Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 136, 19 September 1868, Page 4

Resident Magistrate's Court.

BLENHEIM Monday, Sept. 14, 1868. [Before S. L. Muller, Esq., R.M.] THOMPSON V. SAXON AND PIKE. Mr, Tuiton. for plaintiff, said the amount had been paid into Court at Nelson, by a telegram received on Saturday evening, which notice was insufficient. The Bench ruled that the notice was insufficient, and granted a judgment for the sum claimed (£3 3s. 6d.), and £2 19s. costs. LAWRENCE V. RAYMOND AND BARTLETT. Mr. Pitt for defendants, requested that the witnesses might be ordered out of Court. Mr. Nelson requested that only one of the defend ints should be allowed to be present, and hear the evidence of the other. Mr. Pitt thought they had both the right to be present, as much so as himself —a right which he should insist upon.

Mr. Nelson said the case had been before the Court on a former occasion, when judgment was given in favour of defendants. A portion of that claim had been paid into Court, with the exception of the sand, which amounted to £4 10s.

Mr. Pitt said that the plaintiff should first elect to take or refuse the amount paid into Court.

The Tench said the present case was for the sand only. Phillip Lawrence, storekeeper and auctioneer, knew defendants. In the plaint was a sum of £4 10s. for sand. Received an order from one of the defendants in ray store; believe both were together. Had spoken to them both about the sand between ordering and receiving it. They spoke about the sand before I went to Wellington, before they ordered it. It was ordered in February; don’t know whether I had been to Wellington just before, would not say. When they first ordered the sand, I gave Putt the order, who did not bring it. When the Alarm came in, the defendants asked me if it had come. Told them not, but it would be sure to come by the next trip of the Falcon, Saw Cracknell, told him to bring me a ton of sand ; he said he would. Don’t know whether I told him to bring dressed or undressed ; they did not tell me which, but said it was for blowing on houses. Don’t think I told Cracknell who it was for; had charged for dressed sand in my bill. Told him I would give him the sacks, and he sent a man, to whom I gave six or seven; these are what I charged for, and have been paid. Defendants felt annoyed that it did not come by the Alarm, booauoc they wanted it, for two buildings— Dodson’s and Wemyss’s. They did not countermand the order, but would take it by the Falcon. I get goods by giving ordersto Captain Butt, but not by the Falcon, When the Falcon came in, I might have gone down; heard the sand had arrived; would not say by whom I heard it; might have been by Cracknell. Told the defendants the sand had arrived in my store, and they could have it; am not positive which it was. They admitted they got it when I sent my bill in ; they said they would pay me when they got paid ; they did not dispute the sand; they generally have an account for freight. I got no invoice, because I looked to Cracknell as my agent to carry out my orders. If delivered to anyone else, would have held him responsible for it. Think I told him it was for painters; asked him about it after I heard it had been delivered. One or other of the defendants said they had got it; have had no account from Cracknell. Consider lam yet indebted to the agent forfreight. By Mr. Pitt The order was first given in February sometime I think. The sand came in the early part of February ; think it was the 7th; I know, because I booked it before it came. Would not swear that it is not here now ; will swear that this particular sand arrived in Blenheim, from what I have heard from others. If Cracknell and defendants told me, I would swear it. The conversation took place in my store ; only Mrs: Lawrence was present; might have told one of them ; don’t know why Bartlett came and told me; did hot know till they told me the sand had arrived: If I swore* on a former occasion that I told Bartlett, it would be correct—both statements would be true. I might have said on a former occasion that 1 first told Bartlfett. The first time L spoke to Cracknell waS either on the bridge or opposite my store; ‘ don’t know whether- it was • morning- - or afternoon* but in-the daytime*' 7 The chill i prodhced l is not ‘ in my hand writing'; will - acknowledge it, ' but'nottilLL look over if; it is correct: ■ The iCouft ruled that in the: account l the n item: of * £4 -lOs. for sandi was - on January ]2sth,but would'deal with the case omits merits. Mr. Pitt: Can you explain why the sand should-be charged on January 25th; it was delivered in February. , [A slight altercation between the learned gentlemen-called forth the notice of -the Bench, whereupon an apology was tendered

and accepted, and the examination resumed.] By Mr, Pitt: It ought to have been put in February. I know it of my own knowledge, because Cracknell told me. My customers go and take delivery of goods ordered; have not taken delivery of the sand, nor paid the freight. Told Cracknell to bring the sand for painters’ use ; told him I would give him sacks; gave him the seven sacks. To the best of my knowledge there was no further conversation ; they took the sand, and know it. I have an open account with Dodson. Will not answer whether I have an open account with him or not. Have one for freight, as agent of the Falcon.

