SUPREME COURT, HOKITIKA.

Hokitika Guardian, 23 June 1921, Page 3

SUPREME COURT, HOKITIKA.

THURSDAY, JUNE 23. (Before His Honor Mr Justice j Herdman). i His Honor took his seat at 10 a.m. SUIT. William Herbert Robinson, of Christchurch, timber agent v. Robert Whiley and Margaret Whiley, of Kokatahi, sawmillers, a claim for £2550, for breach of agreement, in connection with the alleged sale of the output of defendants sawmill to the plaintiff. Air Joyce, with him Mr Sargent, appeared for plaintiff and Air Alpers, with him Air .Murdoch, for the defendants. The following special jury of twelve wits empanelled :— Henry Selnvass, Joseph Hutchison, August H. Schroder, Vivian W. Bonnr, Frederick Willoughby, Robert A. Dotlaff, David Bradley, John Cutbush, Durham R. Dowell, Fred Ross, Robert M. Kane, Herbert C. Key. Mr V. W. Honar was chosen foreman.

Air Joyce challenged—A. Aitken. Mr Murdoch challenged— Peter Stephens, Herman Schultz, Amos AY. Dowell, James Wells. Air Sargent opened the case for the plaintiff. Most of the facts would not he disputed but there were some to he decided by them. In Alareh of Last year the plaintiff was approached by Mr T. R. Hickson on behalf of R. and

M. Whiley, who stated lie wished to sell the output of their mill at Tvokntalii road, as from Ist September, 1920. After some conversatiion, Robinson

wrote out a draft offer, which was duly accepted and confirmed. There was some dispute as to some conversations, and also ns to whose agent Hickson was. Robinson then proceeded to arrange for the re-sale of the output to Oiitinerson and party, at the price of j 21s (id per 100 ft. The price charged by I Whilcy was 17s 3d per 100 f.o.h. Greymouth. Counsel proceeded to outline tlie contents of the letters that passed between the parties. It was till 10th August that defendants’ solicitor notified that the contract was. off, the deed not having been completed within one month. The explanation of the repudiation was that the price of timber was rising, and that he received an offer from Mark Kprot and C’o. for 19s 3d. Robinson was claiming the difference in the price he was to pay Whilcy, a lid that which lie was to receive from Gunnersons Ltd. On 31st August the defendants had sold their property to Whilcy and Whilcy Ltd. I Evidence was led as follows: William H. Robinson deposed lie was a timber agent and merchant residing at Christchurch. On 3rd. March, 1920, he was approached by Air T. R. Hickson, manager of the Bank of New South Wales at Hokiitka. who asked |,in, if he thought he could handle Whiloy’s output, lie mentioned it in the street in the first place. Witness replied that it depended upon the price at which it could be procured, and if ho received an offer from AA liileys to j sell their output to him nt or about j 17)-, he thought he could do business, j He knew AVhileys were then getting ■ about 14/3 or 14/6 from Mark Sprot and Co. He .regarded Mr Hickson ns Whilevs’ agent. Hickson said he bad no authority to deal with the output un- . less Whileys confirmed it. but he could approach them, or would have to see ' them. Witness then wrote out an offer which be would require it to be in the 1 form of. Witness gave this offer to , Mr Hickson to give Whiley and Whilcy, ! ns witness was going away the following morning. Air Hickson returned. the document to witness the same evening. ( signed bv R. Whiley for R. and AL Whiley. He took tlie offer away to Christchurch. On 10th. March he sent an acceptance from Christchurch. Tim last few lines on the bottom of the acceptance page wore in NYhiley’s writing He returned the acceptance through Hickson, and then the document was returned to witness. Tn the third week in March witness bad a discussion with R. Whiley as fo drawing up documents. Hickson suggested an agreement should be drawn up. Air Whiley said Air Pilkington was his solicitor. Then proceeded to Air Pilkington’s office, where the terms of a further agreement were partially agreed upon. Have not seen Mr Whiley on the matter since that date. A draft of the agreement was handed by witness to bis solicitors at Christchurch. Tn the meantime he conferred with Mr O’Neill, representing Gunnersons Ltd., and sold the output to them at 21/0. less 21%. A formal contract with them was entered into on 20th. A!av. Timber was rising and rose to 27/6 about October. Wrote a letter to Whileys sending specifications of timber to be delivered early in September. Received no reply. Also wrote to Whileys stating Air O'Neill would wait on them to arrange for shipment. Could probably have disposed of ten million feet during the year. Air Whiley asked if it could be arranged for an advance of 60% on what he C ut. Told him he ; would endeavour to arrange for this. . Relieve Air Hickson was present at that time.

