Feilding R.M. Court.

Feilding Star, Volume IV, Issue 54, 11 October 1883, Page 2

Feilding R.M. Court.

Wednesday Oct. 10th, 1883. (Before H. Ward, Esq.. K.M.) CIVIL CABE3. Halcombe and Sherwill v S. P. Mayhew, a schoolmaster. — Claim for £14 12s lOd on a dishonored promissory i^ote. No appearance of defendant. Judgment was given for Ihe amount and costs. Louisa Grantham v George G-antham. — Claim for £5. No appearance of defendant, who had paid 30s into court, which his wife, the plaintiff, refused to accept as settlement. The claim wus made under a deed of separation, which not being produced, his worship said he could do nothing in the matter, and advised plaintiff to consult the Clerk of the Court. C. Bull v J. "Whisker, junr.— Chum for £10 for trespass and alleged damage to property at Aorangi. Mr Prior for plaintiff, and Hawkins for defendant. Mr Prior said plantiff had taken the action as an example, an i to prevent suck things occurring, rather than to seek any substantial damages. T. Smith, manager of plaintiff's farm, deposed as the trespass having been frequently committed by defendant, although 'te had been repeatedly warned. Cross examined : Some of defendant's cattle had got on plaintiff's ground, and witness «ras ordered to go with defendant and help him to take them home; if the cattle were driven down the river there was nothing to prevent them getting into plaintiff's bush ; the fence had boen broken, bul couldn't swear if defendant or his cattle broke it. Charles Bull, of Aorangi, deposed as to haring several times seen defendant on his ground alone; he h.id warned him, and told him if he win ted anything, witness would send somebody with him ; the river was not a navigable one, and not a highway. Cross-examined : Was not a surveyor, and didn't know much about the highways of the district ; he had three miles of fencing down the river, and would not swear there were no gaps. W. Whisker, jui*r., the defendant, deposed that he was on plaintiff's tramway after some of his father's cattle ; met Smith, who asked him what he was doing; said he was looking after his cattle ; Smith said there was £5 reward offered in the Feilding Stae ; witness said he couldn't help it ; he must have the cattle ; did no damage at all ; there was a mile that was not fenced at all, and it was here that the cattle got in ; no one had warned him later than a year ago not to trespass on the land. Cross-examined : About three months ago plaintiff told him not to go on the land alone. "W. Whisker, sen: 1 ., deposed that he had occupied land adjoining Mr Bull's for 17 or 18 years ; had not b?en ou unfriendly terms; there were patches in raricus places along the feuce, and different people's cattle were always gottmg into the bush. Mr Hawkins admitted that no doubt some amount of trespass had been committed, and thought that full justice would be done by judgment being given for one farthing damages. Mr Prior cited authorities for granting i damages for trespass, although no aciual pecuniary loss had been sustained. ! His Worship held that the trespass had been committed, and was satisfi-d that it had been repeated aft^r warning had been given. Ho gave judgment for £1 and costs 13s. Crichton v. Davies. — Claim £3 :'s 7d. j Mr Prior for plaintiff, and Hawkins tor j defendant. The claim was brought for damages alleged to have been sustained by the purchase of a quantity of cheese which was not of a good and merchantable quality. G. Crichton deposed : He wa3 a storekeeper iv Feilding; Mrs Davies came to his store, and asked him to take some cheese. One was sent as a sample, which was only middling goixl ; told Davit's he could send some more ; nine were 9eut, and these verc not saleable ; sent to tell defendant to take tharn away ; no notice was taken, and as ho could not sell the cheese nor hear anything from defendant about it lor months, he sued him fur the amount ; a sample of the cheese was produced in court, and this was altogether unfit for use. Cross-examinedi Saw the cheese as soon as- bought; was certain the sample produced is one of those sent by defendant ; Mr Thompson had told him hv. had had cheese from defendant which was not good ; will swear he sent to defendant to take the cheese away as soon as he found it was bad. Thomas Skelly, assistant to plaintiff, gave evidence as to the purchase of the cheese, and its unsaleableness. W. G. Haybittle, storekeeper, of Feilding, was examined as to the quality of the cheese produced, but gave no evidence beyond its not being good, and his opinion that it had been in a very hot place and dried two quickly. Cross-examined : It would, be saleable to some people, but a very few ; it was not a marketable cheese. J. E. Daviea, defendant, deposed that the cheese was perfectly sound when delivered ; it was made after the American principle, and was of marketable quality; did not force the cheese on plaintiff, and didn't care whether he took it or not ; about a month after it was delivered heard from "luintiff oompla ning of the quality ; would have taken it back had it been returned at once. W. Beading deposed that he had been in the habit of getting cheese from defendant, which was always of a very good quality. H. Penberthy, storekeeper at Makino, deposed having bought some of the same quality of cheese from defendant as that

