STACK FIRE SEQUEL.

Pukekohe & Waiuku Times, Volume 4, Issue 21, 16 March 1915, Page 2

STACK FIRE SEQUEL.

Court Proceedings. The Magistrate (Mr F. V. Frazer) resumed the hearing; at a special sitting of the Papakura Court vesterday of the claim made by Thoß. Gillard, farmer, against P. Sweeney, farmer, for £75 va'ue ot a stark of oats and £5 special damages. The evidence given at the previous hearing was to the effect that plaintiff by arrangement with tha former owner of the land, now deceased, had cultivated the property and had secured a crop of cats, which was stacked in a corner of the paddock, the defendant (into whose possesion the property had passed) refu?ing to allow th* plaintiff to remove the stack, which was desroyed by fire on the 13th ult. Sweeney counter-claimed lor £26 !*s lid in reepect of ploughing and the erection of a fenc?.

Mr Schnauer again appeared tor Gillard and Mr W. Hackett for defendant

Evidence for plaintiff was continued yesterday, and the first witness called was Robertson Morton Gillespie, land . agent Papskua. He said that !:e was trn lepresentative in Papakura of the Atlrs Insurance Co., Auckland, which office insured the stack that had be;n

burnt. Gillard approached him in connection with insuring the stack for the first time on the 9th January. He communicated with the Auckland office, and as a result a uood deal of correspondence passed between the two offices before, he eventually measured the stack. On account of the dry season it was necessary to arrive at an estimate of its contents with the use of a special formula which the head office had been working on. He measure] the stack that had been burnt before the Insurance proposals had been signed, and found that it was larger than a previous Btack of plaintiff's, which stack ha had measu ed for him. The stack that lad been burnt contained by measurement seven tons of chaff, but according to the new formula its contents were 12 tons. Just about the time when the proposal on the burnt stack waß about to be accepted he was advised by his Company to work cut the measurement of the stack by acreage, meaning that he wa3 to allow a ton for every acre of the patch that the crop had been taken from.

Cross-examined by Mr Haekett, witness said that both he and Gillard were anxious to insure the stack. When the proposal fur insurance was seat in to the Auckland office the contents of the stack were mentioned as being eight ton?, but on the insurance policy, which was supposed to be correct, the contents were mentioned as being ten tons. The eight tons, as mentioned on the proposal, was arrived at by measurement. He had forgotten the measurement of the stack that was destroyed but it would possibly be on a p;st near where the stack had been, where he had figured it out. He valued the stack at £S 10s per ton, cut into chaff, and delivered at the Papakura railway station. It had only been insured fcr what might happen to it while it was on the property. If it had been shifted the policy would have ceased to exist. He knew from previous experience as a farmpr that the stack was worth from £BO to £IOO, and he would have been prepared to purchase it from Gillard at the former figure. He had valued the stack for insurance purposes at £7O. The Company would only insure it up to two-thirds of its market value. He had not put 12 tons down on the proposal as being the contents of the stack because it was his opinion and not that of his company. The tonnage he had put on the proposal was below the estimate.

Thomas Paton, farmer, of Papakura, deposed that he had been a farmer for the past 40 years, and had resided in the district for a period of years. He had been stacking oats and hay since he had first started work. He considered that there had been ten tons of oats in the burnt stack. The oats were short but well headed and tUjB stack had been.free from weeds. If the stack had been cut into chaff the waste would have been practically nil. He had never negotiated the sale of a stack and accordingly had no idea as to the value of a stack.— In cross-examination by Mr Haekett, witness said there had been no dofoct in the erection of the st'.iek David Wilson, land agent, of Papakura, stated that he lived opposite to the property on which the stack had been situated and had passed within half-a-chain of it the night previous to the tire. It was then all right. At 5.15 a.m. the following morning lie noticed that the stack was on tire, lie walked to the scene and found the remains of loose straw on the ground all around the stack, with the exception Of the windward side, and there a heap of straw freshly pulled from the stack was burning. The flames wore then coming out of the top of tha stack, and his opinion was that the fire had started on the outside.—Witness, when cross-examined by Mr Haekett, was clearly of the opinion that the stack had been set uu fire. Ho considered that there must Lave boen either eight or nine tons of oats in the stack.