Will not answer how I know he is agent; I know he is agent; don’t know how I know. I might have been in Wellington on November 16th; have been once or twice ) don’t know when I was last there. William Cracicnell deposed : lam master mariner', and captain of the ketch Falcon. Know the plaintiff and defendants in this case. Eemember Lawrence asking me to fetch a ton of sand over; met him by his own place; did not understand what it was for; was to procure it, and bring it over in bags. Lawrence said he would give me some bags to put it in. Some of them would hold sand ; some were my own bags. On arriving in Blenheim, Lawrence came down to me to the boat, and asked me if I had brought the sand; it had not then been landed; am generally up before the boat, and might have been then. Do not know about the sand from anybody but Lawrence. Eaymond asked me if 1 had brought any sand after I had spoken to Lawrence. Told him 1 had brought a ton for Lawrence. Eaymond said he was very glad 1 had brought the sand, as he wanted it for some house he was doing. When I fetch goods for any party I tell them first, and then land them on the wharf. They do not sign for them, but come and take them away. Lawrence asked me to get the sand for him in Wellington, and I undertook to do so, if weather permitted. He came down and saw the sand, and I told him about the state of the bags, and the price £2 10s. for sand, and 30s. freight. He did not pay me —sometimes they don’t pay me ; when they don’t, I leave it in the book with Mr. Dodson, if I lay out any money he pays me, and collects it. This was entered in my cash-book; the freight was charged to Lawrence ; it was a cash transaction; did not see who removed the sand. Saw Eaymond on the wharf with Lawrence when ! showed the sand to him.

J3y Mr. Pitt:-All transactions brought by me are not on account of the ship ; t he agent or owner has nothing to do with anything but the freight; if they don’t pay me, the agent collects it. Don’t recollect having a communication with Dodson, saying there was a ton of sand for the painters; might have said it was for Lawrence. Deceived Ills, for the sand from Mr. Dodson; am not aware that 1 said anything about Lawrence. Have no claim against the sand now; brought it on freight, and not on order; it was charged to Lawrence 30s. What I pay away this way, I get from the owners; this was not a private transaction. "When Lawrence ordered the sand nothing was said about the price ; he was satisfied when I put it on the wharf; paid 10s. for obtaining the sand. There is no agreement between me and the owners as to not taking any commission on orders ; if anyone gives me any, 1 take it. It was merely a request; it was not an order; would not have been liable if I had not brought it. Henry Pritchard, carter, remembered last February. Know defendant got orders from Bartlett to look out for some sand by the Alarm. Did not to my knowledge come by it. They expected some; Raymond asked me, as he was coming up from the wnarf, I think. I never wait, for oxders; what is branded I take up, and wait for orders when unbranded; don’t know who ordered it; Dodson said nothing to , me about it. Met Raymond opposite Robinson Bros.; he said I want you to cart some sand up to my shop, and 1 did so. William Douslin, architect, and J.P., deposed : Am acquainted with defendants, who wex-e contractors for wpi’k under me at the beginning of the year, about February ; remember a slight delay; had a conversation with Raymond—botlx being present —at Dodson’s house. He said he expected the sand by the next vessel, as he had ordex:ed it from Lawrence. There had been a slight delay with Mr. Wemyss house for the sand. Did not hear them say they had expected it by the Alarm, but they expected it by the next vessel. It. came in about a fortnight after, . By Mr. Pitt: Could not say whether it was previous to February. Do not know ■vvhere the sand came from, of my own knowledge, I can’t say now that what 'they.Jtold me was a fact. James Balfour Wemyss, Commissioner of Grown Lands, and J:P., deposed: Know defendants, who were employed at my house from September to February last. There

might be a delay in detail, but not on the whole work. There was a delay in sanding the front. They told me they had ordered it from Lawrence, but it had not come. Eemember Eaymond particularly telling me so. Do not remember how long it was before it came. They left the work to see if it had come by the Alarm, on two occasions.

