R.M. COURT.

Wairarapa Daily Times, Volume 3, Issue 882, 24 September 1881, Page 2

R.M. COURT.

♦ MASTERTON, THURSDAY. [Before H, S. Wardell, Esq., R.M.I William Hercock v R. Meredith.—Debt 128 lCs. Mr Bunny and Mr Skipper for plaintiff, and Mr Parker for defendant, The latter had not secured Council till about two hours before the case was called on. A sum of £!h Bs, the price of some shingles was admitted, The claim was for certain timber carting, for which plaintiff had charged at the rate of 8s per 100 ft. Mr Parker Btated that he was prepared not only to show by a written agreement that the price was to be per I,oooft, but also that plaintiff had not carried out his contract by not delivering certain posts, whioh he had agreed to do. Mr Bunny submitted the contract for posts had nothing to do with tho present action, W. Hercock, plaintiff,'deposed he was a carrier, and had agreed verbally with Mr E, Meredith to carry certain timber from the Taueru to the Mungapakeha crossing at 8a par 100 ft ,; and from

McGregor's Cd par 100 ft. He luirl put his tender in writing, at Mr Meredith's requen. He had applied for payment, and then found out that the •tender rend as for I,oooft instead ol 100 ft, Mr Meredithi said the price was very low, and■iiHVre'd to meet him nu the matter—whjeh he supposed meant kmckinsj off half his charge. Had not received any payment on behalf of the claim made. It took a day to take a load, and a day to return, and he took I,oooft at a load. ' To Mr Pavker-I deny that I agreed to carry the timber at per I,oooft, It took almost a month to carry the timber. The Mungapakeha had to be t/avelled with bullocks, .

Witness caused some amusement by asking Mr Parker how far he thought he could drive a bullock :in a day? which question Mr Parker declined to answer, and a little passage of arms also took place between tho counsel and plaintiff with regard to distances, plaintiff effectually silencing his interlocutor when told that his belief as to distances could not be taken, by saying he believed there was a God in heaven, but could not prove it. Ho'said he had agreed to deliver the posts, but did not do so, as Meredith told Taplin, to whom ho had handed the job, that he did not require them; It had nothing to do with the contract for carrying the timber and shingles. Mr Parker wished to put in Hercock's tender as evidence of contract, but did not do so, as it would be liable to a fine of £5 for being unstamped.

Richard Meredith, defendant, deposed that at the conversation re carrying he had with plaintiff, no price was mentioned.

Mr Parker—Were the terms mentioned in Mr Hercock's letter 1

Mr Skipper—l object to the question, as the letter is not yet in evidence, 'Witness continued—Afterwards met plaintiff at Tinui, and asked for a tender tor a supply of posts. Knew then at what price the timber was to be carried. Had accepted a tender at £3lss per 100 for posts, the whole to lie paid for together. Disputed tho bill fur carrying timber when it came in, and also directed attention of plaintiff to the fact that the posts had not been delivered. His Worship asked when the tender was accepted, as there was no acceptance before the Court.

The plaintiff said there had not been any written acceptance, the agreementhad been made verbally. His Worship said unless Mr Parker could bring forward corroborative evidence as to the contract it was useless proceeding any further with the examination of the defendant in the matter. He could hardly believo that defendant thought the offer to carry timber to tho Muuganakeha at 83 per I,oooft was what plaintiff intended. Defendant contended that 8s per I,oooft of timber was a fair price. 4,000 ft could be taken as a load, with live horses, and 32s per day was not bad pay. His Worship said if defendant had really tabu the tender in good faith to mean at I,oooft, it was binding, even if plaintiff had made a mistake in the amount. He would give defendant five minutes in which to decide whether he would put the tender is as evidence of agroement Defendant decided to do so, and paid the One, £s,and 2s G'd stamp duty. The defendant handed in the tender, which read in figures per I,oooft, and also a copy of his acceptance of it, which he stated he had sent to Mr Hercock. Tho plaintiff said he had nut received any letter accepting his tender, the arrangement was really a verbal one. Mr Parker contended that the document should be taken as read, and claimed that it was an agreement on the part of Mr Hercock. Mr Bunny held ii was mwigrcement, and that if a mistake could be shown, to have been made the plaintiff had a right to have it corrected. His Worship 'said he could see that the case was likely to bo a long one, and he would therefore adjourn it and other business to next day, at 9 a.m., when the cross-examination of witnesses could be held.

FRIDAY'S SITTING,

HERCOCK V. MEREDITH. Defendant cross-examined, stated that he considered the price in the written tender a reasonable one.

