DISTRICT COURT.

Wairarapa Daily Times, Volume 3, Issue 803, 25 June 1881, Page 2

DISTRICT COURT.

MASTERTON FMDAI. [Before His Honor Judge Shaw.] i .'• Thompson v :: Dalrym'ple.—His Honor gave judgment in this ease as follows : " I have to consider.raainly.the.third plea of the defence 'filed—viz.f'th'at no due notice:of thedishonor., of e the■,bi|l sued .qn.was given., The aption. n is-,brought. ; to 'recover . £2B/ 10k' on' f a : Vbfll%)fVwhiqh ; Lahcely I was 1 the''''hiakerV'Dalrym'p]e;.'i;he' p , ayQe,-and!Thompsonfthe:qndqrßer.;t;,;i I he pircumstancea ;.under. were peculiar. ■: There'were finaiicial'tran- !! sactions hetween all ihree a par'ties." ? Pn'4he' ;ment|'was"'; c'6W;''(o'iby? wnifefurtheri ter]d.into and endorsed by Thoropioi

'polphfeed; • Daj||Hte;had bf;!the i : - ( ihe*hlaking.bf 'thei aeconcl in-! ! tended to; operatelasWsubstitute. 1 —Mr' i r ? ted that no notice'had been given of:the dishonor : of " the-Becbnd! note.— His ,: ;flonor,;:iWhetherJt;waßadmittedT)Knot7;; j the Court would rulp -that no -notice was • I given. There .were. ttfa questions i'to be , | considered—l§kJ?hetlie.r..the rnaking pf_: _ I the second note operatedjas^au^tituV! i foivthe first. I ' v i the evidence does not sustain this view. i The two bills"ale7in"7um''aTrdlul3t'alicT,"' . identical-,'and: looking at the fact) Cthat: [ ! interest was added in the second one con- . i .firta^hii|bpM6nXipn*'lfie/alcdnd.qlieTt ■ tion r wliiah 'isithe-main-ground-orth'e '■ defence, - there ris agood r dejd.moi.e.to.;he. said. Mr Skipper. quote&eertain' cases',.' whichl have considered. In one of them i it was he'ldlthat.'ilid.tigKLaraweif'.iapdJ.'en-, ■ :' dorser were fixed with the knowledge .of' [a .:billjfbeo6niin|'{due, ifeverthelesS'-the','' ■krfowle'dge'wss'not.ljotice' inutile sense re-i. qutred by thelaw. '-Thispreaedent.wpuld seem, at first sight, to cover-the present': case, butrthink.the.present_caßecan.be.. distinguished from the one .referred Jo. In the case quotect'there Wfts.ilov'privKy. ! 1 of contract—in the present one there-is. Shortly before the; dishonor # of r Cfio;bill'; i provision wk^madeVfqr. it.: 'also .'for the ■ bill substituted for it. It was. true that tho notice given was antecedent 'to' tlio • i imaturitynpf/thevbilh ,;Balrymple.,was K ' however, ■..cognisant; of; al I,.^reau 1 tai'frand. took care to provide for them; 'Taking all: i circumstances into consideration, and the: fact that the second ; bill' was mde-'for' the.cdhvehience of : Dalrymple,-; I-'fix- him with the'notice/and give- judgment-for the plaintiff.- Mr Skipper an intention, of. v aprjealinjEf.| queatibhed' whether an antecedent" notice would hold good.—His Honor: I dojot say it would alone, but only whencoupled with a coil: tinuous knowledge/-i; ; -; '-<Y ■ '■ i 1 ■ • ! '!< 11-.i'l {"!.'''■ \L: DISPUTED. OARRUQB.,: j,,',,;I' Moore and Dixon vJFirth.-Claim- for' . carriage, £75 12a7 Damages' by storing, -'.£B;-'.. : Mr ; ; Bunnydfor. plaintiffs, and- Mr Skipper for., defendant. -,-A,. - jury consisting of E. Fe'isV (chairman) M. ' 1 Cl^l^ r S>,-. ,I [ , / loni . B i,? n , d Kibble\yhite. wus empinnelled' to' "try 'the ■ case.—Mr : Bunny said.the.claim.wa.s..for thecarrivige 1 of 10 tons 16 cwt.of Roods from Carter- ' ton to Ormondyille at #; per ton; iPlaiii- ' tiffs had been 'deceived by a ieprbseiita-" i tion of defendant and'his agent that" the I weight was but 6 tonj 15cwti, .'for which i ' weight defendant "tendered,.'.payment, i The 'plaintiffs, however, 'refused'to' , accept this settlement.