MAGISTRATE'S COURT, CAMBRIDGE.

Waikato Argus, Volume V, Issue 325, 9 August 1898, Page 4

MAGISTRATE'S COURT, CAMBRIDGE.

•> ■ Friday, August s.—(Before Capt, Jackson, S.M.) CIVII- CASE. W. 11. Wkioiit v. Taos. Wells : Claim balance due on promissory note. The defendant put in a counter claim for £7 Is 3d, shortage in delivery of chaff. Mr R. W. Dyer appeared for the plaintiff, and Mr W. F. Buckland for defendant. Mr Dyer said he understood that n was admitted that the promissory note was gheu and dishonored. There could, therefore be no defence, unless it was proved that fraud had been perpetrated in obtaining it. As defendant had a counter claim, it would be for him to open the case as if he were pKintiff. Mr Bucklaud admitted the giving of the note, also the dishonoring of it, but his client had forwarded to the plaintitf the sum of the note less his counter claim for £7 Is 3d. He then bin fly stated the facts which he proposed to establish by evidence. Thomas Wells being sworn deposed that his agent, Mr Forbes, prior to end of February had bought from Mr Wiight the contents of four stacks of oaten hay to be cut into chaff. About the end of February it was arranged that payment should be by promissary note, each to pay half the cost of discounting. To decide as to the actual weight of the stacks, plaintiff suggested that each should employ a competent man to estimate the weight. He (defendant) was averse to this and desired to leave the final adjustment till the actual weights were ascertained. Mr Wright objected. Up to this time Wright had led him to believe that the stacks were of equal weight, viz., Nos. 1 and 3 ten tons each, and Nos. 2 and 4 23 tons each. On February 26th plaintiff made a proposal to the South British for insurance, and stated the weights as above. At very considerable inconvenience had one of each set of stacks cut. Nos. 1 and 2 were cut and delivered, the weight being 29 tons 18 cwt. Mr Wright had given him to understand that the sets of stacks were of equal weight, viz., 33 tons. When he had ascertained the weight of stacks Nos. 1 and 2 near enough to calculate by, Mr Wright came to him to arrange for settlement. It was agreed that he should credit plaintiff with the amount coming to him for the four stacks in his account and send him a promissory note for the balance. Up to this time he (witness) understood the sets of stacks to be equal. When, however, they came to settle Wright said the Btacks not cut were much heavier than those cut, by some six or seven tons. He demurred to this estimate, as the object of cutting the stacks was to get the weight of the other two. There was a good deal of talk, and, recognising that Mr Wright was about to leave the district, ho agreed to settle on Mr Wright's estimate of 35 tons. He had great faith in plaintiff's ability to judge the weight of the stacks and had also great faith in his integrity. The Magistrate said it was a pity the parties had quarrelled. Defendant said if he had got a line from Wright the ""matter would have settled. He would sooner have lost the money ten times over than gone to law, but he could not stand, being treated with contempt. This was the first time he had ever been defendant in the Court. At the end of March he had made up Mr Wright's account, which showed a balance of £l6O 4s 2d to his credit. He sent with the account two promissory notes for £BO 2s Id each. This was intended to be a final settlement of the account. A. small charge for insurance was found to be omitted ; this had since been paid. At the end of April he had No. 4 stack cut ; it turned out 22 tons llcwt 2qrs 71b ; No. 3 stack weighed 9 tons hewt 3qrs 161 b, making a total of 32 tons, 4cwt lqr 231 b, being less by 2 tons 16cwt 2qrs, than he had paid for ; this, at 50s per ton, equals £7 Is 3d, the amount he claimed. Wrote Mr Wright on June 14 (letter produced, and some other correspondence was now handed in.) The first P.N. tell due in June, and was met; the second fell due on 15th July. Up to a day or two before this was due Mr Wright had not replied to either of his three letters, neither had he called to see him (witness), although he had been in Cambridge. On July 12 wrote stating he wanted an answer that he (Wiight) would pay him £6 10s before he met the bill on the 15th, and that, failing getting such promise, he would be obliged to return his bill uupaid. Drew on Mr Wright for £6 10s, but he refused the draft. He then instructed the Bank to return the bill unpaid, but to send with it £73 12s Id to Mr Wright's order, being amouut of bill less difference in dispute. His counter claim is £7 Is 3d, was made up as follows : Chaff short delivered, £5 7s 6d ; half insurance premium, £1 2s 6d, and, in looking into the matter, he had found that his man had omitted the tare on eacks, that makes up the sum of £7 Is 3d. By Mr Dyer : The original arrangement was to include £3 per ton for cutting and delivery. Returned from the South at end of February. Denied that shortly after bis return Wright said to him