William Mills*, general fanner, of l'apukura, was the next witness. He said that ho cut the oats for the burnt stack. A start was made to cut the oats 10 acre.- on the la-'. Jay of December and the work was finished the following day. The average of the crop was very fair for the season and the stubble was clean. He estimated the contents of the stack at between 11 and 12 tons, an 1 there would have been practically little waste, if any, iu the cuttiug. Henry Henderson, fanner, Papakura, said he owned a section alongside the Sweeney's property and had seen the stack and ho estimated t.'ie contents to have been at least 10 tons. Qrestioned by the magistrate, witness said that it was impossible as ''things" were then to try and estimate the contents of a stack by measurement, lie was prepared to bet that there had been at least 10 tons of oats iu the stack.

Plaintiff, recalled by Mr Hackett, said that Acres, a previous partner of his, had agreed to pay him £2O for his (GillardV share of the first crop of potatoes that he had off Sweeney's property. Iu connection with an accouut dated June' 2nd,

1914, debited to Acres by Gillard, which was handed to Gillard to read by Mr Hackett, tiiere was a cuargo of £l7 (agroed to give on potatoes). Plaintiff explained that the £l7 (charged) was the balance of the amount owing on the potatoes and y* he thought that Acres might have paid hiin in advance the £3, which went to make up tho £2O. There was also moution made on tho account of a charge for ploughing and a charge ior scarifying. He said that tho ploughing roferrud to had no connection with Sweeney's property, but that the scarifying mentioned was tho scarifying ofpotatoes on Sweeney's land. 110 had had no conversation with Mrs Sweeney (wife of defendant' re liar husband's property and there wat- no foundation for a suggestion made by her that he (Gillard) had told her to tell her husband to .stop cleaning a patch of gorso on Sweeney's property until he Gillard) put up a fence.

Evidenco for tho defem 9 was then taken.

Patrick Sweeney, said lie was tho defendant at.d tho iirst arrangement made by Gillard with him was that Gillard was to take the land (11J acres) for one crop. There weie no arrangements made as to what he was to do iu recompense for the use of tho laud. Gillard approached him later and said that it would not pay him to use the property for one crop and he asked if he could have / it for two crops ; lie said if Sweeney , would let him have it tor the extra ►. period he would plough it and leave it ready for grass and erect a dividing fence between the paddock and Mrs Smith's propeity. This arrangement was agreed to by both parties. A mouth prior to tho date that the stack was burnt, defendant had been told that there were cattle in the paddock and he asked Gillard if lie had any authority to put the cattle in tliero and Gillard said that he did not think they would do any harm. He also asked him if he was going to plough tho paddock and leave it ready for grass and also erect the fence. Gillard said " no, it's not in tho bargain." Defendant replied that "it was surely in the bargain " and told him that iio would put the cattle out of the paddock, which he did. He then padlocked and wired the gate. Ho received a letter from Messrs Brookiield and Schnauer, solicitors of Auckland, dated tiih February, notifying him that if he did not unlock the gate of the 'paddock, lie would be held responsible for any damage that might occur to the stack, and as a result of the contents of the wenc to Mr Willis . with the idsfeof insuring the stack, but after KpsMid explained matters in connection therewith Mr Willis told' him that he (defendant) had no insurable,part in tho stack, flo was iu the vicinity of tho stack the evening before the tiro and it was then all right. He did not know why '* Gillard would not put up tho whole of the fence. There had been two men working on the fonco for Gillard, but they had to ''knock off" because there was no wire to con-

