RESIDENT MAGISTRATE'S COURT.

Nelson Evening Mail, Volume II, Issue 43, 21 February 1867, Page 2

RESIDENT MAGISTRATE'S COURT.

[Before J. Poynter, Esq., R.M.] February 20th, 1867. Askew v. M 'Neil.— Claim £93 2s. 3d., goods sold and delivered at the Buller. Judgment for plaintiff .for the amount claimed. Peat and Thornton v. Cator. — Claim £9 Os. 6d. for goods sold and delivered. Judgment for plaintiff for amount. I. and Gr. Walker v. T. Andrews. — Claim d£4 Is. 9d. Case postponed till 27th February. . Mr. Inspector Shallcrass obtained judgments against 3s. K. Turner, H. Rowe, J. Steinbourgh, and J. W. Hall, for the amounts due by them for the Education Rate. E. DAVIDSON V. M. M. MORET. Mr. Pitt for plaintiff, Mr. Keon for defendant. This was a claim for £100 alleged to be due in this way. The defendant agreed to purchase 430 sheep at 19s. per head. The sheep were to be paid for as they were fetched away ; they were to be kept a month free of charge ; and if plaintiff killed any, he was to replace them by sheep of equal quality. Defendant took 200 of the sheep and paid for them, but neglected to fetch the remainder, although advised that if he did not by a certain date they would be sold at his risk. Plaintiff then sold the sheep by auction, and they fetched only 10s. per head. He now sued for the difference, abandoning the amount in excess of £100 to bring the case within the jurisdiction of the Court. Evidence was taken as follows : — Edmund Davidson : On the Ist of December, 1866, I wrote the letter now produced, offering to sell 436 sheep at 1 9s. per head, to keep them free of charge, and if I killed any, to make them up with sheep of equal quality. Defendant accepted the offer in the letter produced. Payment was to be made as the sheep were taken away. On the 3rd December defendant took 60 away, and paid for them. He took another lot of 40 about three weeks after, and paid for them before they arrived in town. On the 16th of January he took 100, and paid for them. I asked him to take the remaining 236 on the 14th January, as I wanted the room. He said he had no place for them. He agreed with a man named Green to keep them, to whom my man delivered 220 on the Tuesday following. The day before Green gave me a receipt for them. I told him defendant had promised to pay for them, and till he had paid the sheep were mine. I saw Green again, and gave him an order on my man to get the balance to make up the number to 236. After this Green gave me a receipt for that number. On the 16th January I asked defendant for payment for the sheep. He said he could not pay then and made various promises. He said I could sell the sheep if I liked, or take them back. I instructed my solicitor to write to him and from what he said I requested Mr. Lockhart to sell the sheep. They were sold by auction: I received a letter from Mr. Keon dated 25th January, saying defendant would be prepared to take delivery of the 236 sheep on the 31st January. I arrived in Nelson from Collingwood on the 2nd February. The loss on the sheep at the sale was £122, and I abandon the £22 to come within the jurisdiction of the Court. Defendant always picked out the best of the sheep. The sheep I sold were marked ; at least, I instructed my man to brand them before witnesses, with the same brand defendant had for the others he had purchased. To Mr. Keon : Defendant agreed to the price mentioned. He paid for the sheep he took delivery' of. I sold him the whole 436. He paid me £95 for the 100 he took, as per receipt produced. He agreed the sheep should be sent to Green. I did not object to deliver the sheep, but expected to be paid for them. To the Court: The whole 436 sheep were not shown to defendant at first, the number was made up. The sheep sent to Green were not marked in defendant's name. To Mr. Keon : I cannot swear the sheep were branded, but I instructed my man to

brand them. I instructed Mr. Pitt to write the letter now produced, dated January 16, to apply for the balance due and stating the sheep would be sold if not removed. I believe the sheep were advertised for sale. I instructed Mr. Pitt to act according to the letter. I had not parted with possession of the sheep. The letter said the sheep would be sold a week after date. I was not present at the auction. The sheep fetched lOs. I was not aware that defendant was out of town. I had waited four or five weeks, and was aware time was given to defendant to the 23rd January. I put up another lot which fetched 17s. 6d. or 17s. 9d. Defendant made his own bargiin when he bought the sheep. I left them on the farm after they were bought. I was exclusive owner of the sheep. Herbert Pitt: I delivered the letter now produced to defendant on the 16th January, and asked him if he would com* ply with the terms contained in it. He said we could do what we liked with the sheep. I then instructed Mr. Lockhart to sell them.