-Williara Dixon i deposed j: I ahi > a general:'carrier in Masterton; Th April last I wascopartner.with.MrAinos,Moore, the .other, plaintiff. In March last Mr, Firth asked me if we could take a "sawmill plant; weighing 4 tons,to..Ormondville..; Ha said the distance from".Ormondvilie to ; Woodville.was 17.niiles,'!buttfouiid' out afterwards it was 37 miles',' Moore and I went to Carterton and saw the stuff. It was scattered.about in such.a way. that we could not tell the weight'of it.' After-' wards Mr Webb'called' tenders 'for tlie . carriage, and l.put: in a tender for it;Later on Mr Webb told me that no '.ten-. 1 der was accetped, but that we could have the job at £J per ton, if we took the risk of the bridges,; Mr Webb Said he I'would pack the stuff so that it would ; not get, broken, lagreed to "these terms, Three days afterwards I went down to Carterton' .toload,: There were a;lot of us loading; 3^-We took all that was given to us; -Mr f Webb gave us a list to sign for but I.objected to sign it, because I thought that 1 the money was not right and' that we had . more weight on than was specified.' ' Mr Webb altered the figures-from -£42 : to : £4O. Mr Webb., said; if wo were 3 not satisfied -with, the weight we ; could get' any two competent meii to ; } guage it, and he offered to bet that he was not 4 cwt out.— the Court; Thefe.'isno weighing';machingin the district,,, The next morning we got Mr Gapper and Mr Wa'gg to give us a list of the weights. Tho document produced isjthe oileigiyeiiitoinie by! Mr Gapper) ' siving an estimate of 10 tons 16 dwti We I found then we had to make,four loads, of l, the stuff instead of two. The railings of one wagon coining up to Masterton !were smashed; I am certain from my'own. • knowledge that we were over weight. ■ When the delivery was completed Mr Firth : was only willing, to pay.for .6 tons ' 15 cwt.-: I- then/ got a}place, for:the r machinery, and stored it there: ',' l believe Hie machinery is still in tlio store, ; I gave instructions -for, h jto- bo given up to. Air Firth when he paid' my claim! I instruc- . ted Mr Bunny to write and tell Mr Firth that the Mods were ; tliere,. and that'he 1 ". ,CQuld.]myejth.em on, payment of, charges,' 1 -In answer to tho Court:. Tho road-is prettyigobd, but'rather hilly.'-In answer- . to Mr Skipper: I have not paid'ahy storage as yet. When I first saw Mr Firth he said the weight was about four tons,- and that j when we went to "Carter- - ton we could see' it ourselves.,-''l.cannot say whether Mr Webb pointed out all tho • machinery to us.i T know tliat- tenders weie invited for its removal. -Afterwards I was, told:of othercarriers'who had put in a tender. In our tender we put the • price at £1 per ton.,- We'agreed that' Mr Webb should lake the weights; The rten'der produced' written on'a telegraph form ■ was written by me!. It stated " that' the . undersigiied Undertake the carriage and ; delivery of the; machinery purchased by! Mr; Firth per.tnn-weight. to be taken by MrWebb!; (Si»ned)-rDixon & Moore.",;' After we loaded the wagons at . Carterton, Moore and:l went with Webb to the iMarquis of-Normanby, when he brought-'the document produced for signa- • ture.