that he (witness) must get the chaff cut and get it away. Had not said that if Forbes had not given his word he would sec the chaff to the devil,-or that he (Wright) could take it to the devil. Did not recollect sayiDg to Wright that he could not do with the chaff. Did not know of an arrangement with Forbes that the chaff was to be cut on or before April Ist. Understood from Forbes that Wright could not deliver it when he (Forbes) wanted it. That was before his return from the South. Denied that Wright and he agreed to get Messrs Allwill and Baldwin to estimate the weights of these sticks. Did not mention Baldwin's name to be appointed either for Wright or himself. Talked of getting them several times, but never got further than talk. Had no recollection of Wright saying he had got Baldwin and Allwill to estimate the weight of the stacks, or that Baldwin put the weight at 78 tons and Allwill at 66 tons. The last week in March Wright had the stacks, Nos. 1 and 2, cut, and they had the returns when they had ■a settlement, about the 25th March, and it was made on that basis. The settlement was not made on the basis that one ton should be taken from the estimate of Mr Allwill. Did not agree to a settlement on a basis of 65 toDs. Did agree to a settlement on the assumption that the two stacks Nos. 3 and 4 contaiued 35 tons. Did not tell Wright that if there was a couple of tons one way or the other they would say nothing about it, neither did Wright make such a remark. The two stacks cut were to form a basis for the other two. He added live tons to them entirely on Wright's representation, although he (Wright) had repeatedly told him before that each set of stacks contained a similar amount. The total tonnage insured was 66 tor the four stacks. Mr Allwill cut the two stacks When Mr Wiight left the district he had sole charge of the stacks Nos. 3 and 4. The sellers, buyers and merchants all accepted the railway weights. Mr Wright did not object to the railway weights, but he did not want anything left over. After Wright left there were _ a few sheep in the paddock in which stacks Nos. 3 and 4 were left, but he did not notice that they had done any damage. The reason they each agreed to pay half the insurance was not because he was to take the risk after Ist April. He did not remember if Mr Wright wanted to insure for a month instead of three months. By the Court: When he settled with Wright he did not expect to have to reopen the matter, for he felt there would be a sufficiency and of a similar quality. The settlement was intended to be a final one,

Arthur St. George Forbes deposed he was in Mr Wells' employ. He made an arrangement with Mr Wright to buy chaff in January last. He agreed to take nil he (Wright) had at £3 per ton. Wiight wanted the whole of it delivered before April ; but he said he could not take the whole by that time. Jn Februiry he (witness) wanted chaff ; but Wright said his was not fit to cut then. Wrisrht had tho two first stacks cut. His object in having it cut was to get the approximate weights of stacks No. 3 and 4. The amount delivered from these stacks was 32 tons 3 cwt. The custom here is to buy chaff of first-class quality to be delivered within a certain time, and to be roped and sheeted on the trucks, and?' take the railway weights for averagiug the weights t«f any odd sacks. By the Court : Had spoken to Wrijht in Paeroa about the matter ; told him the chaff was three tons short. He said that was not much considering the time it had been in the stack, and he would not make any allowance. In a second conversation he had with Wright, he (Wright) said lie was going to Cambridge, ami he would see Wells. By Mr Dyer : When he was talking to Wright it was about the deduction and not about insurance. It was not the custom t« make an extra allowance to those who kept their chaff longer than usual. He had not been present when there was any conversation between Wells and Wright, since stacks Nos. 1 and 2 were cut. This was the first chaff be bought for Mr Wells that season. -. That concluded the evidence on Mr Wells' behalf. Mr Dyer then addressed the Court, and called Walter Henry Wright, who deposed : Remembered Forbes about the sale of chaff, he believed some time in December. He met Forbes in Kerr's Hotel and sold him the chaff at £3 per ton, to be delivered on or before Ist April, 1898, at either Cambridge or Hautapu Station. The sale was for about 80 tons. The crop was then growing, The second week in January h? went to Paeroa and there met Forbes. He asked how he got on with the chaff, and Forbes said he had placed 50 tons with one man and 30 with another, and he hoped he (Wright) had the full SO tons. He (witness) said as the weather then was it would not run more than 60 tons. In February Forbes told him to get the chaff cut, but he declined, as it would heat in the bags. After that he sold his farm, and he saw Forbes aud told him the stuff was ready to cut. He (Forbes) said he could take it the following week, but he afterwards told him