SUPREME COURT.

Taranaki Daily News, Volume LI, Issue 237, 30 September 1908, Page 4

SUPREME COURT.

X£\V. MAiIWIII, TUESDAY. tUeiore His llinmr ill'. Justice Lkuuistuii). UAMDLOIiII AMU L'KNAMX. i'lic case oi Jaiiie.-i v. U oud, c.laini fur for alleged I resumed, .Mr. (Jnilii,<m app".inn;; lor the plaintiH' and .Mr FitziierJjert for defendant. Arthur 11. Buchanan, manager of tlf lla'weia UraiiL-ij of (lie Aiw /calami, Loan and Mercantile Agency Co., stated til.it his company held a bill of sail payable 011 demand, over some of ti. It's cuttle. Witness was informed iiy (ieorge Wood, defendant's brother, that defendant liad placed a bailiff in charge of plaintiffs' farm, and Wood gavo him a friendly word of advice that trouble was brewing. Witness sent for James, whom lie saw 011 April Sth, and, who informed him of the payment of Tent, also 'that defendant had been informed by g solicitor that the re-entry' was illegal. Tliie outcome of the converbation was that a clearing sale was decided 011, and the sale "was held on July 2-Jth. The cattle realised UM) odd less than the amount of the bill of sale. To llr. Fitzherbert: lie did not know how manycatt* were sold; in fact, he ■was not aware of the whole of the. details.

His Honor remarked that the method adopted by the plaintiff in. proving iiis special damages was very loose. The ■bill of sale and all documents in the transaction should haw I wen produced. Plaintiff claimed to have suffered a specific loss irorn this narticular transaction, but the particulars of the thing were not available.

Cross-examination continued: Plaintiff had neither asked nor received permission to remove any cattle from ,t'.ie farm, or to sell them.

A Copy of the bill of sale was produced, showing that the security was given j •over the whole of the stock on Miej ■laj'm. or the progeny of the stock on. the farm.

His Honor remarked that tin- plaintiff had, in the cuttle aL auction in •April, really sold another mail's pro--, perty.

■ Sir. Quitliam Mid the plaintill' was probably not possessed o£ the 'tecliieal knowledge of this. Keplyinj; to his Honor, the witness feiiid tliaf the relations between plaiii-i tiff ajid the firm would doubtless have been altered had he known that the, plaintiff liad removed and sold some of the stoek given to the linn as security ■for the advance. "

To. Air. FltzhierWt: -He did not know, until April that the rent was overdue. •The date of the sale was lixed early in duly, probably attvr learning that the second half year's rent nvas unpaid. July was not the uiost advantageous time for the sale. To Mr. Quilliani: At the interview ;n

April plaintiff told him lie had sold, some of the stock in order to get money for the rent. His 'Honor remarked that the sale of the stock held under tl» bill of sale was a matter which he thought might, very well have been dealt with in aa-, other branch of this Court. The plaintiff was re-called. ,He said he understood that only the stock mentioned in the schedule came under the bill of sale. He signed the document without reading it. The document was presented to him for signature by Mr. Tonka at ilanaia after an ordinary

stock sale. 'Mr. T-onks remarked. "Of course, you <au read it if you liko, JViwes, but it's just the ordinary bill

of eale." He had previously given a bill of sale at d'ahiatua. but only upon the cattle mentioned in thi ; schedule

He would not have sold the stock hal he klwiHTi of the aature of the .bill of

A\. K. Howitt, storekeeper at Awaj tuna Kasl, said be knew of the locking, of lift' gates. It was common, know ledge in the district. Up till that time he had been willing to trust him. "l'o Mr. Fitzherberi: Befure the distress he had pressed plaintiff for a, cheque. But for the distress he would, | not have stopped plaintill's credit. ' 'JIV. Fitzheroert submitted that there was no case to go to the jury. This was a case Jor tie-spass. The plaintiff, had cross-examination that the defendant was in lawful possession, on 17th March.

