DISTRICT COURT.

Wairarapa Daily Times, Volume 4, Issue 1062, 1 May 1882, Page 2

DISTRICT COURT.

• -}■ MASTEftTON.-SATURDAY;W

Before His Honor Judge Hardoabtle,

Donah) Donald v-E; Meredith, jdn. Damages, £l2O, . .' t Mr ffiay for plaintiff, and Mr Chapman for defendant, i' •:'••' Tho following jury wero empanelled, viz.:—Messrs Ingram, Bacon, Keith, and Eapp. . ■ ■ ! The action was (brought to ; recover damage sustained to a threshing machine, the property of the plaintiff, while under, the alleged charge of tho defendant's ' servants; ■' _. ;.The plaintiff deposed that he made a Verbal arrangement withthe defendant hif February, 1881, to..(thresh ,his cropsjw'a charge 'per bushel. ~,Hb' was,;to 'ilnd two men to look after the, machine whNel working, and all the resti of .thelabor was. to be provided ;^ by defendant,/He,:believed it was stipulated that:the defendant was to move the machine from place to place as required. He had purohased the machine and engine two years'pr'eviS'usly at a cost of nearly 1900, It was, when it went to work fordefendant, in thorough working order. He saw it before the contract with defendant was completed, and found it to be broken and lmookVd about. Though temporarily repaired,.it was much depreciated in value'.la".]valilft a'tid'jif afterwards sold it to Georg'eVHerori 'for MO.. ■'..:.-. '• ,■.':? V>-' 4