By Mr. Pitt: Do not know how it came, but it did come from Wellington,

William Douslin, recalled by Mr. Nelson : As an architect, know what a ton of dressed sand should be worth in Blenheim. It required washing and sieving, which would make it worth 305., without freight; with all the trouble, and without freight or bags, £2. By Mr. Pitt: For undressed sand it was simply worth the trouble of getting. This closed the case for the plaintiff.

Mr. Pitt said he would be able to prove that on the evidence given the defendants were entitled to a verdict more so than on the previous occasion. The way in which plaintiff gave his evidence was anything but satisfactory. It was optionable for either plaintiff or defendant to be off a bargain until a price is stated and delivery taken, and quoted‘‘Addison on Contracts” in proof. Before plaintiff could sue he must show that the goods were his. There was no legal obligation on Cracknell to give the sand to Lawrence; nor was there any evidence to show that he took delivery. He was entitled to a nonsuit on the evidence.

The Court held that Mr. Pitt’s argument would hold good, were it above £lO value, under the (Statute of Frauds. He held also that there had been delivery.

John Raymond, painter, sworn, said he was a partner with Bartlett in January last, and am still. Had occasion for sand about that time. Hover gave the plaintiff (Lawrence) an order to bring sand from Wellington. Had a conversation with him about it as to finding the price out, or to that effect, and the kind of sand used in Wellington. This was in November, and was all that transpired between him and me. Did not give any direct order to Dodson ; I received the sand at the ship. I have known the Captain this three years, but did not see him when I took the sand. Had an account at that time with Mr. Dodson. The account (produced) was furnished me by Mr. Dodson The item £2 is the sand referred to. To the best of my recollection, I asked one of the men at the ship if that was the sand for the painters. It was in February, not January. By Mr. Nelson; Did not order the sand through Dodson. Did not see him before I took it from the wharf, so he could not tell me it had come; I told him. Did not know it came for me ; did not ask anyone’s leave, but took the sand. Asked one of the men if it was for the painters, and he said yes. Did not expect sand by the Falcon. Had not ordered any sand by any one else. I asked if it was for the painters, being a sea beach sand, because 1 wanted it. Thought it was come for Norgrove’s. Did not tell you that last time because you did not ask me. Did not expect any by the Alarm. Did not tell him I expected sand by the Alarm that 1 recollect; might have told him. Recollect saying a minute ago that I did not expect sand by the Alarm. N orgrove told me he expected sand; I might have taken it; it would not be stealing. Could not believe him, if Pritchard said I expected it by the Alarm. There was no possibility that I saw Cracknell, and that he told me the sand for Lawrence was come; it might be the mate. Could not swear he belonged to the vessel. Did not go down with Lawrence. About two hours afterwards got possession of 8 bags, and saw Dodson and told him. The sand might be for anyone else. Norgroves would have told me 24 hours afterwards if it was their’s. Do not know when I got the bill; it was when we had a final settlement, but we got a price within 48 hours, what he was going to charge us for it. He said the commission was so small he would make us a present of it. He charged IQs. for the sand, and 30s. for freight. Do not know if Mr. Dodson imports sand. Do not recollect seeing Cracknell, although knowing him 3 years. Did not thank Dodson; do not thank people for small things. Cannot say to a month when I finished Dodson’s contract; might have been June or July. Did not expect sand by the Alarm or Falcon. Forgot I had made no provision for sanding. I might have told an untruth to Mr. Wemyss and Douslin, when they spoke of the delay in finishing; it was to be sanded. It was not a piece of business to tell untruths ; if I had told them it would be untrue. A painter’s conscience is like a lawyer’s, it will stand stretching. Do not recollect speaking to Mr. Wemyss about it; did not hear his evidence'; heard Douslin's evidence, but do; not recollect the event. Would be very foolish to swear- Mr. Wemyss had sworn falsely. Do, not recollect the date of the account from Lawrence; he asked my partner and me once. Had seen

