SUPREME COURT.

South Canterbury Times, Issue 7063, 8 February 1893, Page 3

SUPREME COURT.

TlMAßU— Wednesday, Fbb. Blh. (Before His Honour Mr Justice Denniston.) The Court resumed at 10 a.m.” OITXL CASE, George Conrad Primmer v. Peter Stewart, claim £726, damages for slander, libel and malicious prosecution.

Mr Stringer (instructed by Mr Wilding), for the plaintiff ; Mr Rjymond (instructed by Mr Outhbertson), for defendant. The following jury was selected the previous evening:—T. Oharteris, James Christmas, D. Stowell, Paul Fraser, W. MoK. Thompson, J. Mair, W. Ferrier, J. Qliddon, J. Greig, J. Meehan, A. Schmidt. (Mr Moeaan was chosen foreman ) Mr Stringer stated the plaintiff’s case to the jury. Plaintiff was a farmer at Westerfield, defendant a money-lender at Ashburton. In September 1890, plaintiff being in want of money obtained £l4O from Stewart, scoured by an agricultural lien over growing crops of grass seed and oats. The crops matured and plaintiff began to harvest the grass seed when a nor’-wester came on, blow for several days and completely destroyed the crop. Plaintiff saw defendant about it. Defendant knew perfectly well that plaintiff was in difficulties over his mortgages, the £l4O was in fact to pay interest on the mortgages They conferred as to the best thing to do, and it was agreed that the oats should be out “ on the green side” and converted for chaff. Primmer wanted assistance in harvesting, but Stewart told him he must do the best he could; sell the chaff and pay expenses out of the pro(ceeds and Primmer went to work on that basis. Primmer sold the grass seed he bad managed to save, and the proceeds were handed to Stewart. Later on he sold chaff to different persons ; some of the proceeds be retained for bis own use, and some be banded to Stewart. When these various sums had been paid there was left £7O odd due to Stewart who naturally pressed for payment. After some conferences Primmer said he had best sell the farm and Stewart agreed. The farm wai put into Mr Thomas’s hands for sale and Primmer gave Stewart an order on Thomas for the balance due to him. It was then supposed there would be a larger surplus than there proved to be. The farm was sold and there was only £23 odd to pay on the order. When Stewart found he was not going to get all his money be became angry and talked about prosecut- I ing Primmer for selling the chaff. After some * 1 woids in the street they went into Mr Wild-

ing’s office, with Mr Ihomas, and they had a talk about it, Thomas said, “ Here’s Stewart threatening to have Primmer arrested,” and Stewart said Primmer had sold his chaff and had not handed over the money. Primmer immediately turned round and said “Why you gave me authority to sell the chaff yourself.’ Challenged in that way, Stewart said, “ Sea I did ; but if I don’t get all my money I’ll , prosecute you," Tliomoa said it was ridiculous to talk like that, and made some calculations which showed that Stewart had got the value of the chaff, lees harvesting expenses, and then he (Thomas) had the order for payment out of the proceeds of the land, and with this Stewart seemed satisfied. The lien was given in September ’9O, the grass seed and chaff were sold in March, April, and May, and cheques handed over ; the interview at Wildings was in July, the sale was completed in December, and Thomas handed to Stewart a cheque for £26155. Nothing further took place between the parties till September ’92, nine months later (except that applications for the balance of about £SO were made) and tben , Stewart laid a criminal information against { Primmer for having wrongfully sold the j crops which were included in his lion, with intent to defraud him. The case was beard j by the Resident Magistrate and dismissed, j These were the bases of the claim. I Evidence for plaintiff was then led. ) J. E. Collier, clerk of the Court at Ashburton, produced the information and depositions in the case at Ashburton, October 1892, and the depositions were read.

Plaintiff stated be bad in 1891 a farm of 500 acres at Westerfield, under mortgage, 120 acres in grass seed and 60 acres in oats. He gave evidence in detail supporting counsel’s statement. Two witnesses, McOan and Duncan wore present, whan Stewart gave him authority to sell the chaff. They were all in a tent at the time. The nor’-wester, ho said, blew for ten days. He enumerated sums received for the crops and handed to Stewart ; and other sums not handed over but used by himself. Stewart offered to carry him on for another year if bo would put the whole farm into wheat, but plaintiff said he had had two bad years, and had had enough of it, he would rather sell. Stewart said very well, be would wait for the sale.

Plaintiff related the conversation at Wilding’s, admitted that be bad bad several applications for the balance, and a letter from Mr Outbbertson warning him that a criminal action would be taken. It was taken and cost him about £2O.

