DISTRICT COURT.

Colonist, Volume III, Issue 304, 18 September 1860, Page 2

DISTRICT COURT.

[Before W. T. L. Travers, Esq., pistiict Judge.] Saturday, August 15,1860. I). Moore v. A. Oao.—An action to recover the sum of £46165. 4d. for an overdue bill, due 9th January, 1859. . John Jones, clerk to the plaintiff, sworn: Produce the bill of exchange; presented same at bank, but was dishonored; the name on the bill is in defendant's handwriting. Judgment for the amount, with interest and costs amounting to £G6s.6d. Mr. Kingdon appeared for plaintiff. . Hemphill v.^W. H. WASHBOUBB.-^An action to recover the sum of jEIOO. .

John Packer Martin sworn t Produce a bill of exchange dated October, 15,1850, drawn by J. R. Hays upon WV H. Washbourrie; know defendant's handwriting; bill was presented at the bank, and dishonored. ;jr Judgment for the amount with ,£6.185. costs. Mr. Kingdon appeared for plaintiff. Johnßixonv. W. Hi WASHBO&BNE.-^For an order of £30 dated Ist October, 1859, CbllingJohn R. Hays sworn: Prove ?tne handwriting of Washbourne, and the cheque produced was in defendant's handwriting; there being no funds in the hands of witness belonging tor defendant when the cheque was presented, he refused to pay it. Judgment for the amount with £4 13s. costsMr. Kingdon appeared for plaintiff. Harley and Co. vV F. T. Bury, and same versus same.—The parties not being present when the names were called, both pases were struck off the list. ' ;

, Johk Kerr v. G. Elliott for cattle trespass. r His honor said in its present form it could not go to the jury inasmuch as it did saot specify in the indictment when the alleged trespass wascpm;mittea. " '-' f ■••■-••■■■ '~>\: : \ The case was withdrawn, plaintiff paying costs. Mr. Kingdon appeared for plaintiff, and Mr. Adams for defendant. George Hunter v. Joim Mark Kennedy.— An action to recover £60 6s. This case was allowed to stand over for one month. John Greenwood v. Harley, Gentry, and Co.—-To recover the sura of £54115. 3d* for timber sold to defendants in January last. John Percy sworn: Was clerk fo Mr. Hays in January and February last; Mr. Hays at that time was selling timber for the plaintiff; witness sold timber mentioned in the invoice to defendants amounting to 7275 feet, it waVthe property of Mr." Greenwood; the timber was delivered to defendants., Mr. Hays, who was acting as commission agent at the time, was absent in Wellington., . Cross-examined by Mr. Kingdon: Cannot answer the question as to whether it was sold as the property of Greenwood or Hays; was asked if he had any timber for sale, said he had, and sold it them accordingly; applied to defendants for an acceptance and was refused, as they said they had put it to Mr. Hays' account". Witness told them he did not think-that could be done, as the timber did not belong to Mr. Hays, but to Mr. Greenwood ; defendants still refusing to give an acceptance, witness told them he thought he had been taken in in the matter, and had he have known it he would not have let them had the timber on that account; witness applied for the money after Mr. Hays returned from Wellington., r : His honor said to Mr. Connell, who appeared for plaintiff, he thought there may be circumstances to amend his particulars, and that by going op with it in its present form would only prejudice his case. He (his honor) was only speculating on the matter. Leave was given to withdraw the case without costs, and to issue a fresh summons, and it was agreed that the case should $tand over till Thursday, the 27th instant Mfv/Kingdonappearedfor defendants.

' Harley and Co. v. John R. Hays.—-To stand over until the 27th instant. Costs in this case to be paid by the plaintiffs. B. GijiL v. H. Fi<owEß.--An action to recover the sum of A'2s 4s. for the erection of a fence separating the properties of plaintiff and defendant.;. B. Gill sworn: Reside at Wakapuaka, and defendant had lan/d adjoining witness's; put up'a three-railed fence dividing the two properties,-and sent defendant a bill for his payment before the summons was issued ; defendant and two sons worked two days in putting up the fence, and then knocked off; wages at the time they were working was about 7s. per day; have received "skim milk from defendant frequently,'and offered to pay for it, but he refused to accept it; had butter from defendant during part of the time, which was paid for from time to time; defendant's son was working for plaintiff a little over three .weeks, which witness paid him for; it w^s some time last January ; paid Mrs. flower Jl, and passage from the Wairau, £I '/6s. and ss. for his pocket-money. James Blinco sworn: Know Mr. Gill's land at Wakapuaka, and the fence parting it from defendant's; helped to put up the fence; it was a good stout fence of red pine (6 feet posts and 9 feet rails); saw "flower s two sons working:-two'days—'they bored 80 posts; wages at;siat time was 7s. per day. ' . - . ■.'''* "; .'• ■' Jane Gill sworn: I had milk from Flowers during the last two years; it was always skimmed milk; they would take no money, but always did for butter; never made any charge for milk-up to the present time. Paid Flower's son Thomas for work £1, for going to the Wairau with witness' husband. Cannot say whether he was paid for the other work. , ~

