MAGISTRATE'S COURT.

Pukekohe & Waiuku Times, Volume 2, Issue 129, 19 September 1913, Page 2

MAGISTRATE'S COURT.

Pukekohe—Thursday. (Before Mr F. V. Fraser, S.M.) A COMPLICATED CLAIM. An involved crse, R. S. Aicken v. F. Perkins, of Pukekuhe, occupied th2 attention of the court. It appears that one Thomas Latla sold a property to one Shannon. Shannon employed a contractor named Can to build a house, and Carr in turn subcontracted to Aicken. Meanwhile the agreement between Latta and Shannon was called oif and AickeD, to protect himself purchased the property (with the house in process of erection) from Latta. The statement of claim set forth: (1) That on or about the 15th May the defendant broke into and entered the property of plaintiff at Fukekohe and wrongfully removed and converted to his own uie goods of thn plaintiff, to wit, certain bricks, cement, lime, a rangp with a copper boiler, a tiled grate, a quantity of sand and two tanks; (2) that in consequence of the alleged trespass and conversion the plaintiff has been compelled to replace tie aforesaid gocds at a cost of £29 13? 2d. (3) The flaintiff claimed (a) £l5O general damages for the said trespass and conversion; (o) £23 7a 31 the value of the converted goods

(bricks, cement, lime, copper, grate, etc.) and the coats incurred in replacing them; (c) in all the sum of £179 13s 21. Mr Tunks appeared for plaintiff and Mr Cotter, K.C., (instructed by Mr Mason) for the [defendant. Reginald S. Aicken, of O'.ahuhu, painter, deposed that he was a subcontractor under one Carr, the builder of the house. He was never poid a penny of the sub-contract nonry. Plaintiff's puichase of the property came about through his inability to get his money. Latta (from whom he purchased) would rot pay the liens over the building, and plaintiff sai l he would purchase the place if it was good enough; so he purchased it, paying £I4OO for the land and agreeing to complete the house and pay the liens. The whole transaction ran into close on £IBOO. At fhe time he bought, the property claimed for had then been on the pla:e for some six weeks. After purchasing, he ussd som3 of the lime ar.d the tanks. At the settlement there were a conniJerable number of claims which he could not entertain, but he reduced it to his decision to complete the house and discharge the liens. Defendant's claim was mentioned through the telephone, but Carr mentioned distinctly that he owed Perkins nothing. Plaintiff did not hold himself responsible for Perkins' account against Carr. Plaintiff told defendant that he did not hold himself liable f.;r Can's accounts, but there were certain of Perkins' paints, abiut £7 10s worth, which he had used and would pay lor. Defendant said there had evidently been some funny business between Shannon and Carr. Plaintiff had to purchase yoods to replace those taken away. Cross-examined hy Mr Cotter plaintiff said he did not know if he really bought th 3 goods from anybody. He understood that he bought the jrosds involved from Carr. The goods were not built in but they were in process of being built in. He considered that gocds on the land, in contemplation of the building, although only partly built m were pert of of bis purchase. Witnrss had nothing in writing to show that he bad bought these materials from Latta when he bought the property.

Plaintiff's counsel here held that plaintiff was actually in possession of the goods, and however he became possessed of them that possession held Rood as against Perkins. Although Carr owed him £4O, perhaps ho had the value oJ the debt in Carr's work on the house. The sum of £225 was reserved to pay the liens and complete the house. Liens totalling £ll4 had been paid; in addition some £2O was paid in respect of woik done prior to bis purchase of the property. He understood clearly that Carr did not owe Perkins anything. Thomas Cook described the entry

of three drays belonging to Mr Peikins, but he could not say whether the damage done amounted to £SOOO or sd. Fcr the defence, 'lhomas Latta, of Pukekohe East, deposed that he was exchanging properties with Mrs shannon, for whom Carr proceeded to build a house. When trouble arose Aicken, amongst others, put in a lien. In the arrangement to sell to Aicken, Aicken agreed to pay £7CO and th> balance on mortgage, agreeing to settle the liens and all just debts against the house. The price witness got was simply for the ground; he did net sell the house nor the property on the ground, When Aicken was accommodated with an additional £75 Aicken said he wanted the money to meet Mr Perkins' account. Aicken made nu demur aganst paying Perkins. To Mr Turks: Could not say when he sold the house that he stipulated that Aicken was to pay Perkins' account. H. He keth, solicitor, deposed that while preparing the mortgage for Aicken, Perkins' account was mentioned and Aicken made some ob-

