MAGISTRATE'S COURT.

Gisborne Times, Volume XXV, Issue 1988, 25 January 1907, Page 2

MAGISTRATE'S COURT.

UNDEFENDED CASES. (Before Mr Barton, S.M.) His Worship gave judgment ill tho following undefended eases:—Miller and Craig v. Mrs Mahon, £2 12s and 6s costs; Rossbotham and Satiric v. J Prentice, .adjourned; Himlrick Moidorn (Mr Blair) v. Tims. King. IC9 5s (id ami costs; Clayton and Nishott (M Blair) v. AVm. Poulgraiii, £2 7s and costs; Glias. Rosie v. John F. A. Hansen, £3 15s and costs. CLAIM FOR A STACK OF HAY. Matthew Hall, farmer, Matawliero, sued Harold Rougher, Gisborne, for ;C5, the value of a stack of hay sold to defendant. Mr T. Alston Coleman represented plaintiff, and Mr Stock appeared on behalf of the defendant.

Matthew Hall, the plaintiff, said that some weeks ago fie met the defendant in the street, and they had a conversation about some hay. Defendant asked him if ho had any hay for sale. AVitness said, “A’es.” Defendant said. “How much?” AVitness said, “I don’t know. Como and look at it. There might he two tons, perhaps three—come and look at it.” Defendant asked, “What do you want for it,” and plaintiff replied, “ I want £5 for the stack as it stands, or £2 10s per ton weighed on tho weighing machine.” He told defendant that ho would prefer to sell it by the ton, because then the buyer would have tho privilege of rejecting anything that was not good. About a week or two later the defendant brought out a man named Nichols with him to see tho stack. Plaintiff showed it to.them, and said, “That’s what I want to sell.” .Ho left them, and they came to his shop afterwards. Defendant told him ho would take it. About a fortnight after this he met defendant on tho road, and asked him if he intended to take the hay away or not, as per agreement. He said, “Yes; I want it. But the carter wants too much to cart it.” Plaintiff’s reply was. “That’s not my trouble. I have nothing to do with that. If you don’t take it away, my new hay is cut, and I shall have to make other arrangements about the stack.” Defendant said, “I’ll_ take it away as soon as I can.” A" day or two later two men came to my place with a dray, and said they had come to cart the haystack away for Mr Rougher. Plaintiff said, “All right ; come with mo to the stack.” lie got them the tools to take down the stack. They took one load away, and ator dinner they'returned for another. Defondant came with them, went to the stack, and afterwards came into his (plaintiff’s) shop. Defendant said there was not so much hay as what ho thought, and that ho (plaintiff) wanted too much money for it. Plaintiff replied, “You saw tlio stack before you took it away. AVhat made you take it if you were, dissatisfied.” Defendant replied, AVell, I think vou want too much ; I will only give you £3.” He (plaintiff) replied, “I won't take it. If vou consider that there has been any deception, you saw what you were buying. AVhat made you take it. You seem dissatisfied with the stack. Give me £4, and I will allow you £l. But I want the money now, or 1 shall stick to the original agreement.” There was no ono present to hear the conversation. Defendant took the whole stack away except a bit at tbe bottom which v. as not worth carting. About a week jater ho (plaintiff) went to defendant and asked him to settle with -him. Defendant said, “I’ll only give you £3. Plaintiff refused to accept it. Afterwards ho wrote defendant demanding £5 within a week. His AVorship: Did defendant say why ho offered only £3. Plaintiff: He said it was only worth £3. I said, “It is too late to make that bargain now. A r ou should have made it before. By Mr Stock: There were two loads of hay. One .load was 25cwt. and the other 30cwt., according to the carter. The average price was £3 10s a ton. He had never said to defendant that he could guarantee there would be four loads or more in the stack. It was not £1 a load that defendant offered for the hay. His Worship (to plaintiff) : You saw the hay loaded. AVhat do- you say it was worth per load. Plaintiff: I say it was worth from £2 10s to £3 per load. By Mr. Coleman: He should say that the hay was worth £5 in the stack.