This statement was challenged by Jfr. QuUliam. His Honor .said he lmd not understood such all admission, but the plaintiffs (U missions were very vague. .Mr. 1 ilzherbert claimed that there was joint occupation :bv plaintiff an<|j defendant.

His Honor: This did not giw him Ui£ right to lock the gates. His Honor further remarked that the whole case .was that the plaintiff claimed £5Ol damages for injury to his credit by the act of defendant in locking the gates. Mr. Quilliam contended that there was a distress, ibecanse defendant had appointed a bailiff who was in charge of the farm for a week. Has Honor said this was absurd, for ■the man could have taken an axe ai'dl knocked the locks off tire gates. 'lt; was ridiculous to say that the mail had been honestly prevented from leaving! the farm. The plaintiff hud by a trick Mid the amount of rent due" without trie defendant knowing of tine- payment, altlKiuph the latter was living in the .same house. The excuse tiiat he was afraid the defendant would have refus-' ed this amount, if tciuh ied, might hold I water.'but that was for the jury. The I plaintiff anticipated the re-entry by defendant, yet lie allowed him to lock up the farm, and then called it a tresJ .pass! It was to him ridiculous that! dames, mi owing hp hmd paid the rent, and tliat h<> owed nothing, should have I submitted for a week to a paper block-| ade. and then come to ask a jury for snlnstantial damages. Those locks Were put on by the defendant in the honest! and proper belief that 'the rent was still' owfing. and they were kept on only until, ■it had been ascertained the money iuulj been paid.

'.Mr. Fitzlierbert's application for a, non-suit was over-ruled, and he pro. ceeded with his, defence, tlie outline ofi .which slmwn! tbat lie relied on defend* ant's staU'inent that re-entry was made ■on March 17th and that the plaintifl] knew of it. He tlien proceeded to call evidence.

i Richard Wood. the defendant, ;i farmer residing at Folding, stated that his ■request that defendant should remit the ■rent to his credit to his tank at Feild•in# was made* became he was leaving en. a holiday. When he returned 'lie found 4hat. no money had ibeen pnid in. lie ■waited till January 14th, and then telegraphed to phuntitf asking what 1 Denied any conversation in •February iji wliich a suggestion was ■made that in the event of",a. sale of the property claim for rent should he waived. Plaintiff had him a cheque ■for on accent of the rent, an:]| aUo «ivt'n liini authority to raise the balance of the due amount on •Paliiatua property. Xext day he in-

reived ft letter from plaintiff suggesting ■that Im*could make otli'or arrangements. •Ho could not raise the loan, on tli« ■Tahiatua propei'ty. which was in Mrs. James' name. AVitness was then in difficulties. Interest on tin l mortgage was 'due. and lu* eonld not get, the l'ent •to pay it witli. ilte land hi>s l>rotli"r eaini. up to tlie farm, taking with then a 'memorandum of re-entrv. *ome pa 1locks. and a chain. Tlie object <jf the vMt -was to see if h's brother would, l.iiy the property, and practically to reenter. fastening the. fates so that tho wtofk <'Ollld not he taken oil - the farm until the rent was paid. lie did mil tell iplaintiff alxwt this, hut only tlui 4 his hroth'er had coine to see the* place.!

His brother, in the prc-sencc of plaintilT. *aid lie would take I .lie place. Tlii* was the Tc-entry, on 17th March. A conversation took "place wit]) reiVrence In re-grassing after the ibush fires, it being arranged that willies* should stay on the farm to do the grasping. PlaiiLti.T •was 'to continue milking. the proceeds to lie dev-oted to paying the rent ami

keeping things proiujr. Any work done by ithe. plaintiff at the re-prassing was, also to be credited to the rent aeeouut k . iris Honor fcaid tlmi there was n > evidence of re-entry yet. "Witness continued: TJe stayed <»n ?t the hon*e a-* a "working ;ruest." Tiling wiif on harmoniously until 3rd April.l ?He and .Fames went our thai dav tnj •work at ihe <rra-san?. bi*t .fame* work > li only nbmif P (fmuter of nil hour, ;ml' h-fi. ■■'■taViiii' n w;t v all d:M\ iiH about f«»ur .oVl«n-k. 1m \vro ! > t