—The document -was as follows: j "Carterton,April2oth, 1881. Raceived , from R. Webb, in good order, all the 5 machinery bought by S. V. Firth, of I Hawkes.'Bay., VYe, the undersigned, agree to deliver the same at the Ormond: ville.mill site,' the weight, as taken by R. Wobb,;for£46,l6B. (Signod)-W. Dixon andA'mos'Mdore." .The alteration of the amount of £421^3; to :i'46,:;i§s was made at my;suggestion; m^ the-right-pricefpr ; the : -weight i; which; Webb.th'adSgiven us. Wheri :: 'w'e"'sighed to the ! ;w.eight; jMr.jWebb said;,[ho;could not 1 alter the weight on the receipt. Aftersigning the document: we proceeded on 1 our way to Masterton. I had.not the : loast idea- where'Orihondville was. I .took;,,Mr Firth's,, ."vord.trrln .answer 'tb'"the : 'Court i :'' l ''Tlie''' ! first ; two loads, were taken delivery of by Mr Firth, ■ ! we did not deliver them.on the mill.site! ! >' On the first trip I told' Mr Firth of the 'extra weight. -We took the f seco ! nd'l6.t to i but refdaed to give itup' because we wantedmo're money. I heard of other tenders being sent in for the cartage."''Mr Webb'said there was'' one from-Hercockij I did t not/know the amount of Heroock'sienlpr.'. j ; _was 'not told that I mustbe* under £50." I'have ■ since heard 'il'sjncVlha'tpercnck's tender wasißp.—in|shw|rtfe'thyCourt. lean . each of the i 'two first;loads,;and;oyer ; two; tons on each,.., of thetwo'secqnd[lbads.7f When.we'liame ' _ fromvCartertonJ'thpugKt'weVhad 10 tons • i f , ; wished;toknowifrbm r witness whether, anyi i\ recognised method of weighing maohinery !wWe'cl' bVPssfs^fapfier JnWagg in .estimating;the weight at 10 tonsl^cwfcl-^r' >,l:doi:no^know.2|His|Honor ) stated, that the jury .woald hate the

(opportunity; ofj; Mr^^^^^hMstobd^; ( was /unable to AmoiMoore'depoaeM ! _siding"at Masterto'n^fle^S^Dix^ "row^lr'thl^ :barriedxertam maohiherj from Oartertbnto Ormoniville, for,-whioh they olaiined of it;— His Honor: Have you received an account for the atpf.age frpm the party :in^trhovc^teffii3Sa^the;?muchiner.f^;iS: •lymg-l-Wittiess;.' No! :His HonorV. Juljf.QU''eUim £5 for this. Is this the' M?M\.3sSJ2!ssßl J™ will be liable iff'exp'ect it will be about JpiyMinfiiation Continued: Before sending in this tender they had/ gone' to "Oartertdn and• arraH^icl.?with .a Mr Webb' Lwho/wafHo load the'-wagons with the to tell tKetn the weight of it; foVfljfi they a'greeol]to give hijn L 27 Thier tender rea'd. fading, W/ebb told'thehi- there was about 6 j-tdiis*. v'lSJiowt of machinery. When witness loaded the spring wagon with, the' there must have.been six tons on that alone. He jiidgedr tHiaTJby springs', iwhiohwere thesameias.wKenihe had had .six,tons on the wagon- on previous 'occasions, After loading thsy went .to-the.;Marquis_of...Normai]dy Hotel to sign receipt, for the machinery. IWhen.the document was put before theni. his partner noticed .that the.araoqnt .was 'up vwrontr^?■ a¥d'tley 1 afao/.remarked!thati .the weigois .wire.nearly double than stated -oil the deed. They "signed the receipt .for' the machinery'oh '.thMnderstanding.that they.didjiot take the statement of weights.aa, correct/'.a'nd when they arrived at Masterton .they>- got Messrs'6appei•'and:Waggto give'them ah estimateof the weight!; WhW' they got to Ormbndville they saw ilr'Firth, anil witness told himihat'Mr'Webb hail made a,, mistake abput.the weight'to jhe.aiiiount "of 4'tqns'|and;i owf,^'.lilr'.Firth/'admitted that "one ■piece had "Been' uhdereVtimate'd by about a ton., When they reached Ormondville with the last two loads they would'nptgiveit"Up~until they saw Mr Firtfrabbut.it.l They shewed Mr Firth the estimate made by Mr Gapper, but he would not acknowledge it, and said he would pay only according to Webb's estimate. They refused,tp-give up the goods till their 1 demands '"were' satisfied, and 'stored them?at a place where they were now.