jection. Afterwards the solicitors retained £3O to cover any claim that Perkins might make. Aicken said he would not recognise Carr at all, but said he would become responsible) for any debts that Shanron bad incurred in connection with the building. It was quite clearly understood that Aicken was to pay Perkins' account if it proved to be correct and just, Charles Richardson, represented Carr at the meeting when the mortgage was settled. He mentioned Perkins' account which was made out against Carr, and it was arranged that all iuat liabilities against the house were to be settled by Aicken. He did not confine his iabili-

ties only to such persons as had liens The'defendant, F. Perkins, detailed his transactions with Carr. Subse-

quently, «ihen Aicken was taking over the property, Mr Ball, of Russell and Jackson, rang him up and asked hiw for his account. Mr Ball told him then that his account wan being provided for and that he wou d be paid. Several firms were mentioned, but' nothing was said about a lien. About a week er so alter the plaintiff came to him and told iiim h'j would be paid in full. He saw Mr Ball, in Jackson and Russell's oflice, and he told witness be had between £BO and £9O on

account of Aicken, and if witness could get an order f;om Aicken he could hia money. Mr Ball told him that as he had not put in a lieu on the job he cculd not pet his money. He declined to accept an ofl'er fiom Jackson and Ru3-ell for £l7 93 sd, and the following day seized the articles on the grsund. Examined as to the items of claim he contended the charge for cartage was excessive, 303 being about a fair price. The lime a r d cemcr;t was worthless and he threw it out; the range end one of the tanks had been damage 1. To Mr Tunks: He instructed Mr Mason to get the order from plaintiff. In his interview with Mr Ball he did not remind him of his promise over the telephone. He di I not wait to hear the result of. Mr Mason's interview with plaintiff, but shifted the goods the following day. M. G. R. Masoti, solicitor, put in the correspondence between f>:essrs Jackson and Russell and himself in connection with the claim. Wilness gave a detailed account of his conversion with the plaintilf concemirg an order to defendant. Plaintiff admitted liability of £7 for paints, but repudiated all liabilities for the groc?ries. The other part of the account was discussed, but finally plaintiff said he would go to Jackson and Russell and there the matter stopped. Subsequently he received an offer from Jackson and Russell of £7 for painta ar.d £lO for the remainder. Hs communicated this to defendant who did not consider it enough. Witness was instructed to collect the undisputed amount of £7. To Mr Tunks: The decision to seize the floods vras deliberate, and was made prior to any reply being sent to the offer of £lO,

Charles Lauer, farmer, who saw the goods being removed, deposed that no damage was done to the fence.

This was the case for *he defendant.

In rebutting evidence the plaintiff called T. F. Ball, solicitor, who arranged the settlement. Witness denied ever having made any promise to pay defendant's account. He may have said that money was being put aside to meet any claims. He was positvs he never said the account would be paid in due course. His impression was that the plaintiff only intended to pay for what he W2S legally compelled to. The Magistrate, in giving judgment, said the ra was no doubt that through the chain o f circumstances Aicken had roms into possession of the goods. The defendant had only a moral claim. It appeared that plaintiff never intended to give the gocds back ar.d would uss them without paying for them. He could not find any legal justification fcr the defendant's action in seizing the goods. However, the tiespass was only a nominal affair and judgment would be as follows:—U:i the claim fir good? he would assess the value as bricks £5 2s 6d, range £3 17s 6d, grate £l, tanks £5 5i 6d, sanu £1 Is 9s, cartsge £1 10s, total £l7 17s 3d. From this would be deducted the amount plaintiff admitted was owing for paints £7 8s sd, leaving a balance of £lO 8s lOd. On the claim of £l5O for damage for trespass, as no actual damage had heen done he wculd give plaintiff ss. In fixing the costs the Magistrate allowed ti:e plaintiff £1 16s on the claim for goods and the defendant £8 3s on the claim fcr damages The Magistrate, during the course of his judgment, expressed strong disapproval of the plaintiff's actions in the matter.