th of April. I know people were afraid of my credit in the middle of April. [Several letters were here put in, and witness was examined with reference to transactions with R. Paterson and others.] I did not tell people I wa3 buying oats for Royse. My profit was the 2-|- per cent commission or discount from the seller. I always bought to pay cash, and got 2£ off. This is always understood in the trade. I showed to sellers the instructions from Royse. I got the 2£ commission for the trouble I took in making the sale. I took Dallas and others into my office and showed them the terms of my arrangement with Royse. It is the custom hi the trade to get 2>\ off for cash and for the trouble here. I told sellers that Royse took all my consignments, and that they would get cash either from Royse or myself. I have received instructions from time to time to go on buying. [A large number of letters containing such instructions were read.] I showed these letters to sellers. Maclean Bros, had the same arrangement with Royse last year as I had this year. I told sellers that 2f would be taken off. I told them I acted as agent for them. I was not agent for Royse. I do not remember telling Messrs Bishop, Fleming,. Ritchie, Scrimgeour, or Gow that I was agent for Royse. I deny having told Mr Gow that I was Royse's agent. [Witness was here handed his books, and examined regarding numerous entries and transactions.] I have sometimes paid a higher price that I was authorised to give by Royse. Iv these cases I lost the commission. I always fixed the price, excepting in Watt's case, where Royse 'fixed the price. I did nofc purchase for Royse all the oats I forwarded to him. I purchased on my own account. [A letter to Royse, Stead, and Co. of 13th December was read, in which occurred the words — ' ** You know we never purchase on our own account."] The letter was written by my brother before instructions were receivedfrom Royse. I sent 400 or 500 bags to Wright, Stephenson, and Co. in February, and on 3rd April 40 bags oats and ryegrass. Since I commenced to deal with Royse, Stead, I and Co. I have confined my business verj>S much to them. I did on some occasions ! buy expressly for Royse. I did so in the ; case of Hardy's and Paterson's, on the coast. I bought Dallas' oats, to be sent to Royse, also Wilson's. I told them the oats were to be consigned to Royse, ancl also showed them my arrangements with Royse. I have not entered the oats sent to Royse in the account sales, but the oats sent to Wright, Stephenson, and others are so entered.

By Mr Howorth : These invoices produced are the same I sent to Royse at the time I sent them grain. When the grain was weighed in Dunedin I got a credit note. I remember receiving a credit note relating to Monro's wheat. [Note identified. — Shewn scroll-book containing entry of Monro's wheat and oats.] I always charged 5 per cent commission on sales of wheat. [Shewn lien over Monro's grain.] At the plaintiffs request I lifted a bill of Wright, Stephenson, and Co.'s, and advanced L 34, and took the lien for this and LlO worth of bags. The oats sent to Mackenzie, Thomson, and Co. were so sent by my instructions, and I got cash' for them. The price was 3s Id. I was allowed to overdraw at the Colonial Bank to* the extent of between L6OO and L7OO. Between the 12th April and 13th May I was in perfectly good credit. I placed LIOO to Monro's credit at the Colonial Bank. I had sacks from Guthrie and Larnach, jSimmo and Blair, and John Macdonald. I also had sacks from Royse, which I sold to the settlers, sometimes on credit and sometimes for casb. My instructions from my banker were to pay all money into the Bank and pay by cheque. The money I got for the bags sent from Royse I placed to my own account in the Bank. The terms of my instructions from Royse as to their bags were' to sell them, and send a memo, of the sale to Royse, who would invoice them direct from Dunedin. I sold them, to the. settlers myself, and. got the money. Any. money -due for bags by , the settlers belongs to Royse. I received commission on all transactions from the sellers. The relationship between .me and . Royse was * that of seller and purchaser. : I never got commissioiijin aiiy; transaction /from :-._ Royse^

Sometimes Royse might settle with the seller. I sent Watt to Royse to get payment. Carmichael also went to him and got payment. When Royse settled with fche seller he deducted my commission and gave me credit for it. I was at liberty to sell tho grain I bought to anyone where I cousidered there was a market. By Mr Reid : I did not buy Hunter and Houliston' s oats expressly for Royse. These aro entered ' in my scroll book as j being bought for Royse. I had an overdraft to between ~i.\A)o and L7OO. It was •»quared off suddenly, and the credit stopped. T bought oats from Carmichael, and he got paid from Royse. The price was 3s. Wilson and 1-Tan-oway asked me to scad .o-i's at th-.. beginning of tha season, bnt 1 did nob s*.-.nd them any. In the :^rain trado cash means cash on delivery. John Gow, !ai;e clerk .to Mv Whyte ; I know Whyfa did business with Royse. I treated the business as commission business. I kept the books from the lst February Whyto professed to bo a commission agent, and moat of his business was on commission. [The books were handed to witness, who explained many entries.) An entry on 21st March made by me under Whyte's instructions shows Royse, "Stead, and Co. to be the purchasers from Peter Hunter of 104 bags oats. I mado the entry, as I considered Whyte to be Royso, ;j Stead, and Co.'s agent. Whyte gave me instructions so to keep the books. Whyte on many occasions told me he was Royse'3 agent. I remember selling oats to Mackenzie, Thomson, and Co. The oats were Munro's, and the transaction was in the ordinary way of business. I told Whyte of tho transaction before tho oats were delivered. Whyte objected to the sale, as he said , they were Royse, Stead, and Co.'s oats. The oosa + s were delivered.

By Mr Howorth : I believed all along Whyte was acting as agent for Royse. The further hearing of the case was adjourned until. Wednesday next.