This wa?;the plaintiff case. Mr. Cohnell for the defence said his learned friend had failed to prove any case in this action, and called

Henry Flower, who said, I am defendant in this case. There was an old fence existing there previous, which Gill pulled down and burnt, he brought his new fence, but gave no notice to defendant respecting it; he asked witness to come and lend him a hand; he bored 350 posts between, him and his sons, also sharpened the rails for the 350 posts. Since the action was brought he (plaintiff) would allow £5 for labor if witness would settlelit without.bringing it into Court. Cross-examined: 1 am in the habit of supplying plaintiff with milk; for upwards of *two years; never agreed to give the milk for nothing- Considered that the milk was an offset against the fencing. The fence is all new r had• no conversation with Gill respecting the putting up of a new fence. Margaret Flower sworn: Supplied plaintiff with a quart of milk per day (mostly fresh) at 3s. 6d. per week; never agreed to give it for nothing; .expected sometime to get paid for it. Supplied milk before the fencing commenced, and while the fence was being put up. Never made any claim for the milk, but they paid for the butter. Verdict for plaintiff with costs, to be paid in a month. ' ■■■ : ■:' '••■''■ ■'=-'•■ \ .■;';''. ... .

Martin v Bury, for £62 165. 6d. Judgment i by consent, costs £4t 6s. ■■■-. ■'• V' JEJoiiDAWAY ,y» JLbviekjikd £o. -j (Jjury case^), Mr. Connell for plaintiff, Mr. Kihgdbn for defence. Jury—Messrs. Beach, Beat, Becknian and Bennet. Mr. Adams in opening the case said it was an action brought by Holdaway lo recover the stira of £22 13s. for goods sold, viz., 151 bushels oats at 3s. lid, purchased through one Wright, lately residiDg in Nelson, defendant at the time being absent,, which defendant refused to pay. .':'-'.' John Holdaway sworn: lam & farmer residing in the Waimea. A man named Wright came and offered to purchase some oats; asked him if he had Any for sale and how many; could send perhaps 150 bushels, he said I am authorised by Mr. Levien to buy 2000 bushels if I can, as J am going round the country.- I showed him a sample; he asked ; ine what I wanted for them. I told hiha the market price. He offered 3s. per bushel,1 which* I told him was very low* I told Kirn I would enquire as to the price; afterwardsi agreed to sell him 150 bushels at 35., and s paper signed (which was produced). When he ieturned,he offered to pay 39. l£d. Delivered the oats Mbt that, 151 bushels, at IJeyien's store; delivered them at different times, in three loads, extending over a period of a week. On delivering the;last load I told the clerk I had a few more oats, would he like to take them ? He said yes. I told him he would not have them at the earae price, be would hare to

give 33. 3d. which he said he would. Whenl brought in the last load they were weighed. I asked for payment when the whole of the oats were declined. They paid for the. last load (50 bushels) and told me they knew nothing about the other. Told them Wright was authorised to buy by Mr. Levien; they told me they knew nothing about that and refused to pay. Mr. Levien was in Sydney at the time. Never charged Wright with the oats nor asked him for the money. Oats were selling at that time at 3s. 4d. per bushel. The oats sold to Mr. Levien after jvere the same aasold to Mr. Levien before. Cross-examined: The signature in my name ia my wife's handwriting; was present when it w.as written; knew Wright, and heard people say h© was a pedlar; during the summer he bought oats from me for his horse; paid me in cash; never had dealings with him in goods which he hawked about; cannot say I was in town between the 22nd of June and 2nd July; never called to know whether Wright was authorised to buy for h* ■', fendant; got a receipt for thejfirst load, but had not got it with him; did not get a receipt for the second load, but did on the third. Recollected no onversation between himself and Bryant the clerk, except what he had stated: do not recollect Bryant saying anything to me when I delivered the 151 bushels. When he brought in the 4th load I asked for payment. Bryant would only pay for the fourth load, but the other I was to look to Wright for payment: did not at any time after ask Wright for the money: said they should not pay for the oats until the return of Mr. Levien. from Sydney. Saw Wright after, and he told me he. was surprised at Mr. Levien refusing' to pay, but when Mr. Levien returned* he would . make it all right; When Levien came back Wright was absent, Went to Mr. Levien for payment; he told me he shouW<not pay for them: .; told me Wright was a rogue and owed him money, , t meaning that'hewantedmi^(witnW)batsinpay- " ment of Wright's debts*-^ *■ r.; ■ • - S : > Johanna Polglaze sworn: I am the wife of JoJ seph Polglaze; went to Mr. Levien'a store some time in May last; took; a sample of wheat and oats; this was tlie day Mr. Levien left for Sydney: saw his brother; shewed them to him: told him 9s. for the wheat and .£& for the barley. Asked me if I had no pats for sale: told him Mr. Wright : was buying oats for Mr; Levien. ; Mr. Kingdon said he submitted that this was no case for a jury, and .that plaintiff must be nonsuited: that there was no proof shown that Wright was authorised to purchase for defendant, and' that the oats were taken as part payment. Mr. Levien sworn: Am amerchaut: entered into an agreement with Wright: Wright told methere were plenty of people that owed him money and that he could get oats in payment for it: but if witness would give Wright such goods as he could dispose of he would pay it in oats: had £109 worth of goods; he (witness), never told him to ■ purchase oats on commission for him: the oats were delivered at my store. Plaintiff,called upon witness respecting the payment after he had been to Wright's: he referred him to Mrs. Wright. ■ Cross-examined: Never said that Wright said he would pay for them. Wright was indebted to jme about £150 in overdue bills. Cannot say tht exact number of bushels I bought from different persons—perhaps SOObushels. After the'delivery of "* some of the oats witness arid Wright balanced up and took an acceptance for the balance due. Cannot say that credit was given "V^right tor any those goods until after Wright Went away. Thomas Bryant sworn: Am clerk to J. Levien and Co.: was present in Levien's store when Holdaway's oats were delivered: it was on the 23rd June that the first load waa delivared, containing 14 bags or 49 bushels: second lot on the 27th containing 14 bags or 51 bushels: on the 5 Bth 14 baga or 51$ bushels:' July latr 16 bags or 51^ bushels. Gave receipt of the 23rd and.2Bth. Qnthe2Bth June (the third.delivery) asked him if he had any more: he said yes, and we closed the bargain: said to him%t the same time 'the bats I am buying now I will pay you cash for, the other is Wright's.' He. afterwards brought the oats purchased bly me and went away: he cam« back shortly afterwardiand asked what about the oats sold to Wright;" Told him they were bought on account of Wright and he would hive to look to him for payment. S: > i Cross-examined: did not tell Hpldaway that Wright was to pay for them" until the whole of Wright's oats were delivered. .