—Cross-examined by Mr Skipper; The person who had stored the machinery would probably charge the amount oliiiMd for "storage."" They lia'd~promisß<l ;Mr Webb that they would give him £2 for ■giving them the correct weight, and they were:still liable for that sum. The first time, they-heard Wobb's estimate was on the'day-they'went'down', to see the machinery. They had to let it rest at that estimate,- because they were no judge ( of machinery; themselvesj; and it was laying, about 'among .o'the'r.machinery. They objected . both ,to, the, weight and amount wlieri'they signed the'agreement Did not make any alteration in the figures themselves, Mr, Webb, made them.—Mr Skipper: Why did you not have the weight altered also at the timel—Witness *., ■Beoause we had given him'to understand we would not take his weight. The document was signed as a roceipt for tho goods 'Skipper': You' allowed the .weight'toromainon : the document, and knew what .you ; were doing*—Witness: Knew.it- was the custom to give a receipt' for any goods by carriers! When they signed that document it was an understood thing that they .meant to get another estimate', of weight. ;Mr Webb told them he 'was a disinterested party in the matter, except to put it on the wagon. Did not ,know of a better man at Carterton at the . r time to give Ihemjthe'.weighiibfhtie machinery. Mr Firth made no objection to the weight they had mentioned on the 'first ocoaaion. Mr Firth then! take tlie machinery Ho the ; buildihg where it now lay.-Saw Mr Firth after this, but said no more to him about the matter till they' hWI : consulted" Mr Buuny. They had ; -heard' of other tenders for the'work;''The first trip they were.nino days, Hhe second eleven days (including the two days they were delayed waitiugto see Mr Firth and one day they spent at Eketahuna).—The 06urt r : There were: two-'men and ten horses at work for 19 days then I—Witness : iMr Skipper: iMr Firih liad told 'them that the'distance;to;his place .from Wood'ville was 17 miles,-By Mr Bunny': At the time the agreement was first made they had called attention to .the.niisfake'in lie adding, and tho price was altered and made to cover the 6 toil 15cwt. Mr Webb was to act as their agent in taking the weights. Whon they put the;' goods .in the drayjwitness believed Webb was noting for Mr Firth.4-P T, E,■ Gapper deposed that he was an, agricultural,machinist. ,He knew Mr' Wagg, who was a--working'-ongineer and ■had had special experience with sawmill .machinery, .He (witness) had been asked an, estimate of theweight.of cer|tain machinery; nnd as he i: did'nn't'feei he' could, dp',, so fairly,,by hirnself—as the .nature of the machinery was rather out of his line-he had sent for Mr Wagg, and together they had made the estimate produced, which he considered was below the real weight, of the machinery. brief cross-examination as'to means" taken to'/.arriye atithe-weight, which, witness stated, was by.. Mr Wagg. .judging .the various pieces by, the weights given- on his own invoices for.similar machinery, and by their experience of the weight of 'ironwork-in another shapes, the Court adjourned till two o'clock. His- Honor stated that he considered il hardly necespessary to remind the jury not to discuss this case out of theirbrixi Though be'felt ''that'would not bias their minds,' still it was better to avoid the appearance of evil. ' ' .<],■:lK ■2p.m.