To Mr Alpers—Knew Mr Hickson for 8 or 9 years. He was bis banker. His bank lias no connection with his finance. Had other bank connections with Mr Hickson. Had other milling interests in which Mr Hickson was interested witness was not yet, but will be a shareholder in the Gorge Company. Mr Hickson was a member of the syndicate. He bad not yet taken up shares. The calls for the Gorge syndicate were coming to him. It was in the afternoon when Mr Hickson came to him about Whiloys output. He regarded Mr Hickson as doing Whiley’s business, as well, may be, as witness’ own. He asked Hickson to go out to see Whiley. Hickson did not assist in any way whatever in drawing up the offer. Hickson suggested be should draw it up in the manner that be desired. When be asked Hickson to get Whiloys signature he said he did see why he should go., ■Witness paid for the car for Hickson to go out. Hickson was not keen on going. He did not see why he should go. Hickson came back the same evening with the offer. He did not accept the offer at once, because be wanted to consider it. He did not necessarily want the month to cable Gunnersons. Maybe be wanted to make reasonably sure if he could sell it. Concluded the contract about 25th. May, Prior to 25th May was in communication with Gunnerson T,tdi. for the sale of tho

output. This was the second action brought, one was brought in S e Pt 1920, and discontinued on 9th. March* 1921, and the present action was brought on 18th. Alareh. ,He claimed £2550. In the first action he claimed £4,550. In this claim he stated he had paid £2OOO to Gunnerson for failure to deliver output, but he had not paid it. He had concluded that be would have to pay that amount before the action took place. He had not approached Mr Hickson for financial assistance, Gunnersons have demanded £2,000 from witness by letter. He put his solicitor in funds to pay the costs of discontinuance on 29th. April 1921. He handed over the amount asked for by his solicitors. Witness posted the letter of 10th. Alareh 1920 to Hickson, with tlie request that he should deliver it to Whiley. Think Hickson posted back Whiley’s confirma- , tion. Read Whiley’ addition to the offer for agreement to be made within one month. Referred the whole matter to his solocitors shortly before April 3rd. Afenmvhile had seen AVhiley on 22nd Afarch at Hokitika.

His Honor—There was a complete acceptance on 10th Alareh. On 22nd. Alareh at Kellers, Hickson and Whiley came together. Went with Whiley to Air Pilkington’s and gave instructions. Asked Whiley if ho had any objection to extending the offer for a further twelve months. They also

agreed if there was a further rise in rail freights that witness should pay half. Before witness left all the terms of tlie agreement were agreed to. Re-examined by Air Sargent—There was no attempt to pay the costs of discontinuance before 19th. April. The first cheque sent was sent back by defendants solicitor. Gunnersons were still claiming £2,000 damages from witness. He calculated the claim on the difference between the amount to be paid Whileys and what lie had sold it to Gunnersons Ltd, and on the assumption that 100,000 feet per month was supplied in terms of the oontract. His Honor said the damages that plaintiff could seek to recover would he the difference between 17/3 and 21/0, on the actual output. Henry O'Neill deposed he was the New Zealand manager for -Gunnerson lYopt. Ltd. of Melbourne and bad been in New Zealand since November 1919, purchasing timber. Had a conference with Air Robinson in reference to purchasing tlie output of Whiley’s mill and on 25th. May concluded a contract to purchase same at 21/6 less 2£% f.o.h. Greymonth. Between April and October timber showed an inclination to irise. .In August and September as bigb as 27/6 had been paid for white pine f.o.h. Greymonth. There was a small supply and a great demand. He had made a claim against Robinson for £2OOO. He was prepared to take the "hole of AVhiley’s output for the year at 21/6, less 2|% f.0.h., Greymouth.