Charles Nichols, stablekeeper, Gisborne, said that lie and defendant had agreed to take the hay between them. AVhen they saw the stack they were satisfied with it. AVitness thought it was worth £4 or £5. By Mr Stock: If ho had known that there were only two loads in the stack he should not have colfsklered it worth £5. His Worship: Did you think the stack contained five loads? AVitness: About that. By Mr Stock: He did not hear plaintiff say if there were not five loads in the stack lie would make some allowance. He had gone halves with Rougher in the hay. They bargained for the stack; they did not buy it by tile load. This was plaintiff’s ease. Defendant was called, and stated that he bought the hay stack, believing that it contained five loads. Plaintiff told him that if it did not contain five loads lie would make him an allowance. There were only two loads in the stack, and it was not worth more than £1 per load. Ho arranged with Mr Ready to take what lie wanted of the hay at £1 per load. In the loads he (defendant) had from plaintiff there was only about loewt. each. Tho carter had charged 10s per load for carting. He had never agreed to give plaintiff £5 for tho stack. Had offered £3, and afterwards £3 10s. By Mr Coleman: The hay was not weighed. AA’lien he first saw the stack he thought there might be four loads in it.

i'~ajor Shantl said lie heard a, consation between plaintiff and defendant. Plaintiff said lie thought there were four loads if not five in the stack; and that if there were not five loads they would not quarrel about the price. The hay was carted in a one-horse light spring cart, and he thought there would be about 15 cwt. in a load. He had bought threshed hay at 25s a load delivered at his stable, and unthreshed bay at 30s a load. The hay in this case was ordinary unthreshed hav. By Mr Coleman : He could not name any person from whom be had bought unthreshed hay at 30s a load. Michael Ready, stablokcepor, said he had bought a load of hay from defendant. He paid £1 for it. The weight was between 12ewt. and 14 cwt. He had bought a two-horse load of better hay than plaintiff’s at 25s a load delivered. John Chambers, groom, said he helped to load the hay. There was from 12cwt. to 14cwt. in the first load, and loewt. in the second load. After Mr Stock and Mr Coleman had commented on the evidence, His Worship said that the evidence in the case was very unsatisfactory. There woul he a verdict for £2 (the amount defendant had paid into court, 10s costs, and defendant would be allowed costs, because plaintiff did not accept the sum paid into court. ALLEGED BREACH QF CONTRACT Arthur iShapton Richards, fruiterer, Gladstone road, Gisborne, sued Thomas I’izzey, fruiterer, Gladstone road, Gisborne, for £SO for breach of contract to buy his business for the sum of £2OO .

Mr T. Alston Coleman appeared for plaintiff, and the defendant was represented by Mr E. AY. Nolan. Mr Coleman, in opening the case, said defendant had entered into a written agreement to buy plaintiff’s business as a going concern for the sum of £2OO. The same day on which the contract was made the defendant came to plaintiff and said he did not see his "way to pay the sum of £2OO : and ho offered £IOO in cash, and £IOO in hills to mature within 12 months. The plaintiff declined this offer, and defendant refused to go on with the contract. The plaintiff after making the contract had arranged to leave the district; hut in consequence of defendant failing to fulfil his engagement the plaintiff had been put to the loss and inconvenience resulting from the abandonment of those arrangements. The plaintiff was called and deposed to the drawing up and signing of the contract. The contract now handed in to the court was the one he and defendant had signed. Prior to the. contract being entered into defendant inspected liis books to see what business lie had being doing, and also' to know wliat were the sources of his supplies. Ho (plaintiff) told him which Auckland firms he found it most advantageous to deal with, and also pointed out that some of the firms were more liberal in their terms than others. All the information was supplied and contract entered into at one interview on the 3rd December. About six o’clofck the same day he saw defendant in his own shop. The latter, after a conversation with his assistant, said he was afraid the deal would he off because another party who lie was about to take in as partner refused to give anything for the goodwill of his (plaintiff’s) lease. Plaintiff then asked him who the partner was, and defendant said that he had promised not to divulge his name. Plaintiff then told him that it was difficult to obtain premises on a decent lease, and that he thought liis lease was reasonable at the sum of £7O asked for it. Defendant replied that lie Avns-satisfied, but his

