R. M. COURT.

Wairarapa Daily Times, Volume 3, Issue 907, 24 October 1881, Page 2

R. M. COURT.

SATURDAY', OCT,'22.

[Before H. S. Watcdell, Esq., R.M.]

HBECOCK V MEREDITH, (Continued,).

B Meredith, sen., deposed:. That he hud piisis supplied to him by a Mr Thompson. The posts were 12 xl2 by 6 feet, and 30 posts were delivered at (is each, which included the hauling. They were carried about 26 miles—not a gotid road all the way. Had informed his "son of the price paid. To Mr Bunny: Had had timber hauled from Masterton to Kohiirai, but could not say what price was paid.' To the Court: The value of the posts at the Taueru at that time was about 3j each,

C'arence Meredith deposedl'Hehac! been in the office at Riversdale station with Fertninger when his brother came in and asked Ferminger if he could remember the tender he had sent to him. Ferminger stated what it was, and Richard ai»ked him (witness) to write it down, which lie did. to Fettninger's dictation. Had not seen the document since,

To Mr Bunny : Hia brother did not tell Ferminger Hercock was going to summons him. Be asked for no reason why he should give a fresh tender. At that time witness was not aware there waß a dispute nbout. the carriage. Ferminger was leaving the station about this time. Thomas Kmght deposed: He had carried timber fiom Burnett and Yules'to TiMiui. Had I aded 1400 feet at 8s per 100 ft. about February or March this year. That would lie a good load, the timber lieing utraaontHl, Never took timber at lower rates. Had asked 10s per 100 ft. but cmilil not, L'et it. He would not have curried the same timber at 8s per 1000 ft, Five horses could not have taken 3000 or 4000 ft, it w.-uld have been impossible. He soiiot'toes took four diiya on the jounity t> Tenni. There was nut much competition on the road. Edwin Meredith deposed: Fertninger bad been one nf his bollock drivers, and had to d witness he bad tendered for Imulng timber for Richard Meredith. Witness would Imve found the bullocks and had half the proceeds, John Ferinin-.Br deposed: Ho was a Millock driver fu- Mr Buchanan. Had been wi h Edwin Meredith. Had a conversation with Richard Meredith re haulin!! certain liinlier. Told him he would haul titnl e from the Taueru nt 7s per 10) ft. 3s from ihe Mungapakeba. Was working 15. Metediih's team at the timo. Hichard Meredoli was to find one team, noil witness, ihe driver He did not sign any tel. der f"i- 2f per 100 ft in the presence ot I'M ward Smith. Mr Meredith

p ike to him at ilie Isla id Hill paddock. Vev« r pui Ins marl; t" any document or t<!ii''er. Never si.;iied the document. rpp'd"C'''l|. On Vngibt he was at Rii'Grsd.le, >"d ]'ici.ird Meredith had adsed him to I J," a rfocu eni He ■siitd ivliat for, Meredith s.id " tisrcnck issuing io summons me for hauling timber." He signed the document, and as he was no scholar asked for a copy, Richard Meredith wrote it. Mr C arence was not present. The document produced wis the one he signed. He knew efme be left that the document was dated '24 h January. Ho kmw it ivat supposed to be a tender, hut only a sham one.

To Mr Parker ; Left Mr Richard M«reilith's employ because he could not get his money. Had no reason to belies he ivas dismissed. Had received all he con<ideied due to iiitn from Claience and Edwin, \Yould swear he nevor made his mark lo the document witnessed by Edivard Smith. Signed the document read. When he made the offer of 7a and 3a made only a rough guess.

Thus. Thompson, hotel keeper, Taueru, deposed to hearing a convocation between !{, Meredith and Hercock, Heard the former say, " C"me, emtio, let's settle this imicahly, I'll meet you half way." Hercock said, " I'll have the whole or none." This closed the case.

Counsel decide'! that as liis Worship had the whole «f the facts l efore him ihey would nut address, and His Worship gave judgment. He said he felt great responsibility in ■le;iling with this ease. Ifo magistrate could ait without n feeling approaching ■irief when the evidence was of so cowra■lictciry a nature .is in the present case [t happened rather remarkably that the contradiction on both sides was so well oalaueed that if he had to decide upon a natter of fact lie would he placed in a I'ositiun of !!im> uncertainty. But ihis ;ase was one in which he was asked to ",'nore iiud set aside a written contract on lie "round of a mistake. He had thought, carefully over the matter, and hail con•idered the authorities upon which plainitF relied, and if it could be established that ihe plain'ill' had made a mistake, and the defendant hail linen aware of it, the Court would jiave a riylu to cancel the tender and substitute the one which was ■n ihe intention of the parties when it was made. Bu' the Court could not do tips aithoiit ihe clearest evidence that the mistake was inu'ual with both parties, met l hat inn! li'.d made a fraudulent concealment of it. Chi'ty said equity in erfi'ied when a mistake was mutual and affected both part'es, but tho evidence to show this must be the most conclusive ind saiist'iie'ory to the Court. Could he <ay f I.ere had been a mutual mi take I Mr Bunny quoted seveial prpo«lents to show that an omission ly uptake ■voold st>oid ihe same as an 'mission by fraud, and contended there had been a mutual mistake. Mr Piiker protested a«ainHHis Worship heing interrupted in ghing his judgment. His Worship failed to see that sufTic : ent evidence had been placed before him to ■«t aside the written tender, and gave judgment for defendant with costs and ••XMi'iiKt's, which amounted to £l3 17s. Mr Rumiy n-ive n"tice of aopeal on the point of law raised by His Worship, am' M ■ IL-cnck expressed his intention to take the matter into the Supreme Court.