SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 5091, 18 July 1877, Page 3

SUPREME COURT.

CRIMINAL SITTINGS Tuesday, July 17.

(Before his Honor the Chief Justice and a special jury.) The Court sat at 10 o’clock. COLE V. M'KIRDY.

Mr. Barton for plaintiff ; Mr. Gordon Allan and Mr. Hart for defendant.

The hearing of this case was resumed from the previous day. Mr. McKirdy was further examined as to certain firewood and other things which plaintiff alleged had been unlawfully converted, and witness stated that the firewood was purchased by his agent for use at the kiln. He altogether denied that he had wrongfully converted to his own use any property of plaintiff, or that he was indebted to him in any way. A number of receipts, bills, invoices, and other doenmeats relating to the purchase by Mr. McKirdy of bricks from various parties and used on the works were produced in order that the witness might refresh his memory by reference to them, and after some discussion they were admitted, and Mr. McKirdy was examined and cross-examined at some length respecting the several items. Mr. Magiuity, of the Telegraph Office, produced certain telegrams sent by Mr. McKirdy to the Upper Hutt relative to the works on his contract on the line near Pakuratahi.

Mr. Price, Mr. McKirdy’s agent, was next examined in support of the defendant’s case. The witness deposed to making arrangements on behalf of his principal with Mr. Cole for the supply of 90,000 bricks. They were all to he delivered within six months from the time the contract was made, but plaintiff altogether failed to carry out the contract. Witness was not aware at the time Cole took the contract that he was a man without means. He had been a ganger on the works, and said he was prepared to put on forty men within a fortnight after he got the job, which impressed witness with the idea that he was a ir an able to carry out the contract, but this expectation was not realised. Of the bricks he made, a number were not properly burned, and he failed to supply the quantities required. Some of the bricks which in witness’s opinion were good bricks were not passed by the Government inspector. As plaintiff failed to carry out his original agreement, witness suggested that afresh one should be made made; but plaintiff objected, saying he did not see the necessity for it, but would take two or three days to consider the matter. Ultimately he consented to a fresh agreement. Plaintiff failed to supply the amount of bricks required from time to time to carry on the works, which were being delayed. In consequence, bricks had to be procured from the Hutt, from town, and other places—wherever they could be obtained—in order that the work might not be brought to a standstill. Including everything, about 80,000 bricks were passed by the inspectors, but this was subject to inspection by the engineer, so as to give witness an idea of the value of the work, so as to make payments. The final examinations are made by the engineer when the bricks are ready to be put into the works. Witness was not obliged to pay anything to Mr. Cole for his bricks until they had been so finally passed ; but as Mr. Cole would in such case have had to remain for some months without his money, witness used to make advances at Mr. Cole’s request, on the general examination by the inspector ; but this was all subject to the final examination by the Government engineer, and such bricks as were not passed by that officer would be allowed for by Mr. Cole in the general account. When witness left Mr. McKirdy’s service in May, 1876, 19,000 bricks had been finally passed by the engineer. Witness produced receipts for various payments made to Mr, Cole on account of bricks supplied. In reply to Mr. Barton, witness said he was not now in Mr. McKirdy’s employ. Would not swear that he had not said to Cole that Mr. McKirdy had treated him (witness) badly. Witness had not been settled up with by Mr. McKirdy, but witness had not as yet made application for payment. George Winks, resident engineer on the Wellington aud Masterton railway, deposed that it was ids duty to pass the bricks supplied by Mr. Cole for use on the portion of the line before referred to. The bricks were examined before they were put into the works, having previously been examined by an inspector, who is supposed to see that no soft bricks arc used. The bricks are tested by taking up two of them and ringing them against each other. Sometimes tho bricks were roughly passed as they came out of the kiln (to oblige Mr. McKirdy and enable Mr. Cole to obtain advances) ; but before they were used on the works they were again examined before being handed over to the bricklayers. It was Mr. Sutherland who passed the bricks, as a rule, but if witness happened to be on the spot and saw any inferior bricks ho prevented their bein" used. The inspector was always on the spot, and witness, who had other duties to attend to, left it to him. Witness never complained to Cole about the quality of his bricks ; but he spoke to McKirdy about it. [This question was objected to and not pressed.] Witness spoke to McKirdy about the delay which occurred in getting on with the works. Witness could not say what number of brides were passed.