sent to plaintiff and at the same time ; it was good, sound, marketable cheese, and he disposed of it without any trouble; should say that the cheese produced had got injured by the fly, which had caused its present appearance. Cross-examined : Could not account for his being good and plaintiff's bad; they were all alike, and there was no picking out. The counsel on both sides having addressed the court at some length, His Worship thought the cheese ought to hare been returned at once after being found to be bad, if it was so ; he had not sufficient proof before him that the cheeae was bad, except the one produced ; he gave the option of a nonsuit or judgment for the one cheese, value 6s sd. Judgment was then given for that amount. Halcombe and Sherwill v. Smart Bros. This case, which occupied nearly two days at the last sitting of the Court, was resumed, the evidence being a continuation of that on the defendant's side. Mr Perkins for plaintiffs and MrEsara for defendants. Kul ph. Smart, one of the defendants, deposed that lie assisted in the harvesting of the wheat, which was perfectly sound at the time; one small stack had fallen over, and got wet, but none of this was sold to plaintiffs. It was spring wheat, and that sold to them was red chaff ; took part in the delivery; Mr Jackson took the delivery every day but one; about 400 bushels of the wheat was delivered to Mr Burcham, some for himself and some for others; he inspected several bags, and put them into the hopper ; he made no complaint of its condition ; saw Mr Jackson, who said the wheat delivered to the plaintiffs had gone bad; asked him if it was all right when delivered, and he said it was ; this was the first complaint witness heard. In his cross-examination witness gave particulars a< to the building of the stacks ; there were some showers of rain after the stacking was done. E. Bright well, Commission Agent, of Wanganui, deposed : He bought 16,000 sacks of wheat in 18S2 ; visited Smart's farm in April of that year; saw about 1,000 bushels in the granary ; it was red chafi"; inspected it in various places thoroughly; it was in good condition; witness offered them 4s cash for it on delivery at Greatford ; that was the ruling price for milling wheat ; his offer wa» refused as not being enough; good wheats differ about 9d a bushel, according to quality ; that season witness bought inferior mi ling wheat at 3s 6d to 3s dd ; there was a market for wheat that season even though it may have been -iiscolored and slightly damaged ; bought some of that kind for mil ing purposes ; gave as high as 3s for chick wheat that season ; last season stored some wheat which at first was perfectly sound, and after remaining in the store about three months the bottoms of the bags had become damp and hard ; the floor of the store was ouly a few inches from the ground ; witness accounts for tiie condition of some of Smart's wheat being discolored in September, 1882, by its getting damp in the store, or being badly stacked there, or remaining in the same position too long ; new wheat will sweat : Smart's granary is a good one to store grain in. Cross-examined : Bought a quantity of wheat for Messrs J. and P. Meek, and sent it to Wellington ; had no complaint from them in 1882, but did in 1883; bought by sample, and some of the vrheat that year turned out afterwards not equal to sample; Messrs M eek dispensed with his services as their buyer; the wheat in Smart's stor? was stored 15 to 20 feet in length by Bto 4 feet deep- ; gave Sanson 4s jukl 8r.'.l 4s 2d for milling wheat that reason: wheat that has become discolored by having got wet and dried again will make good flour, so long as it has not grown ; good wheat will keep good in store two or three years if looked after; if the wheat was stacked in plaintiff's store as described it ought not to go bad in so short a time; wheat slightly damp put with good dry wheat would not hurt it, but it would if very damp. he-examined : Witness explained the modes of judging the quality of wheat by sight and feeling ;. new wheat would not become so discolored from sweating as that described unless it was damp previously ; green hides, or anything damp would tend to injure wheat. By the bench : Have had no communication with or from defendants about this caseDavid Smart deposed as to assisting in harvesting and bagging the wheat, and delivering some to plaintiffs and some to other persons ; all the wheats were alike. By the bench : Witness commenced the bagging at the side of the heap ; could not say which he bagged first; used a shoTel, and took it from the bottom ; never thought but what the wheat was very good ; it might have been in the bin two or three weeks before bagging; it had no peculiar appearance to witness ; it did not look damp ; did not remember taking it up to look at it Fdward Ellerm, farmer at Mount Stewart, deposed as to thrashing all Smart's wheat in 1882 ; the stacks of red chaff were all sound, drj, and in good condition ; there was one stack of spring wheat which had been blown over, and got wot, but it was dry at the time of thrashing ; he was responsible for seeing thut the wheat was all right before goinginto the machine, a 9 damp wheat would clog the amutter ; there was no clogging of the smutter ; can tell at once if this is the case. William Eilerm, brother of former witness, deposed as to assisting at the thrashing of the wheat, which was in a good and sound condition. , James Mudford, senior, x from near Campbelltown, deposed he. had been- a farmer nearly all his life, and. Was about 50 years of age , was at Smart's place in