the account previously, and objected to the sand and whiting. It was in the street, and no one else was present. .Never asked Cracknell about sand ; my partner asked him about sand. Ido the hard-working department, telling the fibs. Saw some brands on the bags, “F ” for Falcon. Lawrence never asked me for any bags. Went down with Lawrence some months after to see Cracknel! about this sand ; can’t tell what took place ; took no interest in it. Cracknell said something about the bags not being fit to hold a bale of wire. To the best of my belief all the talk was about the bags, and not the sand. Mrs. Lawrence

never asked me about the sand ; Lawrence never brought me any word about it. To the best of my belief Lawrence did not give the information. Lid not give any order for the sand to anyone. Have no recollection that Cracknell told me (or saw me) that the sand had come. Lid not go down with Lawrence to see the sand, am positive. By Air. Pitt: About two hours after receiving delivery of the sand met Lodson, and told him I had got the sand. Was not waiting for it, but wanted it to go on with it. It was a part of our contract with Lodson that he should find the sand.

By Mr. Nelson : Neither Mr. Wemyss or Mr. Dodson complained to my recollection. It was in the contract that Dodson should supply the sand; had not applied to him to get the sand. James Bartlett, painter, and partner with last witness, deposed: About January last was engaged with work for Mr. Dodson, and required sand to finish it. Never gave Lawrence any order to procure sand. Written particulars of the work to be done were supplied. I produce a copy of them. They state that Mr. Dodson should provide some of the materials, including sand. Was not present when my partner told Dodson he had got the sand; he told me. Was not present when lie settled with Dodson. We charged him with the sand used for his house, and used the remainder for Mr. Wemyss’s. The sand got by the Falcon finished the two houses. A portion was carted to Wemyss’, and the remainder to Dodson’s. Neither Wemyss or Douslin spoke to me about sanding; nor to Raymond in my presence. Douslin spoke of work for which sand would be required. He never spoke to him in my hearing. It is not possible he could have said he expected the sand in my presence without my hearing. Mr. Wemyss was not to provide sand. Did not ask Raymond where he got the sand, he told me himself. Knew that Norgrove wanted sand. Did not tell Pritchard other than that I should want him to cart some sand. Did not refresh my memory with the paper to-day, nor make it up with Raymond what to say. Tell little white fibs in business. Lawrence called me in and told me about the charge for the sand. I objected to the whiting and the bags. It was by a mistake of mine that the bags were paid for. Had no conversation with Crackuell about it.

On. Mr. Dodson being called for the defence, Mr. Nelson objected to his evidence being taken, as he had been in Court during a portion of the time. Mr, Pitt argued that this could not be sustained, as at the most it was only a contempt ol Court. The Bench held that there was an arrangement between the Bar and the Court that witnesses should not be present, and it was the duty of the lawyers to see that the order was carried out. Mr. Dodson could not be heard. Mr. Dodson said this was the first time he was aware he had to find the sand for his house.

Mr. Collie, reporter for the Expkess, was then called for the purpose of proving what had been deposed to by Mr. Dodson on a foimer hearing, but the Bench on interrogation found he also had been in Court a part of the time, and consequently declined to hear him. Mr. Pitt then addressed the Court on the point, and quoted largely from Taylor on Evidence, to show his view was the correct one.

Mr. Nelson urged that the penalty for contempt should fall on the parties to the case, by the rejection of the evidence. The Bench thought the authority was in favour of the view held by Mr. Pitt, but declined to hear the evidence.

Mr. Pitt asked leave to appeal, on the ground that the evidence was admissible. The Bench refused.