tinue. Defendant, when eross-exauiiuoi by Mr Schnauer, said that he did not have Kirk, a farmer, working on his behalf in connection with the "case" .He was not prepared to swear that he had not seen Kirk two days before the stack was burnt. He denied the suggestion that he had threatened a Mr Jesty, (storekeeper), Ness Valley, beoau.se ho was supposed to bo going to give evidence in the case. When his wife called on Mr Stanton, a lawyer in Auckland, he did not advise her to hand over the stack, but he advised her to insure it. Kirk did not give him any advice in connection with the case, but did suggest to him that he (defendant) should show to the police a letter that plaintiff had written him. He was at his home about half a mile from the stack on the night of the fire. In connection with the fence he had assisted plaintiff to put it up and finished working at it when he would not go on with it. Plaintiff had said that he would do mote to it when ho had time, He defendant did not raise any objection to the style of the fence that they had erecteh Ho completed the erection of the fence himself in three duys. Ho had never asked. Mr A Smith to arrange a contract on his behalf to lot the property. The firSt arrangement made was by himself \ with Gillard on October Ist, I!) 13, and on that occasion nothing mentioned re rental, or the erection of a fence or ploughing. Tho Magistrate interposed and remarked that it was a strange sort of an agreement to make. Defendant, continuing, said he was quite agreeable to let Gillard have the use of the proporty for one year in consideration of his "turning it over." At the second interview Gillard sail that if he was allowed the use of the land for two crops he would plough it and leave it ready lor grass, and also erect a fence in place of an old one. This arrangement 'hoy both agreed to, uo (Sweeney) ottering to assist Gillard with the erection of tho fence. The Magistrate cjuld not understand why Gillard should want to erect a new fence in place of the old' one, which had been good enough for the first wars' crop. He con-

.side-red if it h id done sjrvieo for oue crop, surely it was goo 1 enough for the second crop. A: this s'.agu of tin proceoJiuga defendant seemed a "little mi\od" mil contradicted .himself as to wii 'ther i: was he or Gillard who had liist meutioQ9d the erection of a fence at the second iuterview. He went on to say that he had made arrangements with Kirk to plough the laud at 12s per acre. Iu answer to a question from Ml Iluckett, defendant said that iu connection with the agreement made between himself aud Gillard, relating to the land, ho had suggested to • Gillard that it should be put in writing, but Gillard said there would be uo necessity to do it.

Micha >l Keady, turn t, Papakura, deposed that he owned property in closo proximity to Sweeney's property. He had pissed the stack several ii:nos, an! considered that there would have been about seven tons ot oitsiu it.—ln cross examination by Mr Sehnauer, wituess said that he had t vo year's farming oxperiencaia N.nv Zealand. He con« sidered that the crop of oats would have run about lo hundredweight to the acrd. Ho could not under-

stand Gillard Laving been ottered £8 a ton for the chaff, on trucks at the Papakura railway station, by the manager of the Massey, Harris Co., Ltd., Auckland. The top price per ton that was being paid for chaff at the time the stack was burnt was £7 7s 6d, and it had been going up in price ever since. He had been trying to sell his chaff but could not got £8 per ton. The top price now being paid was £7 12s Gd. Mrs Bridget Sweeney, wife of defendent, eaid that plaintiff told her that he was pleased to get the paddock. Her husband was working at the time clearing gorse from an old fence and plaintiff asked her to tell him not to clear the gorse until he (plaintiff) would be removing the old fence to its proper place. She gave the message to her husband. He had also asked her to ask her husband to make a drain in the paddock. If he would plaintiff said he would plough the whole paddock. At the time he also mentioned about a green patch of half an acre. Witness said, in cross examination by Mr Schnauer, that the conversation referred to took place about six months ago. Plaintiff could have ploughed the paddock more easily if the drain had been put in. She understood that plaintiff had to remove tho old fence on to a new line. She could not say what she bad written in a letter which she had forwarded to Mr Schnauer's firm in answer to a letter received from them and she could not also remember whether she had read the letter over to her husband before posting it, but she did remember reading the letter she had received to her husband. She had only answered the letter out of courtesy. She had made no reference in it to the fence, with the exception that the man who had taken the property over, meaning plaintiff, would have to erect it, because Mr Schnauer had been acting on behalf of her sister, Mrs Smith, and he knew all about the fence. She did not show the letter she had received from Mr Schnauer to Kirk, but her husband took the letter and he might have shown it to Kirk. She- knew that her husband intended to show it to someone, but he did not tell her to whem. She did not know how long it had been in his possession. Questioned by the magistrate, Mrs Sweeney said that Kirk had been at their (Sweeney's) home on two occasions, once during the past week: She had asked Kirk to get the address of a Mr Acres (a previous partner of Gillard's) because she knew that Kirk had been writing to Acres and he (Acres) might prefer to answer him in preference to herself if she had written because she had not made Mr Acres' acquaintance and Mr Kirk had brought her the address. On the other occasion, when Kirk visited the house she had asked him again to write to Mr Acres. He had not been in the house one evening a fortnight ago. When she had visited Mr Stanton he did not advise her to hand over the stack, but had advised.her to defend the case. Mr Carr (her husband's " boss " on tho railway) had suggested that the stack should be insured. She had never seen Kirk before the occasion when she had asked him to get Acres' address and she had never heard her husband mention anything about him. ' Hugh Kirk, was the next witness. Ho said that he was a farmer resident in Papskura and that he kuew Sweeney well. He had come to an arrangement to plough some land for Sweeney. He lived close to the property where the stack had been and he estimated that it represented between six and seven tons. It would not have exceeded seven tons. He visited the stack when it was burning and noticed that there were two holes in the stack where sheaves had been pulled out. He was quite satisfied that the stack had been burnt down intentionally. He informed the police of the occurrence.

