MAGISTRATE'S COURT.

Wairarapa Age, Volume XXXI, Issue 9041, 6 March 1908, Page 6

MAGISTRATE'S COURT.

MASTERTON—THURSDAY

(Before Mr W. P. James, S'.M.) UNDEFENDED CLAIMS. Judgment for plaintiffs by default was given by Mr W. P. James, S.M., at a civil sitting of the S.M. Court, held at Masierton, yesterday morning:—W. H. C. Swan v. Catherine Harvoy, claim £3 2s, costs £1 2s 6d; P. J. O'Leary v. J. Tinslty, claim £7 12s, costs £1 3s (3d; P. L. Boilings v. J. Burling, claim £6 8s; costs 8s; Thomas Ray v. Albert Jones, claim £1 12s, costs 10s; J. L. Murray, v. James Brown, alias James Groves, clairi] £1 15s 3d, costs-ss; Fly and Young v. Thomas Rae, claim £1 UK oests 14s; H. J. O'Leary v. Edward Coyle, claim £4 12s Od, costs 10s; George Heron v. John Tinsley, claim £l3 3s Bd, costs 15s; Bunny and Doian v. John Kennedy, claim £3 3s, costs 10s; E. H. Wadding ton v. Arthur Nicol, claim £2, costs 10s; Donald Wilkinson v. Kenny McKenzie, claim £l3 10s, costs £1 12s 6d. JUDGMENT SUMMONSES.

In the judgment summons case, Hugh Rae v. T. Pareone, a native, no order was made. In the judgment summons case A. R. Maltby v. Alfred E. Smith, amount of debt £3 12s Od, debtor, who did not appear, was ordered to pay forthwith, in default seven days' imprisonment, order to bo suspended for fourteen days. A similar course was followed in a judgment summons case, J. Bacovitch v. A. C. McDonnell, debt £l9 Is Sd, except, that the alternate to non-pay-ment was fixed at nineteen clays.

DEFENDED CASES

UNPAID BALANCE OF ACCOUNT,

Alfred Southy (Mr H. C. L. Robinson) sued George White (Mr P. L. Hollings) lor £l, balance due on a quantity of onions purchased. Counsel for plaintiff said he had omitted to notify his client that the case was to Le heard to-day, and consequently plaintiff was not present. Defendant, however, was cross-exam-ined by Mr Robinson. The defence was that defendant had paid the full market price for the value of the onions, and no agreement as to price was made prior to the sale. A nonsuit, with £1 2s 6d costs, was entered.

ALLEGED BREACH OP CONTRACT.

H. Evans and B. Rayner, farmer, sued Jacob W. Compton, farmer, for £2OO damages for alleged breach of a contract to clear certain land at Kakare, Waingawa, of gorse, etc.

Dr. Trimble appeared for plaintiff, and Vr P. L. Hollings for defendant. In outlining the case counsel for plaintiff stated that in 1906 defendant owned 395 acres on Taratahi. In January of that year plaintiff Evans was treating with defendant for the purchase of the land. On the farm were about fifty acres of gorse, a serious detriment to the property, and to induce plaintiff to purchase defendant agreed, in writing, to cut and grub the land, plaintiff, on his part, agreeing to pay £IOO and 10 per cent, in addition on plaintiff Evans re-sell-ing the property. Defendant had cut a very small patch of gorse—only a few yards, in fact —and had practically left the work agreed to be bis done uncompleted. The claim had been purposely limited to £2OO to bring it within the jurisdiction, although the actual damage to plaintiff, and to his mortgagee, Mr Benjamin Rayner, co-plaintiff, who had subsequently to take over the property, was actually much greater. H. Evans, plaintiff, deposed to the main facts as outlined by.his counsel., Witness paid a deposit of £SO at the outset of the negotiation? for purchase of the land, and but for the agreement to clear the land he would have forfeited this deposit rather than complete the puchrase. Defendant had only cut two or three square yards of gorse with a slasher. Up to May Ist, 1906, defendant had done no more than about an hour and a half's work in clearing. In May witness sold to Mr B. Rayner, assigning his rights under the contract to Rayner, informing defendant of the fact. Defendant replied that he did not intend to carry out the contract, and that witness had no to assign the contract. Five months would have been a reasonable time to have completed the contract in.