to plaintiff, slating lie was leaving 'or •«Feliding:. -The same mowihig lie tou.id tliiil. plaintiiU' had been to uni had rsuJd cattle. That cJiauged defendant's plains. On April jth, aI. dinnertinu. j»lamtill* *ai.d to life eldest son. "Hii-pert, when you've iiuished milkiii'*, turn thu V'UWh out dm the Voad/' lMaiu « tili' Ml tlu' table., and weu't tu hU bedroom, >\Jukjt defendant went out audi locked (he yules. Told plaintiff lie had! I looked tin- on aeeounl of the w.iy in >which he had taken stock oil' th ' ■place, and through hi* suggeoliuu uf» ■ tinning the coavs out. Plaintiff made no remark of paid tire ren f . Ikum-d the iawu'r* iellrr oil Ajrili 7th, and that was the Jir-st intimaiiun he had received 'that the rent hud bvc\i paid. Went to Feilding by Ihe lir-l< train available, arriving after banking hours. -Next day. im the 'Jth, lie foundi tin. l rent had been paid. Journeyed 10, Kltluun on the HUH, and went out a-.ul removed the loc-ks 011 the 11th. lie had thi.ll iio further interest in the property. t'roas-examiiuvd by Air. Quilliam When Hi's brothei' lefl 'the farm 111 March there was nothing to show tint, he was to become purchaser of tin; : farm, 'lie could not remember telling i plaintiff that'he.was re-entering. Cou'd, not remember James offering to se!i. -cattle in order to the back rent.; AV<;tuld not fcwear lite oll'er was no'j made.

UoiWge Wood, brother of the last wit- ■ liess, corroborated tliis evidence. | ' This dosed the lease I'or the defence. | liis Honor said there was no sugyes-1 tioii of re-entry, and it was 'pretty clear there hud IteeJl a. trespass. 'i'lie amount of damages was, of course, for the jn< y.i Where seemed to have been a good deal of jike-and-take between the parties Kven if the lent had not ben paid—and lie was not .-satislied with' liie mode of payment —there wa-i a trespass, tor there bad been no re-entry. Addressing) the jury, his tllonor said it was plum, that the plaiutiir liad got ijito debt, and could not ]iay his rent, and that) eventually he agree*! to surrender liis lease iit tJie end oi the term. Defend'ant. appeared to have 'behaved very, decently, up to a certain point. llis| Honor again eritlicised the plaintiff's, "extraordinary trick''in paying the rent; behind the defendant's back. The loel;ing of the gates \'.'as i-ertainJy an illegal act, a.nd as there was trespass proved* tlie defendant was entitled lo <laniages. The jury must, however, allow dainag.'Si only fn> respect of injury arising out/ of this illegal act. It would never do to iiljow ii maw to aggravate his damages, allow hint to stand by and pro-, duee a breach, and then wme and uski ■for damages. ]'t bad been the plainduty of the plaintiff to tell the defendant" thiat he lrad paid the money. Then there would ltave been no distraint, for. the lockiing-up twas for the purpose of getting the rent. The jury might fiud 4 of icourse, th«it a man was .acting honestly in sending tilie money away as lie hadldone, tout it was preposterous to i think that.a man, knowing his rent was, •paid, should go on making damages* There 'was no damage iraused so far a-i the sale of cattle was concerned. The jury might award substantial damages if tiliey thought the plaintill' deserved! it; or nominal damages for a nominal, injury; or if iHiev thought the whole thing had been engineered for the purpose of obtaining damages, then they

