RESIDENT MAGISTRATES COURT.

Evening Star, Issue 3109, 5 February 1873, Page 2

RESIDENT MAGISTRATES COURT.

Tins Day. (Before A. C. Strode, Esq., R.M.) CIVIL CASES. Clarke v. Barron.— On the app’ication of Mr Harris this case was adjourned until Friday next. Andrew v. Duxbury.—This was an application for a rehearing, on the grounds that the case was decided without defendant’s knowledge. Mr Harris appeared for plaintiff, and Mr Smith for defendant. Counsel for defendant applied for an adjournment, ontbe grounds that his client was not prepared to go on with the case. Defendant was then called, and stated, that this action was first brought on in December last, and adjourned until the 3rd of January. On that day he was told by plaintiff that the case had been withdrawn, and he' was rather surprised to find that it had only been postponed, and | was heard on the 17th of J.muaiy. At 20 I minutes to 10 o’clock, on the morning of that day, be first heard the case had not been withdrawn. He was therefore unable to be present at the hearing of the case. A gauger, named Atkinson, said he was in the Court on the 3rd January as a witness in the case, and heard plaintiff say to defendant, outside the Court House, that the case was settled. He was under the impression that the case had been settled, until the Itioh January, when he received a summons to attend on the following day. John M ‘Cluskey corroborated the evidence of last witness. Counsel for defendant, therefore, applied for a rehearing, and postponement to prepare his case. His Worship, in answer to counsel, said, the postponement on the 3rd January was regularly made. Mr Harris said, the reason why this adjournment was made was to enable the defendant to settle the amount of damages by arbitration. Mr Smyth had agreed to act in the matter; but, subsequently, declined to have anything to do with it. wo further action was taken by defendant in order to bring about a settlement, and the case was allowed, therefore, to proceed on the 17th January.—Plaintiff stated that on the 3rd January he simply said to the witnesses that they won d not be wanted that day as they were in the way of settling the case. Subsequently on finding that Mr Smyth had backed out of the affair, he told defendant that the case would be proceeded with —Cross-examined : He thought he did say to the witnesses that the case was settled. His Worship thought that, since the person who informed defendant of the bearing at 9.40 o’clock on the morning of Jan. 17, afterwards gave his evidence in the case, Defendant might have done so, and as no reason had been given why he did not appear, he therefore would refuse the application. Newman and Co. v. The Morningtou Road Board —Adjourned until the 14th inst. Allan v. Dunlop.— Adjourned by consent until Friday next. Mill and Co. v. Boyle.—ln this case plaintiffs sought to recover the sum of LB4 3a 7d, balance of account of a quantity of Circular Head potatoes, sold by plaintiffs to defendant and received by him. Defendant pleaded not indebted, and brougnt a crossaction for alleged breach of contract by plaintiffs, whereby he sustained loss of business and damage to character. It was stated that the 240 bags of potatoes delivered to defendant were not Circular Head potatoes, but simply contained a few Circular Head potatoes, the remainder being inferior, rotten, and mixed with dirt. Defendant had sold a quantity of these without being awareof their real condition, and therefore sustained loss, damage, and injury, wherefore he sought to recover damages to the amount of LI 00. Mr Haggitt appeared for plaintiffs, and Mr Barton for defendant. W. K. Mill, salesman to plaintiffs, said be remembered a cargo of potatoes, consigned to Mill and Co , from Circular Heads. On the 4th of October, or two days after the vessel with the potatoes arrived, he met defendant in Jetty street. Defendant asked Him the price of the pq‘atoes, and bereplie l, ‘Mf you will take 20 tons they will be L 5 per Ion.” They then went down to the vessel to examine the potatoes. He had not at this timo seen the potatoes himself. Defendant lifted some of them, and cut them.- The hatches were open at the time, and the potatoes were loose in the hold. Defendant then said he woukl take the 20 tons. He then, mentioned tbe terms of payment, and defendant said he would give JL7q cash on delivery, and the balance in a fortnight. Tiiey then left the ship, and while on the way way to the Universal Bond he agreed to put the potatoes into gunny bags at the rate of 3s Gd per dozen ; and if he had not enough of these, tq pub them jnto other bags, charging for them market price. At parting, defen: dant said be would see to the shipping of the potatoes, and take tin ra away at once. The same afternoon he left town for Timaru, and did not return to the ofiioe until the 14th of uetober. After this, he saw defendant, and defendant said ho saw his brother and had arranged to take them away the day following. Witness then mentioned the question of money, and defendant said he had arranged with Mill and Co. that they should accept his bill on the Auckland consignee. Some time after Boyle had taken delivery of the potatoes he requested witness to look at them in his store ; he did so, and found them loose in a shed in Mr Boyles’ yard. Defendant then said that the potatoes had been picked over, and asked if an allowance would be made for the bad ones that had been picked out. He asked him the weight of the bad ones, and sometime afterwards defendant sent it down to the office. • A credit note [produced] for the amount—viz , 14. cwt., was made out, and he took it up to him aud asked for » cheque, defendant replied that he did not intend paying until he had heard from his Wellington ageut. This was the last he had beard from the defendant.— Cross-examined : The entire, cargo amounted to about 186 tons.

A number of bags of potatoes had been re* moved from the hold before defendant saw them. From these bags some of tho s e cut by defendant were taken. Mr Boyle said he would rather wait delivery until they got a little further into the hold. He agreed with Boyle that tie potatoes should be picked in the usual way. He did not reduce the price to i 3 per ton in order to settle the matter. He sold a quantity of these potatoes to one Thomas, in Wellington, There was some misunderstanding about them, but he could not say what it was A portion of the same cargo of potatoes was sold to Mr M eenan at a price, he thought, under L 3 per ton. He was not aware that Meenan refused to take delivery. The sale was different, from that of Boyle. The dispute with Meenan arose, not from quality, but the quantit} r of potatoes There were a considerable portion of them bad. The case was then adjourned until two o’clock to-morrow, to enab'e counsel for defendant to appear in another Court.