partner had since gono back on his word, having promised to go partners with him if ho found the business to bo wlnit ho (plaintiff) represented it to be. Defendant said, “i could givo you £IOO if you would take a promissory note or a bill for 12 months for the balance.” lie (plaintiff) “said he would not do so, as he intended leaving the district,, and that perhaps when the bill or promissory note became due he might be in some other part of the colony. Defendant then said ho was sorry that they had both been made fools of. Ho then offered him (plaintiff) one shilling in payment for the stamp placed on the agreement. Plaintiff declined it, and said he was sorry more particularly for his wife’s sake, because they had anticipated being in Auckland together after the sale. Defendant said he was sorry, but that it could not he helped, and nothing could be done. He (plaintiff) then said, “ I have that piece of paper.” His Worship: What piece of paper wore you referring'to? PlaintiffTo the agreement. Defendant said, “It is'no good.” I

asked him who said so, and he replied, “The oilier party.” Defendant admitted that he personally was satisfied with iiis premises and business, and he would take them over if he (plaintiff) would take £IOO cash, and leave the balance to he paid within 12 months'. Plaintiff refused to accept the offer, and subsequently placed the matter in the hands of Ids solicitor. Defendant knew that lie (plaintiff) contemplated going to Auckland at the time when the agreement was broken. Had not ordered supplies for the week, and consequently lost from £3 to'" .fib that week. Ho estimated that if he had sold the business to defendant for £2OO he would have cleared about £SO. He had not found it possible to sell his business since then. The best time to dispose of a fruiterer’s business was during the month of November and before the end of December.

By Mr Nolan: He had showed Mr Pizzey his day book and his cheque book. When the agreement was drawn up and signed defendant, referring to the suggestion that the agreement should he stamped, said. “I am as good as my word, and the money will bo there to-morrow.” He suggested to defendant the same evening that he would he able to raise the money on the two businesses. Ho did not know that defendant was dependent upon someone else for financial support. By Mr -Coleman : The £2OO was made up in this way —interest on lease, £7O; stock in trade, between £3O and £4O; cart and harness, about £4O; scales, tarpaulin, etc., £o; the balance goodwill. James Walter Bull, fruiterer, Gisborne, said be had ll years’ experience in the fruit business. The Christmas season was the best time for the sale of a fruit business. James Fisher, fruiterer. Gisborne, said he had 1(5 years’ experience in tile fruit business. The best time Lo sell a fruiterer’s business was ill November or early in December. After that time the value of a business would lie much less. £4O was a very reasonable sum for the goodwill of a cash business.

This was plaintiff’s case Mr Nolan said all the evidence lie proposed to call was tile defendant s. The plaintiff knew all along that defendant required financial backing. Thomas Pizzey, the defendant, examined by Mr Nolan, said: When the agreement was drawn up plaintiff said to him, “Come along and I will put a stamp on the agreement. It will bo security for you and me.” He said lie had bad two other offers for the business. One of tlie persons wlio made him an offer was Mr Chilton, and plaintiff said that if the gentleman had come with the money he would have disposed of the business. He (defendant) said to plaintiff, “Let the agreement remain without a stamp until I see the man I am going to get the money from. I shall see him about five o’clock.” Plaintiff said nothing. The agreement was stamped afterwards. Plaintiff came to him later in the day, and he (defendant) told him he had seen the man from whom he hoped to get the money, and this person had refused the money. Ho then told plaintiff that he could not carry out the agreement. By Mr Coleman : He had half share in tlio value of some property at Napier. He received 4s 6d per week from it. It was liill property. There was only one building on it. His Worship: What is the value of the property? Defendant: I don’t know. His Worship: You don’t know the value! .Defendant: No, your Worship. It is about lialf-a-mile from the Post office, and I get 4s 6d from it. By Air Coleman: He had no money in the bank. He did not think the agreement was binding as unstamped. His Worship said it was not denied that a proper agreement was entered into between the parties, but defendant said it all depended on another person finding the money. His "Worship gave judgment for plaintiff for £lO and costs.