TE KUITI S.M. COURT.

King Country Chronicle, Volume II, Issue 82, 15 May 1908, Page 5

TE KUITI S.M. COURT.

Wednesday, May 13TH, 1908. (Before Mr E. C. Cutten, S.M.) Judgment by default was given in the following civil cases : —Watts v. McMcckin £24 and costs £2 14s ; Hegglin v. McMeckin £7 15s lid and costs £l 3s 6d ; Hattaway v. Wallace £ll /s iod and costs £2 13s 6d ; Morgan v. Box £1 ios and costs £1 15s. INFECTED SHEEP. For having exposed lice infested sheep for sale at Te Kuili Mr Bayly was fined ios and costs. Mr Hine appeared for the Stock Department. LEVER V. KNAUF BROS. The hearing of this case was concluded last Court day,_ when judgment was reserved. His Worship delivered judgment in the case as follows :—" This is a claim for damages for breach of an to supply milk to a dairy factory. The facts constituting the breaches of agreement are not disputed. The Plaintiff is a dairy factory proprietor, and the Defendants are farmers. An agreement was entered into between the Plaintiff on the one part, and the Defendants and a number of other farmers on the other part, by which the Plaintiff undertook to erect a dairy factory, and the farmers to supply to the factory milk from the number of cows set opposite their respective names in the schedule to the agreement. Fines to be paid to the factory proprietor by farmers failing to supply milk as agreed, are fixed by the agreement. This action is a claim for the amount of fines incurred by Defendants for failure to supply milk. These fines are obviously intended by the parties to be by way of liquidated damages, and not penalties, for they vary, in a more or less equitable way, to meet the circumstances of each case. The breaches of agreement on the part of the Defendants not being denied, the Plaintiff is entitled to the damages ifixed by the agreement, unless there is some answer to the Plaintiff's claim. It is contended on behalf of the Defendants that they had justification for not sending their milk to the factory. They allege in the first place that Plaintiff's factory was not ready to receive the milk. If the Defendants had taken their milk to the factory and the Plaintiff had refused to receive it, that would, in ordinary circumstances, have, no doubt, been a complete answer to the Plaintiff's claim In this case, however, it is by no means certain that the state of affairs would have been an answer, the Defendants having informed the Plaintiff that they idid not intend to send their milk. It is not necessary to consider the point, because it is quite clear from the evidence that the Plaintiff was ready to receive the milk had the suppliers sent it in. It is true two suppliers did send in their milk, and Plaintiff refused to receive it, but those suppliers were not the Defendants. The two suppliers who sent in their milk together were milking about 25 cows. It is obviously impossible to run a dairy factory on twenty-five cows, and it is not surprising that, when this was all the milk coming in, the plantiff was unable to take it. Evidence was given on behalf of the defendants and other alleged defaulters on the pari of-the plantiff. Reference was made to a dispute about the balance of money due to the suppliers from last season's working, and as to whether the plaintiff was justified in holding these moneys against fines.which he claimed were due to him. Evidence was given, too, concerning other matters connected with the accounts between the factory and the suppliers,. In my opinion 'these things do not meet the plaintiffs present claim. If they j involved breaches of the agreement between the parties, and the defendants are aggrieved thereby, it may be that they are entitled to damages; or, if they are merely matters of account, some moneys may be due to the defendants in respect of them. But, before they could be set against the plaintiffs present claim, the amount due to the defendants would have to be ascertained, and there was nothing before the Court to enable it to ascertain what, if anything, was due to the defendants in respect of these matters. There is a provision in the agreement for the reference of such matters to arbitration. The damages, or moneys, due to the defendants would have to be ascertained, either in that way or by cross action, before, in my Opinion, these matters could be set up to meet the plaintiffs present claim. Judgment for plaintiff for amount claimed and costs." Mr Northcroft appeared for thr Plaintiff and Mr Hine for the Defendants. A PIG KILLING CASE. Peter Pippen, a railway workman, was charged with unlawfully killing a pig, the property of a Maori named Mahuri, at Mangapeehi on March 16th last. Constable Mathew conducted the prosecution and Mr Gillies appeared for the defence. In outlining the case for the prosecution Constable Mathew stated that on the date mentioned Mahuri saw defendant near the Mangapeehi stream with a pig in his possession. Mahuri, upon going to the place where he had seen defendant, discovered a pig disembowelled and with ! the ears cut off. In close proximity j he came upon the entrails buried in i the sand. I The Constable stated, in evidence,

that on March 16th he was at Mangapeehi and I\lahuri complained to him that one of his pigs had been'killed by a platelayer. He proceeded to the place where the entrails were buried. The carcase was still warm. There was a fresh print of a heavy boot _in the sand close to the buried entrails. Witness went and saw defendant, who denied any knowledge of the pig killing. Defendant accompanied witness to the place where the entrails were buried, and admitted the footprints might be his. as he had been round that place looking for another dead pig. The other dead pig referred to was on the other side of the railway line. It also belonged to Mahuri, and had been killed by the train. Witness instructed Mahuri to bury it as it was a nuisance.

