DISTRICT COURT.

Hawke's Bay Times, Volume II, Issue 39, 27 March 1862, Page 5 (Supplement)

DISTRICT COURT.

CBefore J. Curling , Esq., Judge.^ TnujisDAY, March 20. The last case, a jury one, was Jleslop y. Mcllar-(h, and was an action brought to recover damages for the non-pcrforrnance o/f a contract, under which the defendant agreed to supply the plaintiff with a certain number of posts and rails for fencing purpose^.

Mr. Allen appeared for tlxe plaintiff ; Mr. Wilson lor the defendant.

The agreement was dated 28tli May, 1861, and under it the defendant was to supply the posts before the Ist day of January following, for £sl. He cut the posts and, brought them part of the way down, but then sold: them to a third person for a larger sum. A public road was made through the defendant’s property, and he required the posts to fence it off. Of course the non-de-livcry occasioned him considerable inconvenience and loss ; he, however, offered the defendant fresh terms, which he promised to accept, but failed to carry out. The agreement and foregoing facts were proved by Mr. Heslop and Mr. G. Aiken, and Mr. Tiffen and Mr. Alexander were called to prove the injury done to the plaintiff by the want

The plaintiff, in evidence, stated that the price ofiored by him,. £sl, was a fair and reasonable sum. He stated that shortly after the making of the contract he was offered by a man named O’Brien a similar quantity of posts for £4O. Since then posts had risen considerably in value. He proved that the defendant had brought down a largo quantity of posts to his place, and instead of delivering : or tendering them to him had sold them to a neighbour, Mr. Breingan ; and that hs had also sold three thousand other posts to Mr. Lowry at £7O per thousand during the running of

the contract. Finding that ho could not get the posts in time, he had offered to extend the term for two months, and a fresh agreement had been drawn up to that effect; but after assenting to the terms, defendant had refused to sign it, and had not delivered a single post. He explained that he had suffered very considerable injury though defendant’s default, a public road having been opened through his paddock, which led to endless trespass over his grounds for want of fence, and had prevented his laying down the adjoining land in crops. On cross-examination it was attempted to be shown that he declined to take posts except of the exact size, and had refused all smaller or larger ; but he denied this, and explained that he had only - refused to take any less than twenty inches in girth, as they would bo useless for the purpose he required, viz., for morticing, and he denied that any tender or offer of the posts had been made to him.

George Aiken corroborated the plaintiff’s statement, and proved that he had drawn up the agreement from their joint dictation, and that the size of the posts had been specially discussed and agreed upon. Mr. A. Alexander proved that he owned the land in question, and that the want of a fence, under the circumstances, entailed considerable loss and injury to plaintiff. _ Mr. H. S. Tiffen, the Crown Lands Commissioner, gave somewhat similar evidence.

Mr. Wilson, for the defence, after admitting the agreement, and the breach of it, asserted that ho should be able to show that the plaintiff had tried to take advantage of the defendant, and had exacted such hard terms that Mcllardy had been unable to carry them out. He stated that he should prove that Heslop had declined to take any posts unless of the exact dimensions, whether smaller or larger, and that it was impossible to split them to the exact size. He denied that plaintiff had sustained any damage, and contended that he should have got posts elsewhere, and if he had to pay more for them then he might have sued defendant for the difference. The defendant was called, and stated that in November he brought down a thousand posts to within half-a-mile of plaintiff’s landing-place, and that he could have taken them then, but declined to do so because they were not of the right size ; that the size required was unusual, and that he co\dd not get them split to it. He admitted the sale to Breingan on the Monday after the posts had been brought down on the Saturday. He offered the posts he had cut, which were much larger than those contracted for, to the plaintiff if he would pay an extra price.—ln cross-examina-tion ha admitted that he never did tender or offer any posts, and that he sold those which he brought down to Breingan because plaintiff would not take them. He denied that any amount had ever been fixed between him and Breingan for their price—the account was still open. John Haggard, a splitter, was called to prove that the posts cut were good ; and that he heard a conversation between plaintiff and defendant, when the former said he was being humbugged ; that he would not object to take ten beneath the dimensions, but that he would object to twenty, and would measure them all. They all averaged from twenty to twenty-four inches. M. Breingan proved, that being present with plaintiff and defendant on the Monday in November, former said to defendant “Yon Lave sold the posts because you got more for them - ’; and that when plaintiff asked defendant if ho was going to give him the posts, defendant replied, “ I have no posts ; they are all sold.” In reply, Mr. Allen submitted to the jury that his case, which was fairly and fully established by the plaintiff", had been made doubly sure by the defendant’s witnesses ; and he urged that the evidence of Haggard and Breingan destroyed the defence, and strengthened the plaintiffs assertion. He commented upon the conduct of defendant and Breingan in the bargain for the posts, which should have been delivered to plaintiff; and urged that the story of no price being fixed was a preconcerted scheme to prevent plaintiff from proving they were sold at a higher rate. Ho defended plaintiff from the charge of having taken advantage of defendant, and urged the improbability of his having refused better posts for inferior ones, alleging that it was proved that plaintiff had only refused to take posts “ beneath the dimensions,” which would be useless to him ; and he concluded by calling upon the jury to give plaintiff reasonable damages. His Honor having concisely and clearly put the facts to the jury, who did not require the evidence read through, they retired for about twenty minutes, and then found for tho plaintiff, with £3O damages.

J Barry v. Livingstone. His Honor delivered judgment, dismissing the application for a new trial, with costs.

Oliver v. Blair.

His Honor delivered judgment in favour of the plaintiff for the amount claimed, on the ground that the first contract being determined, the plaintiff and defendant entered in a second contract, which had been proved, and being an original one did not require to be in writing, the plaintiff having given credit to the defendant alone.