N. T. Lockhart: At the request of Mr. H. Pitt, in January last, I sold, on the 24th of that month, 236 sheep. On refering to the advertisement, I see it was on the 23rd. The 236 sheep sold at 10s. each. The nett proceeds was £108 ss. I sold them in the country thinking they would fetch a better price than in town. The sheep were not claimed. Green was at the sale, but he gave me no notice.

To Mr. Keon . Several butchers were at the auction. I think the average weight was from 40 to oOlbs. I think they brought their full value. I heard Green say the sheep belonged to defendant. I was instructed to insert the advertisement. It did not specify the sheep were to be sold at the risk of defendant. Green did not oppose my selling the sheep.

Mr. Keon said the defence was the sheep were sold during defendant's absence on the West Coast, and without his knowledge or consent, a circumstance that had put him to great inconvenience. He did not object to take the sheep and only wanted time.

M. M. Morey said : I received a letter from plaintiff, on the Ist December offering me the sheep at 19s. per head. I purchased them on that day, although nothing was said about payment then. About a fortnight after I took 39 away. The next lot I took was 100, on the 16th January. I paid for them after delivery in town. Plaintiff said he wanted me to pay for the whole lot. • I said I would pay for 100 in a fortnight, and the balance in a month, on receiving my money which was out on the West Coast. I considered that he consented to this. He objected to the sheep remaining, and I agreed with Green to keep them till they improved in condition. I agreed with him on the 14th January, agreeing to pay him 16s. per 100 per week. Green took delivery of them. I never objected to take them. I received Mr. Pitt's letter on the wharf as I was leaving for Hokitika, the day I took the 100 sheep. I saw no necessity for replying to the letter. I was away from seven to ten days at the West Coast, and returned the day after the sheep were sold. When on the West Coast, I sold the sheep for the same price I gave for them to Louis Bate. Mr Everett was the first person who told me the sheep were sold, and I was much surprised. I regarded the sheep as my own property. To Mr. Pitt : The reason Mr. Davidson objected to the sheep remaining was that he had no feed for them. I did not tell plaintiff or Mr. H. Pitt he could do as he liked with the sheep.

To Mr. Keon : Prices fluctuate on the West Coast.

To Mr. Pitt : I did not pick out the largest, but those that were most fit to take ; they were my own.

W. Green : I am a farmer. On the 14th of January last, I saw the defendant, who arranged with me for the keeping of 236 sheep. I took 220 from plaintiff _ man first and placed them in my paddock. I took the balance next day. I understood I received the sheep on defendant's account. There were no conditions as tothe delivery of the sheep to defendant or anyone. The receipt was not read to me when I received the 16 sheep, and I was not told what I was signing. The receipt for 220 I gave back to the plaintiff. It was changed, because there were 16 more v to add. Defendant was to pay me 16s. * per 100 per week for the sheep. Plain-] v tiff said defendant was to pay for them&--. After the 16th plaintiff s man came for titm

sheep, saying they were to be sold. I gave the sheep to him because I did not know I should do right in keeping them. The man put the mark O on them when he took them away. I was at the auction. They might have fetched more than they did. I do not know it was not a fair price. Neither plaintiff nor defendant was present. I knew the latter was at the West Coast.

To Mr. Pitt : When the receipt was given the plaintiff did not tell me the sheep belonged to defendant when he paid for them. Plaintiff did not read the receipt I signed. I have kept sheep for defendant before. He has not asked me to make the best of the case I can. I did not tell plaintiff so. I did not say defendant promised me more sheep to keep, as an inducement to make the best of this case. I will not swear that plaintiff said the sheep were not defendant's, until they were paid for.

L. W. Bate: I was invited by defendant to see some sheep on the 13th Jaunary last. I purchased 336 at 19s. per head. I took 100 to the West Coast, and was to take another 100 in a fortnight, and the balanee in a month. I heard the plaintiff say he could not keep the sheep any longer, and suggested he should arrange with Green to keep them. I could not say if he promised to give delivery as defendant's sheep on returning. I heard the sheep were sold. I have since bought the sheep for 14s. 6d. that were sold at the auction. I was disappointed that the sheep were sold having engaged a boat to take them. To Mr. Pitt: I agreed in Nelson, for tbe purchase of 336 sheep at 19s. per head. Defendant offered me the sheep at the same price on the West Coast. I had money enough and always have to purchase. I paid for what I took away. Mr. Davidson recalled: When Green signed the receipt which has been produced, I read it to him. I understood the defendant had sold the sheep to the last witness as well as some cattle which were had from me. Mr. Keon submitted that it was a case for a nonsuit, and quoted several authorities bearing on the subject. Mr. Pitt having replied, the Magistrate nonsuited the plaiutiff.