A MERCHANT’S CLAIM.

Gisborne Times, Volume XXVI, Issue 2317, 9 October 1908, Page 3

A MERCHANT’S CLAIM.

QUESTION OF LIABILITY.

“SOAIETHING AIORE THAN A MISTAKE.”

An interesting liability caso was heard at the Magistrate's Court yostorday afternoon, when Messrs L. 1). Nathan and Co. (Air. J. AA’. Nolan) sought to recover £2 16s from Michael Mahonoy (Air. AY. L. Bees), being tho value of a crato of biscuits alleged to have boiui collected at the wharf by defendant’s employees, and not delivered to tlio plaintiffs. Forbes AV. Riach, manager of the plaintiff’s firm, said that in Alareh last defendant did all tho carting for the firm from tlio wharf. In Alnrch the firm ordered a crate of biscuits from Dunedin. Tho biscuits arrived and ho had tho office copy of tho freight note (produced). The enrter must prodneo tho duplicate order before he could take tlio goods from the wharf. Tlio crato did not reach witness’ firm, and was addressed to J. S. Cooper. Defendant told witness that ho was in the habit of doing Cooper’s carting, land lie was handed the freight note. Mr. Cooper had claimed on witness’ firm for tlio goods. AV it ness saw tho defendant on tlio Monday after delivery from (ho wharf, ami informed him that Cooper had written stating ho had -not received tho goods. AVitness siiid ho would look into tho matter, mil a day or two later said he could find no trace of the goods. AVitness 'next spoke to defendant’s carter, Ilorsofiekl, who said that ho had been at the wharf shed and helped t<> load the crate on to another cart of defendant’s. About a week later witness aglin saw Horsefioltl, and told him that ho (witness) was going to put tho matter in tlio hands of tho police. Horse fie Id thereupon said he had helped to unload tlio crate of biscuits at defendant’s store. Defendant had repeatedly denied, any knowledge of tho crate. On Alareh 24 defendant rendered a claim for carting, including tho crate in question.

To Air. Reos: Ho could not say who gave the freight note to defendant or his wife. He could not say if any claim for cartage of the crate from the wharf had been made. Orders for delivery of goods wore occasionally given to defendant's carters, not necessarily to defendant himself. Alfred AVard, tally clerk at the wharf, said that he received the freight notes at tho wharf, but could not say from whom. Tlio receipt for tlio goods was signed by Horsefioltl, who was in the employ of tho defendant. Tlio order would have to be produced beforo tho goods wore given up. The receipt was shown to defendant or his wife. To Air. Reos: Defendant or his wife wanted t 0 know who got the goods. Horsefiold did not cart the goods, including the crate, away, but signed for them and AlcLauglilin, defendant’s other carter took them away. This concluded tho evidence for the prosecution, and Air. Rees outlined the defence, and claimed that under law plaintiffs were not entitled to succeed. . Ho called

Alary Alahouey, wife of the defendant, who gave evidence of having gone to the wharf to obtain possession of 6ome goods consigned to Air. Taylor, of AVihataupoko. She paid the wharfage and one of the carters got possession of the goods. She never received an order to obtain a crate of biscuits from the wharf for Coopor, of Atorere. About Alay 29 she first heard that a crate of biscuits was missing, and no such crate had been brought to defendant’s store. She ascertained that Horsefield had taken delivery of the biscuits at the wharf, but personally she knew nothing of the mattery To Air. Nolan: AVhcn. she heard that the crate was missing she made enquiries but did not learn anything about it.

Alichael Alalioney said ho remembered one of plaintiff’s men saying there was a crate of biscuits for Cooper at tho wharf about Alareh 26, but lie received no order to obtain, it. About i.i mouth later he heard that the crate was missing. Both ho and his wife made enquiries about it. but to no purpose. AVitness’ carters often got orders from plaintiffs for the delivery of goods. Horsefield left his employment on Alay 8, and witness knew at this time that the crate was missing. AVitiness spoke to AlcLaughlin about the crate, blit he said he had not removed _it. from the wharf. AA’itness later in Alay heard that Horsefield had signed for the crate. To Air. Nolan : He made search ror the missing crate. . Martin AlcLaughlin said that he could nob remember getting goods at the wharf to go to Taylor’s. He did not receive a crato of biscuits for Cooper, of Alorere. To Air. Nolan: He could not say definitely he had not .received the crate. * Air. Reos said that lt-must ho evident to the Court- that something more than a mistake had occurred in the case. Ho held that the question narrowed itself down to one of liability, and also that under the circumstances and on tho evidence plaintiffs were not entitled to recover. As a matter of legality plaintiffs wero not entitled to proceed against defendant, as tho goods belonged to Cooper. Air. Nolan also addressed the Court, contending that defendant was. responsible to plaintiffs, as it was foi that firm he was working, ’there was absolutely no suggestion of any dishonesty on the part of defendant, hut it was evident that one of his employees had received the goods. His AVorship said that lie was satisfied from the evidence that one of defendant’s servants had received t.lio goods and had not delivered them. He was of the opinion that the plaintiffs were entitled to succeed. Judgment would accordingly bo for tho plaintiffs for the amount claimed, with £2 13s costs.