RESIDENT MAGISTRATE’S COURT.—GISBORNE.

Poverty Bay Standard, Volume X, Issue 1154, 22 September 1882, Page 2

RESIDENT MAGISTRATE’S COURT.—GISBORNE.

[Before M. Price, Esq., R.M.] lunacy. Cornelius O’Brien was brought np charged with the above. Sergeant Bullen said that the accused was an old offender, and he had some doubts as to his sanity, but as he was of opinion that the man was suffering from a sun-stroke he wouls ask that the case be dismissed. His Worship said that under the circumstances he would dismiss the case, but if the accused ever came before him again for drunkenness, he would sentence him to three months’ impriionment with hard labor without the option of a fine. CIVIL CASES. Toohey v. Barker—Claim, £l4 for two bullocks sold and delivered. Mr M'Dougal appeared for plaintiff, and Mr Kenny for the defendant, Mr M‘Dougal, having opened the ease for the plaintiff, called, Andrew Toohey, the plaintiff, who stated : I am a settler and carrier, and live at Patutahi. I know the defendant ; I had a conversation with him about the beginning of August last at the Roseland Hotel j I met defendant there; he then enquired of me what was the price of the two bullocks then in the dray. I told him £4O ; he asked me if I had any more of them, and I said yes ; and that the price would be £l4. He had not seen them j when I told him the price would be £l4 the price was reasonable, When I told him he could leave the bullocks he had not seen then, and I told him he was a fool to buy them without seeing them. On the llth August defendant saw the bullocks, and he said they were strong and cheap enough } defendant asked me to stand them up tho yard and I did so ; defendant said that would do ami he was satisfied, and that I had better put them across the bridge, and that his boys would run them up. I nut the bullocks on to defendant's run j on the 4th Sep tom W I saw defendant at Wilson’s Hotel and he told me he had not seen the bullocks, but his boys had told him they were no good ami he wanted nie to give me a decent pair, I asked him for my cheque £l4 ami he refused ; he said I could leave the bullocks in his paddock as long as I liked. Cross-examined by Mr Kenny : I have a paddock, and it is stocked with cattle, and I call myself a settler. I buy cattle and sell them. I also breed cattle, * 1 have a little experience in bullock-driving, having had four years of it Defendant did offer me £4O for the two btillockei in the dray. De- ,

fendant asked me if I had another pair of poler bullocks for sale, and I said “Yes.” The bullocks were in the dray when defendant saw them. Defendant said the bullocks were small. I will not swear that defendant said “The bullocks will not suit me.” I told defendant the bullocks were strong and good, but I did not guarantee them. Defendant and his two sons were present. Defendant did not say ‘‘ I am leaving for Dunedin presently, ami if the bullocks suit me I will give you a cheque on my return. ” The day after defendant returned from Dunedin he told me that the bullocks were no good to him. He never asked me to take the bullocks back.

J. H. Aislabie called : I am a butcher in Gisborne. I know plaintiff and defendant. I was present at a conversation between them on the 2nd August at the .Sale Yards near the Roseland Hotel. Defendant asked plaintiff what he wanted for the two bullocks in the pole, and plaintiff said £4O. Defendant asked if he had any more for sale, and plaintiff replied “Yes,” and that the price would be £l4. Defendant asked if they were good ones, and plaintiff said he would have them in town shortly, and defendant could see them and judge for himself. Defendant said, “ If you recommend them I’ll take them,” and plaintiff replied “You can see them and judge for yourself, and you will be a fool if you pay for them without seeing them.” Cross-examined by Mr Kenny—Defendant might have said poler bullocks when he asked plaintiff about the bullocks ; I sold the bullocks to plaintiff for £l3 10a ; it was not a sham sale ; I got the money paid down, and I have not returned it. John M’Kenzie and Thomas Finucane were called to corroborate the previous tes timony. This closed the plaintiff’s case, Mr Kenny having opened the defendant’s case called, as his first witness, The defendant Barker—l am a sheep-fanner in Poverty Bay ; about the 2nd oi August last I was at the Roseland Sale-yards, and I saw plaintiff there ; I asked him if he had a good pair of polers he could sell me ; he said yes, and the price would be £l4 ; I said they were cheap enough if they were any good ; I said, “ What do you want for the pair in the dray now.” He said, “There was one in the aray hs would not take £4O for; I asked if I could go and see the other two he was speaking about: he said it was no use my going unlesshe was at home ; plaintiff said they were two good polers, and he could guarantee them ; on Friday, the llth of August, I met plaintiff at the bridge in Peelstreet ; I went and looked at them ; I asked plaintiff to move them on, but they would not «top, and they rushed the others all in a heap ; f plaintiff that the bullocks would not suit me; plaintiff said, “ I’ll guarantee them good working bullocks, and you can take my word for it.” I said, “ All right; if they are what you say, I'll pay for them on my return from Dunedin ; plaintiff said, “What is my part of the performance ?” I said, “Put the bullocks over the bridge.” On my return I saw plaintiff at the Albion Club Hotel, and told him the bullocks were no good, but I offered to k eep the bullocks until they were fat and allow him something for his trouble; he refused to take them back ; I only had the bullocks on trial, poler bullocks are more valuable than others ; the bullocks in question are no good to me. Crosß-examined by Mr M‘Dougall—l have had a good deal to do with cattle ; I buy and sell at cattle sales ; I did not buy these bub loocks; the bullocks were rubbish, and my men cannot do anything with them; they were smothered in mud when I first saw them ; I told him they were no good to me. Frank Barker was then called who corroborated the defendant’s testimony as to uselessness of the bullocks. Percival Barker was also called and gave similar testimony. John O’Grady was called and proved that the bullocks had a habit of lying down when they were put to work, and were utterly useless so far as polar bullocks were concerned. Henry, a Native, was then called, and corroborated the evidence of the last witness. Mr Kenny then addressed the Bench on behalf of the defendants. Mr McDougall replied. He said : —Mr Barker’s principal defence was that Mr Twohey had warranted the bullocks good polers. If that warrant had been given it was no defence to’this action, for Twohey’s witnesses had proved that the bullocks were worth the £l4 and Barker’s witnesses had not fixed any lower value. And a breach of a warranty does not entitle a buyer to rescind, but there was no warranty. Twohey was positive ; and so experienced a man as Barker would never, after Twohey’s deliberate refusal before witnesses at Makaraka to give a warranty, have accepted a mere word of mouth. After the refusal before witnesses he would have taken the warranty in writing. His other defence, namely, that he had bought, subject to his approval after a trial, was inconsistent with the first defence of a warranty ; both tales could not be true. It was also inconsistent with Barker not having sent the bullocks back as soon as they were found unsuitable, as Barker says they were ; and it was inconsistent with Barker having, on his return from Dunedin, offered Twohey that if Twohey would take the bullocks back Barker would fatten them for nothing, and pay Twohey something for |his trouble, and buy another pair from him. Barker would not have made this offer if he was entitled to try the bullocks before accepting them. His Worship said that the question was whether or not there was an absolute sale and delivery. He was of opinion that the weight of evidence was in favor of the defendant, bo he would give judgment for the defendant with costs £1 19s, including solicitor’s fee.