DISTRICT COURT, NAPIER.

Hawke's Bay Times, Volume II, Issue 47, 22 May 1862, Page 3

DISTRICT COURT, NAPIER.

(Before J. Curling, Esq., Judge.) Wednesday, May 21st. 1 he May sittings of the Court were opened this morning. There were 9 cases in the list, one or two undefended and 2 jury cases. The undefended cases were first taken. Maltby v. Williams Was an action for <£9s for goods sold and delivered. Mr. C. Allen held the brief for the plaintiff on behalf of Mr. Wilson, who had anticipated being absent at the sittings. He called the defendant, who admitted the debt, whereupon judgment passed for the amount claimed and costs. Bowman v. Williams. In this action the plaintiff claimed <£2o for ginger beer and other similar beverages supplied to the defendant. Tor the plaintiff Mr. Allen called the defendent, who admitted the debt, and judgment was given for the plaintiff for the amount sued for and costs. Oliver v. Blair. This was an action on a promissory note for <£2B 11s. Mr. Allen, for the plaintiff, called him, and proved the signature of the defendant, the presentation of the note, and its dishonor ; and judgment was entered fertile debt and costs. Buchanan v. Garry. This was an action of trover brought to recover 10 tons of coals, wrongfully sold by Mix T. 11. I itzgex-ald to the defendant, or £35, their value. Mr. Allen appeared for the plaintiff; Mr. 13. Taylor for the defendant. In this case a jury was empannelled and consisted of the following persons ;—Henry Charles Robjohn, foreman, Peter Searles, John H. Sebley, Wesley Roberts. The plaintiff's case was that Mr. Fitzgerald, having sent to Sydney for coals, -was unable to procure them, and applied to the plaintiff to assist him, -which plaintiff agreed to, on having an assignment of the bill of lading made in his favor, which being agreed to, plaintiff directed Ins agents in Sydney to purchase the coals, which they did, and shipped them on board Pat the Rover. Plaintiff paid for them and for their freight. Ihe bill of lading at rived before the ship, and Fitzgerald endorsed it to plaintiff, and banded it over to him. Plaintiff advertised the coals in his own name as about to arrive by Pat the Rover, and Mr. Fitzgerald advertised that the conduct of his steam flour mill was handed over to plaintiff*. Before the coals arrived, the defendant had offered to buy coals from Fitzgerald, who, when they came, without authority, sold him 10 tons at -£3 per ton in his own name, and being indebted to defendant, set off one account against the other, and made no mention of the transaction in the accounts he kept. Two or three days afterwards, plaintiff having been informed by Fitzgerald that he had sold the coals to defendant at three months’ credit, called on defendant with a promissory note at three months, and asked defendant to sign it, which he declined doing, stating that he did not know plaintiff in the transaction, and had bought the coals of Fitz Gerald, and would account to him for them. Plaintiff informed defendant that Fitz Gerald had no interest in the coals, and before long again applied to defendant for payment, which he declined to make; and shortly before the three months’ credit expired, defendant settled with Fitz Gerald, setting off a claim due from Fitzgerald to him, and paying the balance of <£l I3s. Fitz Gerald had endorsed the bill of lading to plaintiff, and the coals sold to defendant had been delivered to defendant from shipboard. The plaintiff had advertised the coals to arrive by Pat the Rover as his property, and Fitzgerald had never accounted to him for, or informed him of the sale to defendant. Mr. Allen stated the law on the subject, and cited the case of Spettigue v. White in support of his case ; and contended that, as the the coals were the property of plaintiff, and were never in the possession or ownership of Fitz Gerald, sale by him could not convey a title in fraud of the plaintiff, who was p'nfi+i'xi tu ict/uvci m uuo avuttUi Mr. John Buchanan, of Napier, merchant, was called, who proved the foregoing facts, and asserted that he neither knew of nor sanctioned the sale to defendant whentnade ; that he called on defendant for payment, when the latter informed him that he had bought of Fitz Gerald, and on plaintiff repudiating that sale defendant declined to pay him. He produced the -endorsed bill of lading, and the receipts for payment of the