could award contemptuous damages;) which were usually represented by llicj smallest coin hi tin* realm. Tlu» jury a,I: 12.15. and returned at 12.;i0 U> ask huw vofts wuuid | lie apportioned. His Honor informed flic foreman tliUt if tliey allowed any damages at all the plaintiff would not be mulcted in posU. Tlif jury returned at 12.52 p.m., when J-lio foreman announced a verdict for tihc ])laintilV for 40s dumuges. 'II in JLunor said lie would not allow: heavy costs, for lie considered the ca«e ct»uld have been 'brought in the MajjistlrateViCuurt. I» his opinion it Was not a projß'r ease to luiv-e !bmi brought in any Court. Costs were granted jus in tito •M'a«i«trate , s lOourt. SELLING A HOUSE,

i Xolan, Tonks and Co. appealed against tile decision of Mr. A. Tur.ibull, S.M., ill regard lo tile sale of a horse. Mr. K. 1). UVI-li appeared for the appellants. Xo appearance of the respondent, Kobert McCJallin, of Hastings. From the pleaitings it appeared that tile appellants had sued the respondent in the K..M. Court at Uawera for the sum of £35 upon a statement of claim that they were auctioneers carrying on business in llawcrn, and t'hat ill September, lilllli, lliey sold a horse at auction at llawcra lo Liu- defendant for £35. The horse was dedelivered, and the auctioneers paid the purchase money to the vendor, but the defendant had not yet paid t'he amount. The case was h.aid by "Mr. A. Turnbull. S.M., in January. ]!)( IS, and judgment was given ia favor of respondent with costs. It was .proved at the hearing that when the respondent had bid up to .£32 10s for t'he horse, he enquired of the auctioneer if the horse were sound, and the owner allirmed that tile horse was sound. Subsequent to the sale the respondent refused to take delivery of the liorse on the ground that the horse was not «ouad. whereas the owner of the animal engaged a vet to examine it. The rel. gare a certificate that tile horse was sound, but tile respondent objected to this oil the ground that the surgeon was not a qualified practitioner. .Subsequently a. qualified vet gave a certilicate of soundness, the examination liein" unknown to the respondent. Then file appellant*, without the knowledge of the respondent, railed t'he liorse lo him at Hastings, posting to him the certificate, which was not received for some time afterwards. Upon the arrival of the horse at Hastings lie was condemned by a veterinary surgeon as ■ unsound owing to disease of Hut slitllc joints of both hind legs. Thereupon I tlxe respondent instructed a liverv stablekeeper to take possession of the ' horse to hold it on behalf of the appellants, and lo apply to them lor inHruetions. The storekeeper took l possession, but at his request the horse was allowed to run in respondent's paddock until it could be sent for. The stableta'per icrote to the aippellants. but the latter were uncertain as to the receipt of the letter. The liorse remained in the paddock of tli'e respondent from the morning of October 2 until next morning, when it •became ill and was removed to tjic

stable*. where it died. The respondent now claimed thai, the Magistrate should have decided, inter alia, the following matters of law: —That at the sale at auction the sale to the respondent and the purchase by him of the hor<e was complete at the fall of tho hammer, and that upon the fall of. the lianmwr there became complete between appellants and respondent a;i unconditional contract for the sale of t'lie horse in a. deliverable state, a;id on the full of the hammer the property passed to the buyer, the respondent: that the undertaking given by diaries Houston, owner of the horse, at the auction was collateral to the rntun' purpose of the contract, the breach of which did not give any right to the respondent to reject the horse or to treat the contract as repudiated; that after the sale tfiore wan an acceptance of the horse by thp respondent, and that, the appellants had been entitled to judgment for the amount of their claim and costs.

Mr. WeNh argned tlu- i|ii;\-timi at s«nnr length and cited numi'ious antlionlies. Hi.' apjH'al was allowed, with eo>U H\o 10s. DISCONTINUANCE. Tlv case Jost'ph Frederick I'ea&e (Mr Wel.-Ji) v. Thomas llidd (Mr. ♦Spiviirr). claim for alleged spoeiliu performance under an agruiMiU'iit for sale and purchase of land ajid damages for withholding transfer. has been discontinued. The Court resumes at 1U o'clock this morning.

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