To Air Alpers—Robinson can still complete tlm contract or pay the £2OOO. Theodore Richard Hieksoii deposed he was manager of the Bank of New South AA r nles at Hokitika. On 3rd Afarch 1920, he was the banker of AVhiley and AVhiley. He believed Whileys were getting 14s 6d all round at that time. He had discussed the getting of an increased price. He told R. Whiley that he thought he could get an increased price. He saw more than one, and then saw Robinson. Tt was at AA’hiley’s request tliat ho endeavoured to get n higher price. Robinson said he would be prepared to consider an offer in writing and at witness’ request ho put what lie wanted into writing. He was acting with a view to getting a better price for AVhiley. Robinson asked witness to lake o’ut the draft offer to AVhiley. AVitness refused, but Robinson asked him as a favour to do Iso as he was busy. AA’itness said be did not feel inclined to bike out and Robinson said lie would provide a car. Saw Afr and Mrs AVhiley and showed them the letter and asked him to sign the letter if lie was agreeable. They had a general discussion and eventually Mr Whiley signed it. There was some conversation about the agreement not being full enouglv in ‘detail, but witness said that could be arranged afterwards between them. Brought back the offer and gave it to Robinson. To his Honour.—Tl was agreed in witness’ office that bo should endeavour to got a better price for AVliilev’s timber. This was before entering into any negotiations with Robinson. Tt was in pursuance of this arrangement that he interviewed Robinson about the purchase of Whiley’s output. To Mr Sargent.—Some days after the oiler was signed, he received an acceptance from Robinson, with a request; to obtain a confirmation by AVhiley. AVcnt out to Whileys and AVhiley signed the confirmation with a footnote that an agreement was to be drawn up and signed within a month. Posted this to Robinson. About a fort night later witness, Whiley and Robinson met and it was decided to go to Air Pilkington to arrange details. To Afr Alpers—He did not remember that any particular details were discussed when the offer was made at Kokatahi. Did not remember any reference to a congestion at Hokitika. It was quite possible that some reference may have been made to possible congestion of the timber skids at Hokitika. He did no£ remember any particular amount being mentioned as to the loading of trucks. It was quite possible that AVhiley said Robinson would have to pay the excess cost of loading caused by the blockage of the skids. Witness did not reply. He would not say they could get ove r the difficulty by railing ft to Greymouth as lie would not know anything about it. It was quite possible he said that these differences could he fixed up afterwards. AVitness did not suggest a further agreement, hut that further details could he agreed upon. He believed there was nothing in the letter about the time and mode of payment. He remembered AVKilcy saying where is Robinson going to get the money, or words to that effect. Ho remembered answering; “T give you my guarantee that Robinson can pay cash against documents at the Bank of New South AVales, Hokitika. Witness added that Robinson would deposit at Hokitika. Both AVhiley and witness regarded the question of cash payments as an important one. Whiley did not say that the question of cash payments should he included in the agreement. He did not think that the suggestion about one month to be given ‘for t]ie agree-, nient, wa? made by him Witness

thought he had pointed out to Whiley that ho was not getting enough for his timber. Ho thought AVhiley said if you can get a better price, get it. He was not particularly disturbed about AVhiloy’s overdraft at that time. Jhis conversation was in December 1919. Saw Robinson several times in 1920, prior to March 3rd. Did not consider the conversation as a job, but lie undertook to see what lie could do. He had in mind Gunnerson Prop. Ltd., and MalI'roy and Co. On March 3rd. he had no 'business relations with timber with Robinson apart from this. Have been for 18 months personally interested in the Hokitika Gorge syndicate. Robinson is not a member, but lias an option over the property. Prior to March 3rd witness had an option over a reservation and plant from M r Wlnloy. He paid £SO for the option, which was dated Feb. 28th. Mr Joyce rose an objection as to revelancy. . Mr Alpers said one of tho points of the defence was as to the agency of witness for Robinson.