price of the coals and of the freight by himself ; and he stated that the coals were never in Fitz Gerald’s possession, but were delivered to Rose, the carter, from the ship’s deck. Fitz Gerald had never accounted to him in any way for the coals. Rose told him he had informed defendant the coals belonged to plaintiff. He never knew of Fitzgerald’s selling in his own name, or authorised him to sell on his own account. The hills of sale, ■of freight, and the advertisements were put in, and proved and constituted the plaintiff’s case. lor the defence, Mr. Taylor contended that the law was wrested for the plaintiff’s purposes, and was not as stated ; and that if the sale by Fitz Gerald to defendant was bona fide he was not liable to plaintiff. Mr. Garry, the defendant, was called, and proved that he frequently dealt with FitzGerald for coals. That some time prior to this purchase he had applied to him for more coals, which Fitz Gerald had agreed to supply. That after their arrival he met Fitz Gerald, who then agreed to sell him 10 tons at .£3 10s. per ton. if plaintiff agreed to that price. That he received them through Rose, and that it was agreed at the time that, as FitzGerald owed him money, there was to be a set off between them. That plaintiff afterwards called on him with a bill for acceptance at three months for their value, which he declined to sign, as he did not know plaintiff in the transaction. That plaintiff again applied to him, when he again refused ; and he afterwards settled accounts with FitzGerald, and paid him £1 13s. as the balance due to him. On cross-examination, he admitted that when Rose delivered him the coals he told him that plaintiff claimed to be the owner of them ; but he made no enquiry into the truth of that statement; and though Fitzgerald had mentioned plaintiff’s name, and said he must apply to him on the subject of price, he didn’t enquire if plaintiff had any interest in them. He admitted that he had never made any enquiry of plaintiff or Fitz Gerald on the subject, but had relied wholly on Fitz Gerald’s statement, and had settled with him without requiring any guarantee. He had seen plaintiff's advertisement in the paper, but did not know it related to these coals. Mr. Thomas Henry Fitz Gerald stated that he had entered into an arrangement with plaintiff, under which they bought coals for their joint benefit, and he considered himself entitled to sell, and had accounted to plaintiff for this sale, An agreement between them had been drawn up, but not signed, and that he informed plaintiff of the sale, and had accounted to him for it. On cross-examina-tion he admitted endorsing the bill of lading to plaintiff, and passing the property to him in the coals, and that it had never been reassigned to him, but he argued that by the delivery of the coals to his order, he had been revested with possession. He asserted that he was jointly interested with the plaintiff in the coals, and had a right to sell, but he could not account for selling on his own account, and as a set-off against his own debt. He stated that he had delivered plaintiff an account of the sale, and had credited him in account. Mr. Allen recalled the plaintiff, who distinctly denied one and all of Mr. Fitz Gerald’s answers. In reply he pointed out that the possession of the coals was never in Fitz Gerald, and that although the defendant was not cognizant of the fraud, and was an upright man, incapable of lending himself to it, still there was sufficient suspicion raised by the statement of Rose, and the mention of plaintiff’s name by Fitz Gerald, to have his attention roused and to call for an enquiry by him as to the ownership of the coals, before purchasing them. He called upon the jury to reject the evidence of Mr. Fitz Gerald, as being satisfactorily contradicted by the acts of the parties, and the transfer of the bill of lading, and that the plaintiff, being blameless in the matter, and never having given any color to the sale of Fitz Gerald, who not had possession of the property, he insisted that if Fitz Gerald’s statement of the alleged partnership were true, he would only have had authority to sell for the partnership, and not on his private account. His Honor carefully summed up the case to the jury, and left it to them to say, first, whether the coals were the sole property of the plaintiff or not, and nest, as whether there w r as any collusion between defendant and Fitz Gerald—if there was not, plaintiff was entitled to a verdict; if there was, their finding should be for the defendant. The jury then retired for a short time, and on returning into Court, found that the property in the coals was in the plaintiff’, and that he was entitled to recover their value, viz., £35. Judgment accordingly, with costs.