DISPUTE OVER TREES.

Hauraki Plains Gazette, Volume XXXX, Issue 5438, 21 June 1929, Page 4

DISPUTE OVER TREES.

BREEZY PASSAGES. EVIDENCE IN COURT CASE. Lengthy legal argument and witness’ evidence was heard by Mr F. W. Platts, S.M., at the Paeroa Magistrate’s Court on Monday in a case which concerned a dispute between J. H. Evans and E. B. Kibble over some timber. Evans (Mr* R. S. Carden) claimei £l7 9s 3d for timber supplied, and Kibble (Mr A. T. Jones) counterclaimed for £22 6s, being the value of trees allegedly taken by the former, and damage to fences in so doing. Kibble, in answer to Mr Jones, said he was counter-claiming for 15 trees at 25s each and one at 15s, damage to fences £2 16s, and labour for four days at 14s a day to repair them ; tctal £22 6s. less £3 received—£l9 6s. Kibble stated that he had entered into a written agreement in September, 1924 (produced), with Evans, whereby the latter was to cut trees from his property at 25s a tree, with the exception of one at 15s. There had never been any variation made, and no agreement was ever made for paying at so much per foot. He had not asked Evans’ solicitor to pay for the trees cut, as he (Kibble) had been content to let the matter drop as he had Evans’ -imber and Evans had his trees. The trees were taken first and then the timber was supplied. He had not had any notice of the claim in writing, but some six months ago Mr Carden had stopped him on the street about the matter. The damage to the fences took him four days to repair. They were seven-wired, with wire netting at the bottom. The posts broken he had replaced with limbs from trees, and was claiming for labour only. In reply to Mr Carden’s cross-exam-ination Kibble said the timber pro cured from Evans had been used by a carpenter in the erection of a shed on witness’s property. He had received a cheque from Evans for’ £3. Mr Carden : Would it surprise you to see that only 12 had been taken ? Kibble : There were 16. I’ll take you up t<s see them. The only reply to Mr Carden’s questions to witness as to whether he had received any invoices from Evans or a letter from the speaker asking for money, was “I couldn’t say.” Continuing, witness said he had met Mr Carden on the street, where conversation took place. He remarked why should Evans get his trees and he have to pay for the timber. J. R. Pratt, carpenter, of Maratoto, examined by Mr Carden, said he had been engaged in October, 1925, to erect a shed on Kibble’s property. He had been instructed to order timber, and who paid for it was not his business, but he had been told to go to Evans for it and • Kibble would pay. When he a rived on the job there was a quantity of pinus insignus that had been there some time.

Evans, in the witness-box, said the first agreement referred to three trees only, two at 25s eaeh and one at 15s. Afterwards Kibble wanted another felled for himself and sawed into weatherboards for his shed. In payment witness was to have several smaller trees. Also, for any further trees he was to pay 2s per 100 ft. This was quite apart from the first three, which he had settled for with a £3 cheque on November 8, 1924. The Magistrate : £3 for how many 9 Evans : Two at 25s and one at 15s. The Magistrate : But that makes £3 ss. .

Evans : It is possible I gave the 5s in cash ; it is so long ago to remember. That transaction was settled. Witness said he had sent an invoice ‘to Kibble on October 1, 1925, for £ll 2s, and one on the 15th of the same month for £8 Os 9d for timber supplied to build a house. Mr Jones : What do you mean, a house or shed ?

Evans : A lean being built to have a house built to later.

Evans srJd he continued cutting at 2s per 100 ft. Later he met Kibble in the street and was asked by him for more timber for the shed. He had cut three trees and had credited Kibble with £1 13s 6d. Pratt had ordered more timber, and on being questioned by witness as to who was going to pay had said that Kibble would square up at the end of the month. When asked for payment Kibble had said that his wife was ill and he was in pressing circumstances, but would pay the next month. That was October, 1925. Later he met Kibble on the road opposite the sawmill. Kibble was very sore at being held up ; he went off in a wild fashion and got nasty. Witness on December 3, 1925, sent him an invoice for £l7 9s 3d, on the foot of which he had added, “Please let me know position, as I need the money as promised.” A duplicate of this document was produced for the magistrate’s inspection. He had never received an account from Kibble. The second transaction took place a year after the first. Trees purchased had always been measured. Credit had been allowed Kibble for trees received in 1925. The amount then owing to witness was deducted. Kibble made no further objection. As for the damage to the fence, witness said he was on the land at the time. One tree was felled across a fence and pressed it down for about ten yards. His men had taken the staples out previously. No damage worth mentioning had been done. It was a dilapidated fence of four or five, wires ; there might have been seven wires, he could not remember. Damage done where a log had rolled under a fence was repaired by witness, but one post which his men had broken had not been repaired. The fence had been left as stock-proof as ever it was. Kibble had never sent in an account for damages to the fence, although he had mentioned it verbally. Three hours ago witness had counted the stumps, there were 12, some so small that they were not worth reckoning.

