MAGISTRATE’S COURT.

Stratford Evening Post, Volume XXXI, Issue 60, 7 October 1916, Page 7

MAGISTRATE’S COURT.

DONALD V. MCGOWAN Mr Haselden. S.M., in giving bis decision in the above care, after ((noting various legal cast's bearing n!i the above action, wrote as fellows’Fur the plaintiff it is urged that both Donald and bis employee, .McKuigwt, say that defendant agreed to the retention by l‘ie plaintiff of ary sum received for the car over £lB5. It is here that doubt arises in my mind. The terms in ..Inch this acquiescence on defendant’s part are expressed are not definite and clear, and 1 do not think that the fact that the plaintiff and his servant allege that which is point blank denied by the defendant is sufficient to enable me to say that the weight of evidence on this point is in plaintiff’s favour. Weight of evidence is not numerical weight, but cogency, convincing power, and credibility. For the defendant it is urged that the acts of the plaintiff are against the assumption of the plaintiff’s right to retain the surplus over £lB5. The defendant denies any such arrangement. The receipt given to Gundersoil does not mention the price, and ii everything was square and honest, it would be expected that the receipt, which s really the contract, of sale between Gunderson and the vendor would express the pi4*v. As a conti act, it is : neomplete u i'thont mention of the price. 'Hie plaintiff concealed from defendant tiro price at which he sold to Gunderson. Tin* olainiifl retained the £lO paid by Gunderson, and though payment was demanded by Gunderson, the plaintiff on various excuses had not repaid tins £lO up to the date of hearing this case. Hie rimini-stances under wiiicli Gunderson ultimately acquired the “Singer ear arc peculiar. The defendant sold the car for £lB5 to one Christiansen, who forthwith sold it for £2OO to his nephew, Gunderson. Christianson says ho owed Gunderson the money. |f‘ tin- defendant had to prove the affirmative on this issue, 1. do not think on the evidence ou both sides 1 could find a verdict in his favour, but the onus of proof on this point is ou the plaintiff. He has got to satify the Court that there was an agreement by which b 0 could retain any sum he received over Cl So. and though it is an unsatisfactory conclusion In arrive at. 1 am constrained K, say that he has failed to satisfy me on this point. This is due to the deficiency in proof, and not to any want of care on my pari. Plamtili is nonsuited with costs. ft is understood that Mr AV. Donald will appeal against the derision.