he could pot take it, and he (witness) had to stop Allwill coming to cut it. That was repeated, and then he saw Wells and told him the chaff must be cleared by Ist April. He (Wells) said he would try and place it after Forbes had been his Paeroa trip, but when that time came Wells said they would have to come to some arrangement, as he could not take delivery by Ist April. He left it for Wells to appoint some one to value it, as he (witness) had put his valuation upon it by the amount it was insured for. They then agreed to appoint two valuers, and Mr Wells appointed Baldwin, and he did likewise with Allwill. At Wells' request he saw them both and asked them to estimate the quantities in the four stacks. Wells wanted stacks Nos. 1 and 2 cut in the 17-acre paddock, and Baldwin did the work. He did not have those stacks cut to form a basis for estimating the weights of the remaining stacks. The reason the four stacks were not cut was because Wells had not bags aud could not take delivery ; otherwise, the whole of them would have been »ut straight away. The full weight of stacks Nos. 1 and 2 was 30 ton 3cwt, and of that Wells had 27 tons 17cwt. The reason they had to reckon the amount up was in order that they could pay Baldwin for the cutting. He told Wells that Baldwin estimated the stacks to contain 78 tons, and Allwill 66 tons, but he thought the former was clean out of it. Then came the settlement. Wells asked how they were to get at the value of stacks Nos. 3 and 4. Witness said he still maintained his valuation of 66 tons for the lot. The reasons he gave were that Nos. 1 and 2 were cut from 17 acres; Nos. 3 and 4 were from a paddock of 20 acres, which he considered would honestly return live tons extra, for it was a much better crop than that on the 17 acres. Wells accepted witness' estimate when he came down a ton on the lowest estimate (Allwill's), thus making it 35 tons for Nos. 3 and 4, and said if there were two tons over or under nothing more would be heard altut it. The settlement was to be made by three months' bills, aud wituess was to be allowed half the discount. He never dreamt the matter would ever be re-opened If it had been ten tons overweight he should not have made any claim against Wells. When Wells made an application for 2 tous 3 cwt. short chaff he took no notice of it. Forbes brought him a bill for insurance, and he paid it. Wells suggested getting the weight of the chaff from the weighbridge, but he (witness) said the time for delivery was Ist April and they must have a settlement. He knew the longer he held it the less it would weigh. One load of sheaves was taker, from the 17 acre paddock and used to top up the stack in the 20 acre one. By Mr Buckland : He thought the amount he estimated for insurance a good one. The stacks Nos. 1 and 2 were ready when they were cut, but they had barely finished sweatina. By Mr Dyer : For insurance purposes he estimated the four stacks to contain 66 tons. Harry Kerr deposed he was a hotelkeeper, residing at Cambridge. He remembered a conversation between Wright and Forbes relative to the purchase of some chaff. Wright asked Forbes it he could do with some chaff. Forbes asked how much he had to sell, and Wright said about 80 tons or between 70 and 80. Forbes agreed to take it at £3 a ton delivered on the truck at Hautapu Station, or at Cambridge by April. He (witness) thought it was by Ist April, but could not swear to it. Samuel Baldwin deposed that he was an engineer. He worked his own chaffcutting machine and had been in business about five years. He went round the stacks with Wright and estimated them at 78 tons. The longer they remained in the stack the more Wright would lose, until they had finished sweating. He was valuing the stacks for the purpose of a probable sale aud was not paid for it. Jared Allwill deposed that he was a farmer living at Hautapu. He had often seen the crop as he rode past the pro perty, and could form a tolerably true estimate of what it would yield. He was asked to value the stacks ; but before he had an opportunity of doing so, two of them had been cut. He could give an estimate for what he had seen and thought it might yield 70 tons ; but put it down at 60. He was called in to cut the crop and thought they would have cut the whole of it. He cut one suck about the 30th April and the other on the 17th May. He made no valuation of the stacks themselves. William Morgan said he was a farmer living at Karapiro. He reaped the 20 acre paddock and his man the 17 acres, for which he was paid at per acre. He considered the 20 acre crop was better than tho smaller one ; but the difference was not great. He would estimate the 17 acres at 30 tons and the 20 acres at 35. Martin Butler said he resided at Hautapu. He drilled in the 20 acre paddock, the register on the drill made the area 19jJ acres. He had seen sheep in the paddock, and fancied he could see where they had pulled a corner off one of the stacks. This concluded the evidence, and the solicitors engaged were abont to address.