Mr .Raymond in cross-examination elicited that chaff was sold to a number of persons whose payments were not handed to Stewart, some of them were settled by contra accounts, some lost by bankruptcies. Believed he told defendant the names of buyers. Defendant did give him authority to settle his o-vn debts wi<h chaff. Took no action on the slander in July. Had not paid the costs of the prosecution. A friend (Mr Restell) had given a guarant/a for them ; also for part of the costs of this action. The two witnesses who were present when Stewart gave him authority to sell, were in the tent, but he believed they wore asleep. Had not mentioned that before. J. Johnston, contractor, showed that Stewart was willing that Primmer should let him have chaff in payment for ploughing for turnips. The turnips, however, were to fall under bis security.

D. Thomas, auctioneer, related the conversation in Wilding’s office. When Stewart talked of having Primmer arrested witness told him he talked like a child, and Wilding said something to the same effect. Witness made some calculations and showed Stewart that he had actually been paid £2 over the value of the chaff, less cost of harvesting and catting; though only three sums were mentioned. That did not satisfy Stewart, “ who was always on the arresting business.” It was aftef that witness received the order. Several times advised Stewart that if he arrested Primmer he would lay himself open to an action ; could see that quite plainly. Got the feceipt produced from Stewart, for £26 odd, for balance due on lien over crops. Stewart added the words “ wrongfully disposed of by Primmer.” It was kept in the office and Stewart’s addition was a standing joke among the clerks. In the course of cross-examination by Mr Raymond the witness said he had not been friendly with Primmer for yeart, he was Stewart’s friend in the matter. He admitted (objection was made to the question and overruled) that on one occasion he said to Stewart, in reply to his saying he would arrest Primmer, “ For God’s sake let him alone and get him to sign this transfer. He has robbed me of over £IOO ; you needn’t growl.” (Mr Raymond pressed the question to show that witness had another reason than the childishness of it, for dissuading Stewart from prosecuting.) Mr Wilding, solicitor, gave evidence respecting an*interview in his office, in July 1891, when Stewart was threatening a prosecution. Stewart certainly admitted that he authorised Primmer to sell chaff. Had no doubt about that. Knew nothing of the dispute at that time, and when he learned the facts told Stewart not to make a fool of himself, but to take what balance there might be from Tbomas and be satisfied with it. Was present at the prosecution and beard Mr Outbbertson say the criminal action would not have been brought if the money had all been paid. This closed the plaintiff’s cases On His Honour’s suggestion Mr Stringer abandoned the claims for slander and libel, as practically covered by the claim (£500) for malicious prosecution. Mr Raymond sketched the case for the defenoe. The principal question to be settled was : Did Stewart authorise Primmer to dis-

pose of the crops P If Primmer had proved that he did, Stewart should not have brought this action. Primmer’s duties with regard

lothe crop were to treat it strictly as Stewart’s and sell not a single straw without his authority. Now he stated that he had a

, erbal authority. Plaintiff told Mr Outhberti ( eon there were two witnesses to the giving rf that verbal authority, jet to-day be said those i two “ witnesses " were asleep. The two men , would be called, and would bear out defendant’s own statement that not a single word was said at the time about the crop. He would show that plaintiff borrowed the money on the representation that he had a 30 bushel crop of grass seed ; that, so far from the seed being knocked out by ten days’ nor'-wester, there was very little wind that season; and that—in violation of his duties, he put stock in the grase seed before harvesting it. About the 28th Mat ok, Primmer paid a cheque to Stewart in the presence of one Hanks, and Stewart objee'ed to Primmer selling any of the crop without hie express authority. Primmer said nothing then - did not assert, as be did now, that he bad received authority before that date j and the same day in the presence and ou the advice of Mr Outhbertson, Stewart expressly forbade Primmer to dispose of anything covered by his lien. As to the interview at Mr Wilding’s, defendant and Mr Outhbertson would say that Stewart did there deny that he had given authority. The proceeds of the sale of the crop, according to plaintiff’s own figures was £l2B, end though ho had made out very little expenses, he had only paid over £75. He sold chaff to many people whose names he did not disclose and Stewart had to go about and hunt them Up as well as ho could. When the jury heard the evidence on his side, he believed they would say the weight of probability would bo that Stewart never gave any authority to Primmer to sell. The defendant tben went into the box to give evidence in support of counsel’s statement. He denied that there was any nor’wester about seed gathering time. He did not object to the oats being out for chaff. In the presence of Hauks told Primmer not to sell. When receiving a cheque for a certain quantity short, Primmer said there was a contra account, told him he would have none of that sort of thing. Asked for account of chaff sold, but never got one. Saw plaintiff in the presence of McOan and Duncan, but not a word was said about the chaff.

Tha Court at 1.15 adjourned till 2.45 p.m. for lunch.