MAGISTRATE'S COURT.

Taranaki Daily News, 17 April 1918, Page 2

MAGISTRATE'S COURT.

YESTERDAY'S SITTING. (Before Air. A. t.'rooke, IS-11.). > -At the Miiyislratu's Court, New Plymouth, yesterday, before Mr. A. Crooke, S.M., the following cases wero dealt with' CIVIL CASES. Judgment was given lor plaintiff by default in the case of Fanner and llaw •(Mr. A. 11. Johnstone) v. Hugh Karly for £1 9s lid and costs Os. In tiie judgment summons case Edwin VVliittle (Air. J. li. Quilliam) v. Charles McLean an order was made for the payment jf £0 8s Gd on or before April 19, in default seven days' imprisonment. POSSESSION OP MOTOR CYCLE. Siegeamundt Schultz made a claim against Edwin Arthur Elliott for possession of a motor cycle valued at £l3O, which sum was claimed in case possession could not be had, and £a damage for its detention from March 5, 1918, till date of entering plaint. Defendant coun-ter-claimed for £9 ss, being balance due for repairs to motor cycle. Air. C. RStead (VVaitara) appeared for plaintiii and Air. li. Hubehen represented defendant.

Air. Stead said the cycle had been purchased from Winkleman to whom it had been returned a 9 defective. Winkleisaa had sent the 'bicycle to Elliott for repairs, and Elliott had refused to deliver the bicycle to plaintiff. The counterclaim was for £l2 for the original repairs ordered, £3 as extra work (which amount had been paid into court), making £ls ss, less £fi which had been paid under an agreement arrived at between the parties concerned as to payment of the £l2 account.

Siegeamundt Schultz, farmer, xlerekapa, said ho bought the motor cycle from Winkleman in December 1916, with a three months' guarantee. Ee kept the machine for a little while and returned it to Winkleman and asked for his money in terras of the guarantee, because it was defective. AVinkleman refused to recognise the claim. Winkleman took the machine to Elliott for repairs, and said he had done so on witness' behalf. Witness gave no instructions to that effect, and refused to pay for the repairs which were to cost about £l2. His solicitor had made an arrangement by which ho should pay half the cost of repairs (£0). This \va s done, and Elliott gave him possession of the machine, though lie said he was losing £6 by giving up the machine Witness told him that if tile machine ran in good order for three months while in his possession, he would make him a present of the remaining £G. The original arrangement he believed was that Winkleman was to pay the balance of the cost of repairs. He promised Elliott not to let Winkleman know lie had the machine. Elliott took the machine out of his shop and after getting it warmed up handed it to witness arid said "here's your machine." Owing to tlie amount of traffic on the road at the time and being an inexperienced motorist, he did not get on the cycle. Ha

wheeled it about a chain away from the jhop, and then took it back and instructed Elliott to- make certain alterations to the cycle in order to improve it. He left the machine with Elliott, and came back for it in March last. The alterations had been made and were to cost between £2 and £3. He offered to pay the money there and then. Elliott refused to let the machine go out of his shop unless the other £6 owing was paid. Ho instructed his soliictor to take action, as he had been greatly inconvenienced by not having the motor cycle, in not being able to return to his homo in order to attend to the receiving of stock coming on to his place. To Mr. Hutchen: He first saw Elliott in June, 1917, about six months after he bought the machine from Winkleman. No repairs had been made to 4 the machine then. It had been taken to pieces. Elliott did not tell witness he 3- fluid not do any repairs without instructions from witness. He got no written undertaking from Winkleman to pay half the cost of the repairs He offered to pay for the extra repairs he had ordered himself. Chas. R. Stead, solicitor, Waitara, said in July, 1917, plaintiff instructed him to

proceed against Winklemon over the motor cycle concerned in the present action. He was subsequently advised to effect a compromise. In consequence o£ his conversation- with; Winklemafi ho communicated with Elliott and asked if Winkleman paid £C, or agreed in writing- to pay 'that amount, and plaintiff paid the balance, would he agree to hand over tlie cycle. He eventually agreed to that arrangement. He also received Winkleman's consent to the arrangement, On March 5 last defendant refused to abide by the agreement and also to deliver the cycle. He later waited on Elliott and showed him Winkleman's letter consenting his shai'e of the cost of repairs. Defendant tpfuped to deliver the cycle 'because the £0 that Wnkleman had agreed to payhad not been paid. He said plaintiff had undertaken to pay that amount.,. To Mr. Hutchen: He understood that when the agreement as to payment was made the repairs had been effected.

Edwin A. Elliott, motor cycle dealer, "Sew Plymouth, said he received a Triumph motor cycle about the middle of Inst year from Mr. Winkleman for repairs He told Winkleman, however, he would not do any work to it for Winklcinan as he already owed witness a large account He later saw Schultz about, the cycle, who told liim to get. on with the work and guaranteed to pay for it. Witness told liiin it would cost about £l2. The work was done airl an account rendered to Sehultz for tha full amount. There had been some dispute between plaintiff and Winkleman as to who should pay the account. I-fe later received a letter from Mr.. Stead setting out the arrangements for paying the account- A little while after that ■Schulis came and paid £6, for which witness gave a receipt, and got the cycle, which he returned for further repairs. The balance of the money was" 'to be paid by Winkleman. Plaintiff gave his word of honor that if Winkleman did not pay he would. When nlaintiff came back in March last for machine he never mentioned paviii<: v the additional repairs that had Ihv.i ordered and i which were to cost £.'! ss. j To Mr. Stead: He wrote to Schultz lon August 21 stating that the cycle was "cpaired, but that Winkleman had not ' paid for it. He must have seen Winkleman about payment prior to writing that letter. He did not know that the account, for the repairs had been sent o Schult7. on one of his billheads. It vp* referred to in the letter and that *ni»ld be regarded as an account. Whitman had suggested to him that if he