By Mr. Barton : Sutherland passed the bricks, and witness practically did not interfere with him in tho matter. There was one inspector and a sub-inspector for seven miles of the line. Every single brick was not examined. It was the duty of the inspector to examine tho bricks as accurately as possible

and also to see carefully as to the concrete work. It was important to both parties that an exact tally of the bricks should be kept. Out of the 90,000 bricks witness cannot say what quantity was rejected. Witness has not been “ refreshing his memory ” in a corner outside the ' court with Mr. McKirdy. Had been talking with him, but not about this evidence.

George Langton stated that he is clerk to Mr. McKirdy and knows the plaintiff,, Mr. Cole. Remembers seeing him at Mr. McKirdy’s office in November last. He (Cole) then said he was not a man of capital, and wanted Mr. McKirdy to help him to go on with the brickmaking, but they could not then agree as to price. Subsequently Mr. McKirdy agreed to pay Cole £l2O in full of all demands up to date, and for purchase of a kiln, pugmill, &c.; and from that amount a sum of £2O due by Cole to Mr. Cruickshank was to be deducted, and also a sura owing to Green. The matter was not settled then; but Cole said he would come next day and settle. John Richards, carpenter, Featherston,_ deposed to Cruickshank, who was burning bricks for Cole, getting paid £2O by McKirdy, and also an order for the like amount.

P. Scully was called, but did not answer to his name. This concluded the evidence.

After some conversation as to whether the case should go on or be adjourned until next day (it being now half-past nine o’clock), the learned counsel on either side said they were willing to forego their addresses and let his Honor sum up. His Honor said he thought this was a case in which he should like to hear counsel’s views.

Mr. Allan said he felt physically unable to address the jury properly, but would do so in obedience to the Court.

Mr. Allan then addressed the Court and ury for the defence. Mr. Barton then delivered his address on the part of the plaintiff. His Honor then summed up, and the jury, at twenty minutes to 2 o’clock a.m. retired to consider their verdict.

At five minutes past 3 o’clock the jury relumed into court, and delivered a verdict on :he issues as follows:

1. Is the defendant indebted to the plaintiff in any sum beyond £6Bl 10s.?—Yes. 2. Has the defendant paid to the plaintiff the sum of £764 10s. 6d., or of any, and if so what part thereof?—Yes. He has paid £6Bl 10s. 3. Did the plaintiff and defendant enter into the agreement mentioned in the second count of the declaration?—(lt was admitted that they did.) 4. Did the plaintiff supply to the defendant as many of the 90,000 bricks at the places mentioned in the said agreement as were required by the defendant ?—No. 5. Did the defendant waive further performance by the plaintiff of the said agreement as to the supply of the residue of the said bricks within six months ?—Yes.

6. Did the defendant require 800,000 additional bricks for the contract mentioned in the said agreement ?—No. 7. Did the defendant prevent the plaintiff from completing his part of the said agreement as in the second count alleged ?—No. 8. Bid the Government Engineer refuse to accept and pass the bricks made under the said agreement, and did the defendant by reason thereof refuse to accept and pay for the same ?—ln part. 9. Did the plaintiff and defendant agree that the contract mentioned in the second count should be rescinded, and that the contract mentioned in the third count of the declaration should be substituted therefor ?—No.

10. Did the plaintiff and defendant enter into the agreement mentioned in the third count of the declaration?—lt was admitted that they did. 11. Did the defendant hinder and delay the plaintiff from completing his part of the said agreement as in the third count alleged ?—No. 12. Did the Government Engineer refuse to accept and pass the bricks made under the agreement specified in the third count of the declaration, and did the plaintiff by reason thereof refuse to accept and pay for the same? —ln part. 13. Did the defendant wrongfully convert to his own use the goods specified in the fourth count of the declaration ?—Yes.

14. Did the plaintiff agree to sell to the defendent the goods specified in the fourth count, excepting the firewood and cart, for the price of £l2O, as in the ninth plea alleged ?—Bargain not concluded. 15. Did the defendant take possession of the said goods by the authority aud with the consent of the plaintiff ?—No. 16. Did the defendant, at plaintiff’s request, pay to James Cruickshank the sum of £2O ss. 3d., aud offer to pay the sum of £23 to one Green, and the balance to the plaintiff; and did the plaintiff refuse the same as in the ninth plea alleged ? —Paid Cruickshank at the request of plaintiff ; did not pay Green. 17. Is the plaintiff entitled to any, and, if any, what damages under the second, third, and fourth counts respectively?—Yes, £lO5 14s. 9d. on the first count, aud 150 on the fourth count.

Verdict for plaintiff for £255 14s. 9d. on first and fourth counts, and for defendant on the others.