Untitled

West Coast Times, Issue 359, 16 November 1866, Page 7

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did, not think so, especially when the owners were present. (A letter was then produced and read, the receipt of which plaintiff acknowledged. It merely informed plaintiff of the non-fulfilment of purchase by Morison, Law and Co., and asking for information as to further proceedings.) Witness received the sum of L 175 15s, and had given an exceptional receipt. When he discovered that the hull was not mentioned in the account sales he remonstrated with defendant thereupon. He recollected the conditions of sale having been read, but he witness had never agreed to same. His directions were to sell for cash. He remembered one condition, to the effect that if any dispute arose as to the purchaser, i &c, the lot was to be resold. He did not I object to the conditions when they were being read, as he thought they could not over-i ide the instructions given by him to defendant. He was certain that when Mr Fordyce repudiated the first purchase that he had never either directly or. indirectly authorised the second sale of the a.s. Thane. He had merely employed defendant as his agent. Witness heard the bid at the sale, it was knocked down to Messrs Moriaon, Law, and Co. Commission at the rate of 2£ per cent, was charged in the account sales on L 192 lls 6d ; there is no commission on the fiist lot. He recollected the defendant having said, that if he (witness) would give him the sale that he would aliow him a return of 2h per cent, commission. He knew that the usual commission was 5 per cent. He did not object specially to the bid of Messrs Morison, Law, and Co., but he did not know at the time he objected that the bid was theirs ; he km w full well that Mr Fordyce was acting manager for Morison, Law, and Co. at Greymouth, but it did not follow, that because he waa acting in such a capacity that the bid was made on account of them. Witness made his claim on the evening of ' the 24th ultimo. He recollected the vessel being sold the second time, Mr Joseph Kilgour became the purchaser. He (witness) did on that occasion suggest the advisability of taking an IOU., to secure the purchase. To Mr Ress. — He had received the letter produced in an envelope, in which the account sales wire also enclosed. He was certain that upon his complaining to defendant about the disobedience of his instructions, that he (defendant) replied, "That it was all right, and he should have a cheque for the nett proceeds." C. D. A. Friedlein was then called, and being sworn, deposed that he was accountant to the West Coast Times newspaper. Witness was then asked whether he produced a document he had been subpoenaed to lay before the Court. He replied that he had not, and was proceeding to give an explanation, when his Worship somewhat abruptly stopped him. (In a subsequent stage of the proceedings it turned out that the explanation was most necessary.) J. M'Farlane was then called, and on being sworn, deposed that he knew the plaintiff and defendant. He had a distinct recollection of the sale of the s.s Thane. He was present when a conversation occurred between plaintiff and defendant. He remembered plaintiff authorising the defendant to sell the vessel. He could not say that the general instructions were to sell for cash ; but at the sale he distinctly heard plaintiff bay that a deposit on each purchase should be taken. This was with reference to the first lot—^ that is, the lot for which the plaintiff now claimed to recover. By Mr Harvey — He was sure plaintiff had drawn defendant's attention to the necessity of having a deposit Witness had acted as clerk at sale, and had booked the purchase to Messrs Morison, Law & Co. He would swear most positively that plaintiffs objection referred to the first item of the account, the subject matter of the present action. To Mr Rees— lt was always customary to sell a stranded vessel for cash. He had been connected with auctioneering business, and such was his experience. This closed the plaintiff's case. Mr Harvey then moved for a nonsuit, on the grounds that the money having been had and received to the use of the underwriters, that they were the proper persons to sue. Secondly, that the written contract, evidencing the alleged sale, had not been put in evidence. Thirdly, that the account sales showed' that the s.s. Thane had been sold under the directions of Captain Francis, "for whom it might concern." Fourthly, that the defendant had acted in the capacity of an agent, and that he had done all things necessary by disclosing his principal. Mr Rees rose to reply, when his Worship remarked that it was unnecessary, and requested that the defence might be proceeded with, but he would take a note of the points. Mr Harvey then addressed the court for the defence, and called David Girdwood, who, on being sworn, deposed that he was defendant in the present action. He resided at Greymouth, and was aii auctioneer. He knew the plaintiff, and remembered having received instructions from him for the sale of the s.s. Thane. The sale was to be for cash, but the conditions of sale were read out by him on board the vessel — one condition reserved the right of demanding a deposit to the auctioneer. Plaintiff never actually concurred in the conditions of sale, but he was present -when they were-read out, and offered no objection. The gear, sparsj &c, were divided into three Jots. Mr Fordyce became the purchaser of the first lot on account of Morison, Law and Co., at least he had booked it to them. Plaintiff did not recommend getting a deposit on the second lot. He had ananged with plaintiff to sell at 5 per cent, and had promised him a return of 2h if he desired it. He had seen Mr Fordyce, and he had stated that the purchase of the p.s. Thane had been made on his own account. When he witness found that the original purchaser repudiated his bargain he saw plaintiff, and it was mutually agreed between them that the vessel should be sold at the risk of the original purchaser. On the occasion of the second sale she realised L3O. Mr Kilgour was the purchaser. The reason that the line had been drawn under the first item of the account produced was (as the letter explained) in consequence of the non-completion of the first sale. Witness had never received a penny of the first sale, the amount now claimed by plaintiff. By Mr Rees— On the 19th October he received instructions from plaintiff. The reason he did not go to Captain Francis in the first instance was because he knew that plaintiff had something to do with the vessel. He wrote the letter produced because he could not act on plaintiff's instructions. He recognised plaintiff merely as the agent of Captain Francis. He was certain that he received his instructions to re-sell the a.s. Thane from Captain Francis. Witness never rendered any account sales to Francis. He had not rendered any account sales of the second sale up to the present time. He would not deny having been instructed by plaintiff, on the occasion of the first sale, to sell for cash. He did not think it necessary to demand cash for a bid of Messrs Morison, Law and Co. He did not deem it necessary to include the amount realised on second sale in

general account. He could uot say whcnMr Fordyce bid, that he did so for Morison, Law and Co., but he believed he did. Captain Francis had since gone to Nelson. He never saw Captain Francis after the receipt of a letter from plaintiff's legal adviser. This closed the defence. Mr Harvey then addressed the Court, dwelling upon the circumstances of the plaintiff not having sued the purchasers, namely, Messrs Morison, Law, and Co., and having selected th» wrong party, in the person of the auctioneer. Mr Rees, in a very able speech, replied at great length, and his Worship said that he was of opinion that the principal in the matter was Captain Francis, and not pla'ntiff, and the judgment would therefore be for the defendant, with costs. A few uudefended cases were then heard and disposed of, and the balance postponed till next Tuesday morning at the usual hour. The Court was thin adjourned till 11 a.m. to-morrow (this day).