Re-examined: ToH' Holdaway verbally, ihey ;1 were receiving it t«i accountjof Wrights ; This closed the case For the defence.•>■, • ''' Mr. Kingdon then briefly addressed the jury for the defendant, followed by Mr; Adams for the plaintiff: after which his Honor, summed up, going very minutely over the whole of the ' evidence. The jury after*an absence of little more than an hour returned into Court with a verdict for the plaintiff for the amount claimed. Costs '.£7l6s. " . X '?.'■■■■ ■•'■■■■ .-..■.■'.- The defendant stated that he should make an appeal at the next sittiLg of the Supreme CourK C. L. Mason y. G. Hooper and Co. An action to recover the sum of £61 ss. for "work performed. Mr. Connell for plaintiff and Mr. Adams for defendants.. , . ■ : A set-off was put in and admitted amounting to £3710 d., thereby reducing the claim to £14 4s. 2d. .."."• C. L. Mason sworn: Am plaintiff in this action, * and was employed to erect a mud wall for a malt house. (The tender was here put uv and read as evidence.) ' "Worked until the contract was broken by defendants ? have done mud work before: have charged for it. at per yard: by the word, yard he meant nine feet long, one,foot high* and one foot thick, and have been paid for it in that way: have never been disputed in the payment of that measurement only once: 4s. per yard (per nine cubic feet) is a low price: have got as much as 7s; per yard. '. \. / :,~ r . ■...'. . : : Cross-examined: When he made the agreement he said he would do it for less if only 18 inches thibk, meaning by that that he would cost them as much per yard: 1 have not since leaving off the work offered to give, a three months' bill for what the defendants called the balance due to them. Robert Aitken asked him to do so, but I told him I would see him blow'd first. I never sent in another tender but the one produced: one waa written, which I signed. John Woodhiouse sworn: I have been engagedin the building of mud work and have put up several buildings. I have read the words in the tender and call it nine cubic feet. I have always been > paid for mud work according to that measurement. If a two-foot wall, double, and have been paid according to that measurement at the rate of ss. per yard. Benjamin Gill sworri: I have been in the habit ot erecting mud-work in the Wairau, and think 4s. per yard or 9 cubic feet as before stated to be a reasonable price. Mr. Adams for the defence called Thomas Brunner, surveyor, who after being had he been called upon to measure the work! he should have treated the word yard as superfi* cial measurement. Several other witnesses were examined who ■ gave similar evidence. . Robert Aitken sworn; I made an arrangement with Mason for building the walls, and the paper marked No. 2 wa» the tender accepted, and the building commenced accordingly; Mason read the agreement to me, which he wrote, with the word square in it, and believed it to be an exact copy of the original. # Mason never objected to the. word square being in it. After the work was done an account was sent him, in which he was credited £25 6s. for beer, dated 25th May 1860. He said he would call down and give me an acceptance for the balance due; William Corpe sworn: I ani clerk in the brewery j had some conversation with Mason relative to the work^ done, and told him he thought the account'was incorrect. Mason replied "I have done Robert this time, for in coppying the agreement, instead of writing square yarc he had left out square and only put in yard, which Mr. • Aitken did not notice.! 1 ' : -This conversationl _wafl.■.;,-;; about three months ago, alter the work was done. Verdict for the (Mendauts—£ll 13?. 4d., costs £9 fe.