|. , Mr Skipper for the defendant stated that no'agreement ''was entered I 'into " : oh the, part.of his client to, carry, the, weight of goods'claimed at i7'a ton," and that the weight of 6 tons 15cwt was one which had been agreed upon on both sides. He would'also be s prepared -'to'shew that; another contractor had been willing to undertake the work for which the -.plaintiff had charged:fi7,6. .Ho.also argued that by the'tender of the 9th April, and the agreement of the 20th April, • signed by ,p)ajntifi)| it'was clear/that" inAhejfirst Instance they authorised MrVVebVtb'take Jhe weight, and afterwards they admitted the'weight 1 as %ken ); by him;' 1 ! He 'urged top.that plaintiffs had.nntcompleted their, contract by deliveriiig'the' machmery on 1 tho- mill-site j ; an'd ■ coiil 1 'hot l i tak'o !r abtion until they had given delivery.- r The,Court pointed out that.while they had alien on them for carriage they were nptboundjtp give them up, B.' Firth'deposea • He' • was a sawmiller, and defendant in the present aotion. Had met-Moore-aid (Dixon at ;Bketahuna, Jiandr/they.-rhad' offered to carry up the machinery he j had. bought rat (Carterton; -.for.- i2S,Q.He "told them there was-about 4or 6 tons, He called'-.tenders and instf ucfe'd : iMKWebb!at Carterton ttfrecnve ttierrtand forward the .machinery. .When the .first lot of stuff Vas'brob^M'^ he hadfohe'ddwyto^sh^w-themtlie ro'ai ,'.P r the place, ~butthey-refused, to lake 1 it; oh account of 'theitate.'of the fiece, I of i fpad l tpJhe„mi!L. l; ; i He,had,to, I go to], the expense.of £7 ir loa;to get's£puff l &>m •where the plaintiffs' tool? It "rto the tnill; /He'setir'itibyi rajlwayoT them if they wanted .'any money *l6ii (he rpadwThey' said ifcallafc .once, ■; ;;JVhen> the|?l)rbughtiofir j the they; wouldv Kardlylilet#him

■■■■■■■■■■■^■■■■■■■■iMWitlMWM*.;,;;';;;.'^ ;■ : 'reMive;the'{^ney^^r|: ; f ;ip :,] : j 'oWedSrn|the j hit me on:the side ol^iihes^;!'i; • iSS^llp^^ B c '*' in ' '-^'^ , ■ ; 1 ' ss§s3^^t#w4u^ - toofc it to! jit^r fi -andltold tfiera 'that they did "if ■ at thwr'i^P ifetiil 'I received 'i lettertrontMr Bunny. '%':",) Mf^t i ßunny7 'Did I. v? ■ . ;=fWitness;:rTh»y, gave- no reason v : i 'HifTHohor): : Awylra:'silre r ofihUi: ■ i i bullocbdriyer. had 'offered to,brinfe_th« \ ,i: " i J machmerjifrom,wheTe,plMntiri l -took»il at - ; i i looking at tho goods,; but wouldPwrclly-•":-.,: : '; i let'jijtn'do Bpnny-d[o> you ineaa., \. ■ ; i tos»ytliat thef^ ; thegoodop*there,;! : / ' and then for no r'easdb*efiisedto give them;;" i up. "sTh'eyTß^ve./no reason, ji. ■■ ■: : ; t Had agreeW wlw aM^Bad .-j&0 r i admitted t Wtfald- 'ha Ve -.in j tired t'.tHo C '•;;■ machinery to have it Blong--thtf^" r . ; :; ; piece of road'w'KiV'mill! -'jiHe'fiWnsidereoa'W,./, > Messrs Gapper I, and' l -Wagg ( y estimate 'fiE^ii > very excessive one. ;Did!tiot sWjl;' 5 Wjl ; ' M6bpj||jr* ; i that the cylinder w,eißK|d|fwHons.^Hi«^' : ,., ■ HojiPr: You did«St^ri^imit)|d^w''gotd;^/''. : ; i have.to <J:rartßhip' ; ;tl(e ? on to",''! ( bullock draysib 'ge|;it'Vt|c|p,ur,piace ?-t;}. . Witness: No.—His Honp.r;'t3Tou,..told, t .; - : themltliere ,was, a' good. a way t- , i Witness-?*Yes.',-jLaskeiUhernj.af they,;i , • had brakes tp tHeir Vagona".—Hia'Honor! : ;.."' ' Would if kv'e ! 'beenxsafei'to(. ! kve taken •• . ' the\wa'^hi^al6ng!the~pi^ofTroadjt6th» ,s -'. ; i mi|L—Witness': ,1 .wouldiibt 'do it.— > [Afteta'-liitie^uVther '' I -His Honbfj.'Dtf-'yoli-pVsitively swear . t that you did;not knpwjwhy they, refused:'. , » to giveup the'g'po'ds"royou' i t l ilH i ybu got.'" t Mr Bunny's letter.'—Witness:. Yes.-:R. I WebbMeposßdvr He; engineer and s millwright, Had-.,been* engaged';by-. - t Firth to ship ]\W machinery for him. I Moore and Dixon came'down to him and.-. I said they'.had agreed to-take the lot up' • for £2o!