A new verbal agreement had been entered into whereby fresh trees would be taken at a royalty. It was specially mentioned on the written agreement that all trees above the three were to be paid for on the

royalty basis. The magistrate, on examining the document in question, said it evidently referred to trees to be felled, but on further examination he remarked that it might be taken as reading already felled or to be felled. Evans maintained that only seven trees were involved. Mr Jones : What about the first agreement ? Witness : As I was unable to pay at the time Kibble wanted it in black and white

Mr Jones : But the written agreement docs not state *the number of trees. If three trees only, why did you not say so ? Witness : I left it to his honesty. Only three trees were being talke.l about at the time.

Mr Jones : What was the next agreement ? Witness : To fell one big one for his own use, and I to have some small ones in return.

The Magistrate : Where was this agreement made ? Witness : At Kibble’s house, at my mill, or at the hotel where I lodged. Continuing, Evans stated, in reply to Mr Jones, that the first agreement was entered into 12 months before he supplied the timber for the shack ; the second agreement cn the royalty basis was made after the timber for the shack had been supplied. Why he did not cancel the first agreement otherwise than verbally he could not remember, but as that transaction was already completed he did not think it necessary to do so. At any rate, if the 25s per tree basis had applied to all the trees, as Kibble maintained, he (witness) would naturally have taken the best. As it was, the best still stood there.

To have the opportunity of answering the arguments raised by Evans Kibble re-entered the witness-box.

Upon Mr Jones pointing out that it was unnecessary to swear witness again, Constable McClinchy retorted : “I am looking after this, thank you.” Kibble, in evidence, denied that there was e-'er any agreement to pay royalty, and that Evans had taken the trees because they were so handy to his mill. Mr Carden then asked, him if he could explained the credit for royalty amounting to £1 3s 6d, which had been given to him.

Kibble stated that he did not know anything about it. On being shown the credit note in question, Kibble said he did not understand what a credit note meant.

The magistrate asked if Evans had explained fully how the question of royalty arose. Evans, replied that he had been in the habit of paying Is per 100 ft royalty on pine trees round Paeroa. Kibble had wanted more, and he had agreed to 2s, as they were near to his mill. He was something of a “greenhorn” in those days, and had since learned not to pay more than Is royalty. Kibble interjected at this stage, asserting that what Evans had just stated was nothing but lies. Evans, retorting, said it was not he that was telling the lies, and if Kibble wanted to make statements like that he could come back to the witness box and make them on oath.

The magistrate concurred. With reference to the invoice, Evans said that others of no more intelligence than Kibble understood them.

As the case had evidently reached an impasse the magistrate, on the suggestion of the two solicitors, proceeded with the. interested parties to the property in question, where the stumps and fence were carefully viewed.

On returning to the Court the magistrate handed down judgment. Then® was a conflict of evidence, and the only witnesses to the transaction were the two parties interested, both of equal credibnty. There was only one way to arrive at a conclusion, and that was to examine the acts and conduct of the parties. Timber’ was on the ground when workmen arrived there. £3 closely approximated the value of the trees first cut, according to the statements of Evans. Kibble had received credit for royalties on six logs and an invoice with this credit on had been sent to him, to which he had made no objection. If holding to the agreement, on receiving the invoice he would surely have wished to know the reason why. No debit note had been sent by Kibble. A further' invoice had been sent to Kibble showing this credit with a footnote, “Please let me know-position, as I need the money as promised.” Furthermore, no account had ever been sent in by and Evans had never asked for one. On examining the site he (the magistrate) had found that there were only 13 trees removed, which fitted in with Evans’ story. The only concluskm he could come to was that Evans’ siory was the correct one, as the whole of the evidence adduced by him was consistent with the position as stated by him. He must therefore non-suit Kibble’s counter-claim, but would allow him £1 damage to fence. Judgment would be given for Evans for £l6 .Is 3d and costs £5 16s, a total of £2’2 5s 3d.