i Johu Rqugh, laborer, .of tlje Whareama, deposed;thift he wasrpvesentiqnone. opi|av sion when tho machine was being moved by a team of bullocks ,round a.oprn.er.q& theUriti road. Peterßeid, a aervantoC Mr Donald, was present, and called "to Donolly, the driver of : tHe ,builbqks, to stop, but the latter ran to..the other side of the bullocks and whipped'theni up instead, and the machine went down the gully with a crash, Pe'tor Reid deposed that he was in charge of the machine for Mr Donald. Ho warned Doneljy about '<■ the difficulty of" getting the raaohine round sharp" angles of the road, and told him he' would' stop him if he saw any danger, When turning the corner in question he saw that the machine would not clear it,'and called upon Donelly to stop, but Donelly'did not do so, and in a few seconds the machine went off the road and capsized. Donelly afterwards told him that he tried to rush 1 the bullooks past the dangerous point, , Nicolas Jensen deposed that at the request of Mv Meredith he repaired the machine on the spot where the acctoen't-' took place with the assistance of-a carpenter. One side of the machine was smashed in, the side-rail and platform' being broken and the interior of it shaken but of gear. Ho made no arrangement with Mr Meredith about' payment, but Mr 1 Hare said Mr Meredith would pay him..He charged ten pounds, and gave an order for the sum on Mr Meredith, which was .honored. _ .' : To Mr Ohapnwn; The machine was not a new one; the fan, and the drum and the shaokles were shaken out of gear. 1 I could have repaired the machine more perfeotly in the. shop, I.Jiave.repaired: such machines before, It was not easy to say whether tho machine was reduced by the'accident to three-quarters of its value. For a further sum of twenty pounds I could .have put it-in, .complete,. ' working order. If kept ; in!; repair? a i macjiine would kt many years, A firstcJaߧ'rnachine woujd posji about £3OO. It ought fo be kppt sheltered. Tlje machine' 1 was clean outside., / ■. ■' 1 , To-Mr Gfay i I did not know what state the machine was in ppor.tothp, accident, I shaftpe'rI teotly without a lathe, but was °ent. , "'.'...,' To the Court: There 'Mi. one oasting" broken, whioh I repaired,-, .instead of putting in a new 'one,'..lt'.w'aßi v a oasting whioh had been broken.before;the accident, ,;.-...-. ; ■..'•:>.'., ; Thomaß vVagg deposed that two years ago;.he was engaged threshing for Mr Donald. The' machine,, when under hiscare, was kept dry underagood tarpaulin.' He took the machine through the same • cutting once with ten bullocks and one horse. It was not Bafe to take, the, ffphjne by simply, driving round tuei curve, He managed''' by baokihW the machine twice to do so. He liadhad considerable experienoe of threshing machines,After two seasons' work he valued the - machine at .£220; the valuo of the engine would be about £3OO. The two would cost about £6OO when landed new in Wellington, ' r : , ' To Mr Chapraim; The wear and tear of two.seasons would not amount, to £30.. Wlien he moved the machine two other men were with him, and he gave .directions to the bullock driver. The road was not fenced on either side. .William Watson, blacksmith, knew Mr Donald's threshing- machine; He Saw! it' when it was new..' Saw it again'in •'Feb, last,.and found it all broken to pieces.' The frame, the shakers, the elevator and the Boreen were. 1 broken."..-'""The insido fittings were' bent, ci'a'pked and broken.. To put tl|e rnaclpo in' 'through working order would cost from jßvaniy : U> eightypounds. He had partly repaired-it.' He could not make it as good as it: was formerly, Could not replace tho original wood in the maohineV He'th'ought a /all down a bank would cause the damage done,' (To Mr Chapman) had h'ad'-'con-sider'able experience in threshing machines, A machine which was t&ken'care ofwouldlast six or seven years. The elevator wsb made of tin. Mr Chapman: I am afraid I don't know enough,of elevatprs to ask you any more questions abovuVt'hem. Witness considered the machine,-would cost about L 320 in England. Had'ma'de.. Bimiiar'e'njjmeß in Canterbury., .;..;: ';;•' George Heron, corn-dealer and/ohaffcutter, deposed that he bought a tfireshing maohirie from Mr Donald. It was shaky all over. He bougnt it with engine for L4lO. If the machine had .been, in, thorough good 'order hie'would have given • L9O more for it. He had it partially-re- . pasired for the present season; It was barely.'fit for work now. . To Mr Chapman. —He did not see the" machine working at- Mr. Donald) in selling the machine',; said there ■ was a little the.matter wjthiit',;b'u| that it Could.easily be asked,LEoo for it, and'he'gaye-iiim L4lO. To the Court.—DidJ'not ;i i'ti6w,?oost of repairs,, MrF. Gray .did not-iend in his bill very often, -' •. *; ; -" : '. V.'.. . E. Meredith, junior;\remembered Mr Donald coming to him about, the orops on the Wairongo Btat'io'n, and asking for a guarantee in writing for threshing Messrs Ramsay .and Goodgame's orops, He subsequently settled .with Mr' Donald for ' the threshing account, and at the time he - did so Mr Donald made no claim with respect to .damage done to' thejmaohine,: When original arrangement was made.it • was agreed that labor should be found to '" assist in working the machine. •. Nothing was said about liability for accidents and moving the machine, Eamsayand Goodgame were to find the labor for their corn'. The first 'intimation of a claim from Mr , Donald'for the maohine acoideutwas, he ' believed, in March past, Donelly was a \ bullook drover in his employ. At the time he had two or three team's which; he , hired but, On the occasion in "question 'j he hired'Donelly and his team ..to Ram-, j say and Gqodgarae,'- Dbnelly'w&a good' '• driver, He did not see the machine after it was smashed. He sent for Jensen at \ the request or Ramsay and Goodgaine, ,

Jensen LlO on the acoount of f|lpay andwGoodgame, The tarpaulin ijv!|i||covered the maohine showed signs !§!&• The corn elevator was not Ifpken during the 'capsize,' * To Mr seen a good deal of machinery, Could not take a'maohine to pieces and put it together again. The wood of the maobine was perished, a sort of dry rot. When he unpaoked the maobine he took wet dung out of the elevator. He settled with Mr Donald on thjr 25tb of April.. : On the previous year the maobine was moved,jointly by plaintiff and himself. Mr Donald said that that year he would only provide two men and theraaohine. He had bad no oropa that Beason; Rimsay and Goodgame requested him to pay Jensen's aooount of ten pounds.