Mr. Pitt said that notwithstanding the disadvantage he was placed under, yet he could show that his clients had a good case, and he proceeded to argue upon the evidence. He contended that it was absolutely necessary that it should be shown that the goods had been delivered, and that the sand was the property of plaintiff. Mr. Nelson briefly replied. The Bench said that without going into the question of contract; it appeared that the ‘ plaintiffs ordered a ton of sand, and

sent bags for it; the Captain used them, and on coming up the river told plaintiff and Raymond, who said he Was glad. He afterwards delivered the sand in the usual way to the plaintiff, by placing it on the wharf. The only difficulty was the price, which appeared to be for dressed sand- The sand belonged to plaintiff, and he had a right to a profit on it, for which he would allow 10s., as it was understood that as defendants had paid for sand and freight, therefore plaintiff would not be asked for it. Mr. Pitt asked leave to appeal on a point of law, that there had not been a delivery. The Court declined, as the delivery was a matter of fact. Defendants to pay 10s. for profit, and £9 14s. costs. TUESDAY, SEPTEMBER 15th, 1868. [Before S. L. Muller, Esq., E.M.] Richard Darby was charged with being drunk and incapable of taking care of himself, in front of the Court House, on the previous day. As the evidence showed that it was three or four years since he put in a former appearance, he'was cautioned, and fined 55., with Is. 6d. costs, or to be imprisoned 24 hours. E. THOMPSON V JEFFREYS. Mr. Turton appeared for plaintiff. The Bench said a letter had been received from defendant acknowledging the debt, and stating that it would be paid by Mr. Fox. Robert Thompson, who formerly kept the Waihopai Hojxff, said the goods charged for TuuTbfe'euffilfd by the deftuiant, but that no portion of the amount had been paid. Judgment for plaintiff for £2 15s. 6d., and £2 2s. costs. EARL V. TROLOVE.^ Mr. jSelsotrTor the defendant, said this was a claim for a saddle lent by the plaintiff, and retained by defendant, but who had not received it from the messenger. He was not in a position to go on with the case at present, and therefore applied for an adjournment until October i2th, which was granted. O’SULLIVAN V. PHILIPS. . Mr. Nelson for defendant, stated that this case was settled. 0 ? SULLIVAN V. STRATFORD. An action to recover £4 2s. 6d. for refreshments, &c. John O’Sujbiyau, contractor, formerly keeping'tlie Half-way House, deposed that he supp 1 icd' ‘the“gb'ollY'cha'fged for, part being refreshments, and part in wood, as per agreement entered into between him and one Wright—s cords of wood being reckoned equivalent to 5 cwt. potatoes. This arrangement was transferred to plaintiff, with defendant’s approval. Plaintiff had split the wood three or four months ago, and plaintiff had supplied 2 cwt. 15 lbs. of the potatoes. By defendant: Considered the account just, and rendered it the week before last. Defendant said he got the summons before the bill; he had received some of the things, but had not been applied to for payment; he had been put to great inconvenience, and had lost two days in attending the Court. By the Bench : To the best of my recollection my brother took a number of accounts for collection, defendant’s among the rest. Edmund Stratford being placed in the witness-box, gave evidence to the effect that he received the summons before a demand was made, the account was incorrect; he would waive all the clerical errors, but he had not had any firewood. What he admitted was £1 75.; it was agreed that no charge be made for the bullocks paddocking. The wood had not been found for him, nor did he know where it was. By the plaintiff: You agreed about the paddock in your yard. You ordered potatoes from me before the agreement for the wood was made; can’t say all were; one sack was delivered previously; think I delivered three lots in all; have nothing to show for the order; never applied to you for the firewood; did not know it was in existence; there was no agreement as to where it wag to be split; you never asked me for potatoes in payment, but I meant to send you 5 cwt. in payment of the 275. due. The Bench struck off‘ the paddocking as doubtful. Defendant had a right to pay for the wood ; as to the bill not being delivered before the summons, should not allow costs to follow. Judgment for plaintiff for £2 10s. 6d., plaintiff to pay costs. ; v WARNER V. TRIPE. An action to recover £ls 19s. Case adjourned to Monday next, in consequence of a telegram received stating that a cheque had been sent. F: ADAMS V. MACDONALD. A claim of £5 95., which was admitted. Judgment for plaintiff for full amount, with £1 costs ; payments at £2 per xhonth.