Mr Bunny quoted a legal authority to show that tho written terms of a contract could bo overruled if it could lie shown that they were not consistent with the implied agreement. Witness oonsidered that ten pence per hundred feet was not a ridiculous price for the carriage of timber from the Taueru to the Mungapakeha, A carrier could make thirty shillings a day at such a rate, There were some stiff pinches on the road but they were all down hill. The steepest grade was lin 14, He did not offer to pay defendant half of what ho claimed. Mr Bunny produced receipts showing that Mr Hercock had paid to Mr Taplin the whole sum that he claimod from the defendant, and asked witness his opinion of the document.

Witness said he was not prepared to say what Mr Hercock was capable of doing, Mr Hercock had to go on to the line and face competition, consequently prices were, very low. He received several tenders for the work, one was 2s per 100 feet from the Taueru to the swamp, Ho could not produce the tender. He h»d on one occasion in winter time paid 10s per 100 feet for carriage of a small lot of timber to Langdale. In answer to Mr Parker: His agreement with Messrs McGregor Bros,, was for a lump sum in the middle of winter, Mr Bunny objected to Mr Parker's method of re-examination,

Mr Parker said "If lam interrupted every moment I. will sit down," The Court " I am afraid you will have to be if you do not follow the ordinary rules in re-examination."

The Court said that it must give judgment for the written tender if the case rested at its present stage.

Mr Bunny asked for a nonsuit so that another action be taken.

Tho Court had no objoction to granting ,1 nonsuit, on the understanding that the plaintiff paid all possible costs in the present case. But thought that without good grounds the defendant should not be barrassed by a second action, Tho nonsuit was not accepted, and His Worship gave judgment for £5 (is 2d, being the amount due according to the price on the written tender, remarkinc that the timber was a very cheap lot. The costs to be paid by defendant amounted to £G 19, and having already paid £5 2s Gd for stamping the' tender, the total, amount to be paid by him comes to £l7 7s Bd, the original claim being £28145. M. Mahaarikivßudden.—Larceny, Mr Skipper for prosecutor, Mr Bunny for defendant. The charge was for stealing certain blankets and other articles from the house of the Native Pastor at Te Ore Ore. The goods were identified by a native woman named Amelia, who, also proved finding them in the house of defendant. She also stated that defendant was on friendly term with the natives, and would, never have beon suspected of stealing the articles had they not been discovered in his house. He had made no attempt to conceal the articles, and directly the natives stated the goods belonged to them, had told them they could things away. ( W\ answer to Mr Bunny, witnßss

I stated that the house from which the things were stolen was near the main toad, and as a window was broken Rny one could easily unfasten the catch and enter the house. The natives were in the habit of Waiting Budden, and on the Tuesday the discovery made. Several native children were at his house and he had given them some pudding./ Accused/ seemed a. steady and man,j and as far as she knew, not the sort of man to commit an act of stealing. ■ The' l prosecutrix had asked defendant iu.gm her £2O, and she would not take.the matter into Court, but defendant and when the prosecutrix said she wOuUfl send for the police, he said better do so. He told ( them he bop the things from a swagman. TH" S To' Mr Skipper—lt was customWy among the Maories to make such a demand as had been made by the prosecutor,

Constable Fleming deposed that hewa« riding along the road at Te Ore Ore when dafendanfc called him in and stated that there were some things in his place which the Maocies claimed, and which were said to be stolen; He wished to give the things up. Defendant made no effort to conceal anything. He told witness that a swagger had stopped at his place and had sold the things to him. for 12s Cd. He gave a minute description of the man but witness had not had time to make any further inquiries in the matter. Defendant Btated in answer to Hiß Worship that he had bought the things from a swagaman, who told him that they belonged to his (the swagsman's) wife, but he had taken them, as he had no money, and intended to sell them, Mr Bunny submitted that defendant had clearly accounted for possession of the articles, and pointed out if he had been guilty how easy it would have been for him to have concealed them, It would have been the act of a madman to have left them about as he had done, It was not claimed that he had made the least attempt at concealment, but directly the things were recognised he gave them up. A search should be made for the man who had sold the things to defendant.

His Worship said he would acquit the accused. He hoped that this case would he n caution to him and others not to, have any dealings with swaggers in the: way of purchasing anything they may' offer for sale, as there could be no means of knowing whether the 'goods were stolen or not.

In the case Johnstone v. Johnstone, the Court granted the order as applied for, and defendant is to allow his wife £1 per week, the custody of the children remaining with for.