To Mr Chapman.-Jensen pointed out to him the damage whioh had been done. John Bamsay deposed that Goodganio h\d the whole management connected wlth.the.threshing. 'Hehad never seen jju account from Mr Donald. £Tb .Mr Gray.-Mr Donald.was not hkely to presont,an aocount after Mr Meroditb had paid the money. James Goodgamo remembered the threshing of the wheat. The.arrangement was made with Lett, and Lett arranged with Mr.Donald. He never saw Mr Donald about it. Nor did Lett ever show him an account, (to Mr Gray.) He paid Mr Donald-through Mr Meredith,

, : JMr-' Chapman drew the attention of the Jury to the following:—lst whether defendant made a contract to move the maohine, and 2nd, whether Meredith was the man to move the maohine. '

,; ~The Court: The person whom the duty lies on is. (he person indicated by the .co.nteaot, ■ '; .' . Mr Ohapmiini'was not'putting I 'a point' of law but the reasonable probability. " i-Thisconuluded. the evidence whioh was recapitulated at considerable length to the' Jury' by the counsel for tl)e defendant, the counsellor plaintiff and the Court. The issues left far the' Jury to decide, were whether th,e.defendant. con.tracted to move the inaolime, whether .Donelly was »Hhe time of the accident .the servant of Ramaay and Goodgarae, or of the defendant, and whether there was actual negligence on the part of Donelly. _ The Jury after deliberating for a considerable time, returned a verdict for the plaintiff, assessing the damage done to ilie machine at £SO.

THIS DAY.

■Elms'Cohen, trustee in the estate of Bknnjst and Potts v R. H, Euiottb,

Claim £139105,

Mr Sandilands for the plaintiff, Mi Gray for the defendant.

The following jury was empanelled: Messrs Feist (foreman), Easthope, Ing- • ram, and Jago. Mr Jago who was called but did not answer to bis name.™ fined forty shillings. Mr Jago appeared a few moiqeqtß later and tqoH his p|aoe in the jury box, Mr Gray pointed out lo the Court that Mr Jago had been sent by the police to arrange for the removal of the body of a man who was killed at Taueru, and that his unpunctuality was due to this cause. The Court said the police ought not to give any instructions which would prevent a juror discharging his duty and / declined to remit the Mr Sandilands in Opening the case said that Mr'Benuett' was the owner of a piece , ofhnd on which Elliotte's Hotel was .erected. ?ennott.con i ira > cted to build tb,e house but npt,tl)estabiing, Subsequently Elliotte instructed Mr Potts who, was .Benijetl's. pariner to build the stabling,- ■■ Elias Ooheii'deposed I I am creditors' .trustee.in the, estate of Bennett .'and , .-Poland as such seek to ■ recover-the .amountfiledasanassot. TojMrGray'.— I kivownothins- as to the correctness of the charges. I.have.not' brought'the books of the firm with me, as I did'riot think they were necessarv. Demands were made of' Mr Elliotte for the amount claimed in June and October 1881. : I delayed taking aotion till I was 1 'ready lo sue other debtors in the estate.' ' Thomas Beiirett said, I carried on business as a builder with Charles Potts, : and subsequently became, a baakrupt. I was the owner of the hotel site. I agreed to build the house according'to plans and specifications, and to lot It to hjm for a term of tea years at five pounds per week (plans and snecilloatiuiis pruducod) It was agreed when I let him the house on Jan. 21st. 1881 that he should put up the outbuildings himself. After Elliotte took possession of the hotel he asked about the timber for the stables, and I told him that' ■ Potts would put them up for him. When thd stables wore finished about the end of March I saw him about a personal account and he said he could not pay me. I must give him breathing time. I told that I had not made out the account for the stables, and only wanted money which I had paid out of pocket, Ho came and asked me if he could use certain building material. I consented, and he used it for 'fencing and outbuildings. The sum of £125 charged for the eight-stall stable is a reasonable, price, ;.To.Mr Gray! Elliotte .paid me £3 credited to the cash aocount, I never made a direct application for payment for the stables. I did not apply to Mr Elliotte for the slables because my affairs were in Mr Beard's hands', and Mr Beard; advised Elliotte not to pay themoney.' I. instructed Mr Beard to make.a olaimfor the money,' I never myself gave Mr Beard a copy of the account. I put on distraint for the rent. I got a part of it,' Mr Beard got the rest of it. ■ I mortgaged tbe.Hotel to -a-Building Society. The Society placed Ll4 !)j to my credit out of the distraint.! was sued for damages.for an illegal distraint and judgment was givdh against roe.' Nothing 'was sold, under the distraint, tho. money wsb paid by Mr Elliotte. Mr Beard was'acting for' me. • I never examined the stables particularly, I goby my partner that the L 125 is. a reasonable oharge.for them. The alteration of rent from £4 to L 5 per week ■was not, I am prepared to swear, intended to cover stabling and other extra work. I )yas to build an Hotel of about twenty-six' or seven rooms for Li pet week from a j sketch which Mr :Elliotte had prepared.' 'Elliotte found that he could not get a lidense. unless more rooms were added so that afresh arrangementjiad to be made. Thefe'w'asjio arrangement made forme to put; »;.verandah flooring to -save mo filling .the. approaches, A : good-portion of the'flqoring.is of a fair quality. I never gave Mr Speed, Mr Osier's olerk, in; structions to draw np a lease. Williams and Barker did the rough work of the hotel. They are the men Who pushed me ..through the Court. I think they ate' able to form an estimate oj the value of the work, I should be surprised if one of these men valued the stable at 425. I should be greatly surprised if, he" valued ;tbe verandah at 4215. My sons kept the account of what stuff Elliotte took:- The books of the firm were handed over to the Trustee. . '