Cross-examined by Mr Gillies witness stated Pippen, on being asked* took off his boot and made an impress §ion alongside the. footprint in the

sand. The impressions tallied. They were not quite like an ordinary boot. The boot print was about eighteen inches from the buried entrails. It might have been made by anyone going past the spot. There were other boot prints close to. but they were blurred. Mahuri, in evidence, stated he saw defendant from a distance of about two hundred yards. Defendant had the pig and put it in the fern, and then went along the bank of the stream to the railway. Witness took the pig and carried it along to the [ Mangapeehi railway station. He asked defendant why he had killed the pig and defendant said, because it was on the line. Witness informed Constable Mathew, v.-ho went to defendant and spoke about killing the pig. Defendant asked witness whether he had seen him in possession of the pig. Witness said he had seen defendant putting the pig in the fern. Constable Mathew and witness proceeded to where the entrails were buried and looked for the pig's ears. One of the ears was found in the creek. Afterwards defendant, the ganger, and Mr Gray came along. Defendant said he had passed that way. In cross-examination by Mr Gillies witness said he had been losing pigs and was suspicious. He saw defendant from his house which was about three hundred yards away. When he spoke to defendant near the railway station he talked in English. Was sure defendant admitted killing the pig. Witness 1 was excited. Pippen threatened to summons witness for riding on the line. To the Bench: The time he saw defendant was about one o'clock. Te Poaka deposed that he was with Mahuri when the latter spoke to defendant about killing the pig. Defendant, in reply to Mahuri, said he killed the pig because it was on the line. In cross-examination witness adhered to his statement. This closed the case for the prosecution, and Mr Gillies, for the defendant, submitted that there was hardly a case to answer, but as there was a certain amount of suspicion, on account of defendant having been at the place where the pig was discovered, he would call evidence to clear up defendant's actions. Peter Pippen, the defendant, stated in evidence that on the day in question he was instructed byithat ganger to look round and find out the cause of the bad smell in the vicinity, and also to burn some rubbish. In walking round he saw the dead pig which had been killed by the train. He also burned some rubbish and returned to work on the line. ■ Shortly afterwards Mahuri rode up and said " what for you kill my pig." Witness said he would give Mahuri a summons for riding on the line. Mahuri said " All right I give you a summons." .Subsequently Constable Mathew came to him and he accompanied him to the place where a pig had been recently killed. The ganger and Mr Gray also went. The constable said that the man who made the footprint was the man who killed the pig. Witness admitted having passed the place where the entrails were buried. Had seen no pig. Was away from the railway four or five minutes.

In cross-examination witness stated h e had seen nobody about. When looking round he walked at an ordinary pace. Could not account for the pig being killed, and did not see anybody in the vicinity. During lunch hour, between twelve and one o'clock, the workmen remained together on the railway. Frederick Griffin, ganger on the line, corroborated defendant's evidence as to what took place on the day in question. Defendant did not have a pea rifle on the jigger that day. Cross-examined by Constable Mathew witness stated he saw the footmark. It was not his. There were other footmarks close to, but they were blurred.

A railway workman named Hopkinson corroborated defendant's evidence as to defendant's actions, and the time defendant was absent when looking round. John Gray, postmaster at Mangapeehi, deposed to going to the place where the freshly killed pig was discovered. Witness asked defendant to take off his boot in order to compare it with the footmark on the sand. Witness concluded the mark was made by Pippen, but thought the mark was made by him when walkingpast. Did not think the mark could have been made by the man who buried the offal. Saw indefinite marks before and behind the distinct mark, as if they had been made by someone walking past' Harry Donkin stated he was present when Mahuri charged defendant with killing the pig. Did not hear defendant admit killing the pig. Did not take much notice ito the talk as he was busy working. This closed the case for the defence and after considering the evidence His Worship dismissed the ease.