Cruss-oxamined by Mr Schnauer, witness said Lis attention was first drawn to the burning haystack by a milkman named Bradbury. He could nut see the lire from his home. He remarked to Bradbury, " Know-ii,-r the trouble over this, it's my place to inform the police." R\ ,wts never at the haystack before the tire but had been there twice since. Mr Sweeney saw him and told him that lie wanted to see him that evening (the Monday evening after •.he fire 1 ,. On February 4th (nine days before the fire) he had been talking with Sweeney who had invited him to tea. They had both been to see a solicitor together, in Auckland, and arrived home by the 4.15 p.m. train. On their arrival at Fapakura Kirk took a friend's sulkey and drove Sweeney and himself home, where they had tea. He left the house at seven p.m. The conversation that evening had nothing to do with the '.' case." Sweeney had showed him the letter he had received from Gillard and lie thought its contents were peculiar and aciyjdingly ho advised Sweeney to take it to a policeman and get his (iiiinion on it, but he did not know whether Sweeney had followed his advice iu the matter. Sweeneyasked him whether he thought it advisable to injure the stack and ho had replied " yes, it will make you secure it anything should happen to the stack.'' He knew Gillard owned the stack and he did not know whether Sweeney was wrong or rh'ht when he "hold" the stack. His name was not unknown iu court circle.-. He had boon " mixed up " in an assault case with a Mr Mill-, a Fapakura. farmer, and luil heard that Mr Mills' house had keen " set " on tiro hut |,o did not inform the police ' ■ aise h'.' had only heard it second- ,.,;.!. He was Mr Mills' next door , . hbuur. He did not have a • in ~; ho was living with his father ,u ids father's farm. Ho did not u.iv his father board money, lie j,(i'l done nothing on his father's ntrm since the beginning of thu year. He owned a team of horses and did casual work. He could nut say the average amount of wages per week hr> had earned since the beginning of the present year. He had received no money from Sweeney and had purchased no new wearing apparel since the fire, but on the 'day of the fire he purchased a new pair of pants. He did not " about the township. He admitted haviug been prohibited two or three times, but be had not been about

the hotels during tho present year. His prohibition order "ran out" last December. He started to plough Sweeney's land on the Monday previous to the fire, and finished it last Saturday. He had written a letter to Acres, telling him that he might be wanted as a witness in the case He saw Acres a weak ago last Saturday ; he went by train (paying his •own expenses) to see him about some land. He was last near the stack between four and five p.m. on the evening before the fire. J. Acres deposed that he had agreed to pay Gillard, who had been his partner, £2O for his share of the crop (first crop) of potatoes, etc , got off Sweeney's property.—Cross-ex-amined by Mr Schnauer, witness said that there was no reason for Kirk to have visited him iii connection with some business that Kirk had been overlooking for him. He had written him on the matter.

John Andrews, farmer, of Papakura, was the last witness. Ho considered that tho fencing done on the property was worth about £3 10s. This closed the evidence and it was arranged that the case should be adjourned to Auckland for a date to be fixed when judgment would be given after Counsel had addressed the Magistrate.