, To Mr Sandilands: The subject of the slabling was mentioned at Mr Ollivier'a office, Elliotte undertaking to build them. Elliotte never made any complaint to me about the stables.

Charles Potts, called, stated that lie was .apraotidal builder and was engaged'in fitting up the White Hart Hotel.- ■ While ■ the hotel was goinfi said' he was going to put up the 'stables himself. Afterwards, in consequence of instructions received from.Elliotte, the witness proceeded to erect the stables. • Some altera,,"

<?■■■ J iit.- ■ ■■■» ■ ■ ' .'"■■' ■■ •#%&;■ -:-.-.. tioni were made in the fittings of way- -;,, stables while they were being erecUd.- , Witness built them for Mr Elliptic. The jf prioe for the stables, £125, is a reasonable ■■'.■'■ ■■. one; ' :fy'--- ' ": To Mr Gray: We did not keep no account of the timber used by in the lean-to and verandah. Soflje used in it belonged to Elliotte, Bennetttold witness to build the stables, Witneiß kept the accounts of the firm;',. 'Bmipiy' booked them .to Elliotte, and after^'. ~ wardß filed. Bennett and himself fixed ■ the price at £125. Elliotteneveripoke to ■■-'■ ,- him about the payment for the stables,, and never rendered an account to'Elliotti for the money. The timber oharged in ' the verandah was only scantling. He charged the timber in a lump sum, but •'•'• oould not give.the items. He knew Mr ...... ~< Barker, and considered him competent j0.,. value a building. If Mr Barker, valued „■■'■. the stables at £2il% wash-honied 185;..... . verandah flooring at £2 the valuation . \.». would be a ridioulouß one. (ToMrSandi- S**p lands) could not say-from memory the total amount of timber uftd.' He thought '■■ it wpuld ,be about three thousand feet, ' and worth about £3 per thousand. James Bennett deposed that he .worked at the stables and. that alterations.wjßM made by the directons of Mr Elliotte. Ha .. ',. considered the stables were worth i120.0r .: (To Mr Gray.) Could, not say'how,• ....- much timber was used in. the stabling./: [LEFT SITTING,]