April, 1882 ; saw a bulk of red wheat in the granary; looked at it, and could see nothing the matter with it ; it was as bright and nice looking as any he had seen. Geo. Mudford,. junior,' gave similar testimony as to the, good and sound appearance of the wheat in defendants' i granary. ■ J.T. Smart deposed he took the wheat that he sent to plaintiffs out of the bin ; sold 199 bushels to Mr Burcham; he oniptied the first bag into the hopper, and and two bags of the second days' delivery; ■Burcham opened several bags in subsequent deliveries, and never, made any " ' ' ■ complaint ; was much surprised to hear him say when giving his evidence that he had complained of the wheat beinz couldn't, account for this statement in anyway whatever; when defendant took the last lot; he said he would gi ve witness a cheque next day; couldn't account .'''for the wheat being bad unless it trot damp in plaintiff's store ; all the wheat sent , them was quite equal to the ■ample. Mr Egara addressed the court at some length; and said: the ease had occupied more time than its importance demanded; the wheat had been sold by sample, and ;the /plaint "was "that the bulk wa« not equal to sample, but it was necessary to prove that this was the case at the time of delivery, on which point he cited several authorities, and instanced several precedents to establish hi« ease. What the court had to consider was the condition of the wheat at the time of its delivery, and he contended that the evidence proved that it was then equal to the sample, and there was nothing to show that there was any exception to its all being at that time of a bright, sound, milling quality. It was impossible for the -court, to come to any other conclusion on the evidence. Whether, the sample was good or bad, it had. not been produced, which might have been advisedly or unadvisedly . He contended that the bulk of the evidence was greatly- in favor of the defendants, and that the plaintiffs should be nonsuited. Mr Perkins then s addressed the court. He contended that if no evidence on the plaintiff's side had been produced atjall, the evidence on the side of the defendants was 'quito sufficient to prove the case ; the evidence given by Mr Hammond -with reference to his own wheat last season showed thmt although vrheab which had become wet might look «llnghi at the time of. thrashing, it was possible for it to afterwards become bad; ample proof bad been given that no iajury could have come to the wheat from the state of plaintiffs' store, and that it must have been wet at the time of storing ; the only solution of the case, according to the evidence, wss that the 'stacks had been ' improperly built, and the wheat had got injured therein ; against such evidence as that produced on the plaintiff 'B side, there was only that of the defendant's themselves that the bulk was equal to the sample ; the whole case lay in a nutshell; plaintiffs had paid 4s 4d per bushel, ' whereas it was only worth 2s 8d or 2s lOd, and he asked the court to give a judgment for the plaintiff's for the difference in the amount. His Worship said the ease was a. very important one to all parties ; he had been Tery pleased with -the very able and gentlemanly manner in which all the pemons concerned had conducted themselves throughout the case; there had been no irritation or unpleasantness of any kind shown by any one, and this had materially assisted him ; he should , however reserve judgment, which would probably be a written one, till the next sitting of the, court. The court then adjourned.