£\He the r t and i hef'tol(";the'm.jtiie ieight. warfl'tbiis, and.. i J Thi3-hehaddpne";tb'tHetex.te'nt of 15cwt. •He told Dixon the'jweiglit v the first time ■ i became the, wagons were " t loaded ihe l - agreement jwas,signed at the i Marquis of' Dixon : made no'objeotion'toths;neight, but Amoi .' f said somethinßabnut it-being over. 7 t His Honor: Then all .that the plaintiffs; i have swom'toas-td tlie weight and stating f they intended to have measured it,at Mas- . 1 tertonis untrue un« t blushingly swear.' ;itris;%-;|W'taess was i •cross-examined .Mr-'Bunny and "Mr - ) Slapper; but nbtbinjg fresh, elicited.] t answer r tb the jury witness said that if' ) they'had objected to his weight he would t not have' Allowed iihem jo. tak6,it all.—- , Mr Bunny pointed but that''tlie wagons'1 were ( loaded at. tlie 1 time of the objection, t —His ; ;Honor;' Were 1 - the wagons; overs loaded ?^-Witness,:' Ifetkey were not,- ; • r His Honor :Doyoutlunk then that they s partly unlb>ded[ati Masterton- as a ? :, —Witness 1"' I Bhould L think»not.—His J Honor: Can' ; you'account fof-'iplaintiffs • using'four.wagb'uß''aiid five horses to each s wagonif ! theweiglit)waß'i6t.rnuchinore '' a thancoddbeitakeninonewagon'?—WitJ ness:, Of course' tliejr could use as many : .horses and wagon's 'aV-tliey diked.—His f Honor: But is it a usual thing y thought not.—His Honor! You appear to i have formed ai very bad opinion of plaint r tiffs.—Witness:■'Not: Honor! e When you liave ? 'delib'erately sworn that , they have committed'perjuiyi you cannot t think very highly of; tlieni'?—.Witness: I e should think not.^W/'Hercook deposed ,n e he was a carrier,andhad tendered JJSO for j carrying the whole' of 'the plaiit' up. He ± e estimated it at seven'tons. If he had T e secured the job and found there was more v he should either have increased his price I. br thrown f up-the contract.-r-Thisr con- - f' i ; their right to address the jury,..'" '' '' e His Honor summed up at spme length.. i yTheissues to he considered''by.tlie'jtiry jr ist.' jWjiether an/agreement |was J made/by.plaintiff tp,carry*? '2nd Whither 3 plaintiffs so. ,'carried;; 5 f the weight i carried ;'s and i 4tli,} tlie) |dp,mages bus- . tained by plantiff through being comi polled to' ! Btore'; theigoods .through,,the i alleged lault of defendent. The first was j admitted by the' defendent, the secoud t it was not;contended: by.plantiffs had d been complete'd, through the impossibility a of taking their',-wagon-through a bush i road, .covered <,with' ( Btmnps ; ;; the third' r question 'th'ey J l had' r a great ,' .deal of epntradietey, evidence upon. One ~:; side or the,-dtlier'"was ; tejlipg 'aif tjn'frnth | t iand for this.-reason he.'congralWate'd'.hlm, i, self upon having so ablea jury to.^alslstr' him. - The amount, claimed. for damages 1 —£s—\m evidently " phucked" ( i'nj it 1 was a nice jittle unobtrusive sum, 'and 1 lawyers ,did.not like to bemean in making . charges/' ! If £5 was'the jstormg 8 j ; 'tons of goods'/for 4!weeks,' ; he,,thought it j would pay to build a fewsheds'at'Oimondt villa.- The jury would have all the eviJ dence before them, and .if, they required . any assistance he.need,.hardly tell them ut he was';ientirelj- at' their^Bervice.-—The i CourtwaJSvthen-clearefeforythe jury to ! consider their'verdict, ,an|)ftfter an hour's 8 interval tlie;; Court re-assembled, and the B foreman Pf.thejury delivered the verdict' ! to tne effect tliat. the; plaintiffs were en- , titled to j the amount claimed, less Ml 10s, . • [ the cost incurred by defendant in comple- . ting the carriage -to!' the jmill site; Nor damages were allowed for storing.