His Honour failed to see that it was revel ant. AA’itness continued—Had made two affidavits, the first for defendant and the second for plaintiff. Do not remember a third one. The Court adjourned at' 1 p.m. AFTERNOON SITTING. Tlh> Court resumed at 2 p m. J. R. Hieksoii, cross-examination continued—Satisfied the affidavit of 7th February last "as correct, except for winds ’“one month.’l- Conversation took place before tlie offer was signed. Tho first two affidavits were sworn on behalf of Mr AVhiley. The third he was fairly sure "'as sworn on behalf of Mr Rohinson. The thing was talked over in Keller’s commercial room. Mr Robinson had pointed out that his case rested on the two letters as a- completed contract. He said he had seen witness’ affidavit of Oct. 7th. Had asked witness if he was sure that it was agreed a further agreement should he made within a month. He did not think that anv one suggested that the conversation of March 4th took place cm Alareh 10th. Witness knew it took place on March 4th. The conversation as far as lie knew, took place on both 4th and 10th. Tlie affidavit of Feb. 22nd was read by witness before ho signed it. Robinson sent a covering letter with the acceptance of the offer, asking witness to send it to AATiiley Counsel read the affidavit of 82ml Fol»., and asked witness which were true. AVitness was now quite certain when the conversations took place, but be thought they took place on the 3rd and 10th. . , AA’itness did not write out the script of the affidavit. He could not remember now or on February 7th. or 22nd, all that took place oil March of the previous year. Before making the affidavit of the 7th. he read if over carefully and noted alterations . required. Before witness signed the ith. Feb. affidavit, Mr Sellers was certainly careful about having it right. It was not right that neither Whiley or his wife asked witness to get a better price. They gave witness permission to try and get a better price, but whether they asked him to do so ho could not sav. He knew that AVhileys had a twelve months contract with Mark Sprot from Sept. 1919, to Sept.. 1920. In December AVhilcfv asked him to get him a better price when his contract had expired.

To Mr Joyce—He did not know whether lie had acted for AVhileys or not. He advised them as he did other customers. Tlie question as to the price of timber was mentioned on more than one occasion. On March 3rd when lie went out to YVhileys they conversed for about half an hour. There was no demur about the price offered, and AVhiley seemed quite satisfied to sign. ITe was quite clear that on 11th. March when AA T hiley added the lines to the agreement, Whiley said lie was quite sure the reference was in he offer, bid witness could not see it there.

Arthur (leorge Pilkington deposed lie was a- solicitor practicing at Hokitika. R. Whiley and Robinson waited on him on 22nd March. Robinson said he understood witness was solicitor for Whiley. Robinson said they had had a timber deal. An offer by Whiley of 3rd March and an acceptance on 10th. March by Robinson, with an endorsement of same by Whiley. He was instructed to make a formal agreement, on terms of offer, payments monthly, with specifications of timber. He was also supplied with copies of and acceptance. His instructions were to draft a document and send a copy to Robinson as soon as convenient. On 24th. March posted a copy to Whiley and one to Robinson. Received letters and sent replies as put ip, that passed between witness and the solictors for plaintiff. The first offer of repudiation tq Robinson qj> his solicitors of the agreement was on fifth August, The fJrnft agreement hfld been ftpprfived by

the solicitors of both parties and then Whiley had refused to sign. To Mr Alpers.—There were several things in the first draft which he could not have inserted from the two letters. To his Honour.—There was no outstanding alteration made at the interview that ho could refer to. This was the case for the plaintiff. Mr Alpers asked leave to move for non-suit of plaintiff under rule 241, on the grounds of non-payment of discontinuance costs. His Honor promised to note it. (Left sitting.)