By Mr Hollings: Did not agree with the agents that if the property were re-sold by witness the agreement would no longer bind the partief. Witness had not paid the .£IOO to defendant agreed to be paid under the contract as defendant had r.ut completed his contract. Benjamin Rayner, joined as a coplaintiff in the action as assignee of .'.he property, the subject of the contract, deposed to giving notice to defendant of the contract. Had plaintiff completed his contract the property would have been greatly enhanced in value, and witness might never have become the owner of it. ffc would have cost probably £4OO to clear the gorse, and this witness had toicl Compton. Ky Mr Hollings: Witness had

. ;!i\>rr>d to accept £A() as a settlement nt' the ehirn rather than have any mother over tin contract. The delay mi making the present claim was • iiussrl through a desire on plaintiff's .i.'irh to give defendant time either to vjttla the matter in some way or do Mi.-.- work.

John Kilmister, farmer, of East laratahi, deposed that it would cost -bout £8 per acre to clear the land on !he property concerned. F. K. Hasslett also gave evidence as to the estimated cost of sloughing the land. This closed plaintiff's case.

Mr Hollings, in opening for de-

■'mdant, submitted various points of aw in support of the proposition that the contract was not one which could ha enforced, and also that plaintif !{a.yner had no locus standi. Counsel ih'o argued that there was a verbal agreement between the vendors on lehalf of defendant and plaintiff' that f the property were subsequently -old by plaintiff the agreement would lot be inforced.

Jacob W. Compton, defendant, in evidence, stated that Mr Harry Perry irepared the agreement between vitness and plaintiff. The underhanding at the time of thp I rawing up of the contract was that if the property were re-sold by

Evans the work was not to be done. Witness would not have bigned the agreement but for this verbal condition. Gave plaintiff no authority to assign the contract.

By Dr. Trimble: No time was fixed in the agreement when the work should be commenced, but had the property not been sold the work would have been commenced in the middle of winter. Witness left his i plough on the property, ready to-com-mence the work, but on learning that the property was sold took it away. George 11. Perry said he acted as agent i'or Compton in the sale to Evan's in 1906. Evans became dissatisfied after he had paid his deposit, because of the gorse being more extensive than he had thought. Evans put the property into witness's hands to re-sell. It was distinctly understood by both parties that the agreement was to be torn up if Evans sold. By Dr. Trimble: Witness's object in drawing up the agreement was to see that both parties acted up to the agreement entered into by them that there was something in writing to show this agreement. Re-examined by Mr Boilings: It was never contemplated that a third party was to get the benefit of the agreement. This concluded, the evidence, and the case was adjourned until Wednesday next for counsel to argue points of law.

STATUTE OF LIMITATIONS. The Statute of Limitations was the defence raised in a civil action, before Mr W. P. James, S.M., at the Magistrate's Court at Masterton, yesterday afternoon. The claim was one made by Thomas Wagg against Donald and Son for the sum of £ll 9s alleged to be due for a woolpress manufactured to defendant's order.

Mr Hollings, for defendant, said that two other claims made by each party against the other had been the cause of some dispute between the parties, and it was suggested to refer the three matters to arbitration.

The Magistrate said it was better to allow the matter to go to arbitration.

Mr Rollings said he wished the claim before the Court to be tried on its merits.

Plaintiff gave evidence to the effect that since March, 1902, defendant had asked to have tha amount in dispute set off against an account he alleged witness owed him. Witness, however, said he had a still larger amount owing to him by defendant. . Mr Robinson, for defendant, said the claim was made the day prior to Mr Donald's leaving for a crip to Sydney, and contended it was so made in the hope that he would pay it without dispute. A nonsuit was entered, without costs, the Magistrate observing that he never allowed costs where the Statute of Limitations was pleaded.