DISTRICT COURT

Wairarapa Daily Times, Volume VIII, Issue 2408, 24 September 1886, Page 2

DISTRICT COURT

fASTERTON.-WEDNESDAY.

(Before Judge Davy). MoOakdle v Taylor.

On the Court opening this morning, Mr Shaw objected to plaintiff callinsr everyone as witneses who.had bought trees and shrubs. The Court adjourned for a

short time to allow the counsel to come to some arrangement. On resuming, Mr Bunny informed His Honor he could not see his way to shut

out the testimonials lie was going to

bring, as regarded the value and number of plants disposed of. Mr Shaw asked His Honor to rule on

the point of plaintiff proving the date of the refusal of defendant to let the plants go His Honor ruled it was necessary to prove the date of refusal before the caso could proceed. Mr Bunny said was hardly fair to bind him down to one particular date, the refusal existing for some time. Mr Shaw said he should deny that there was a refusal at all on the part of his client.

Mr Collotte deposed that in June last he purchased eight dozen of Abies and Lawsonianas from Mr Tayler at 4s per doz. and sold them by auction at 8s per doz. He subsequently bought three doz. of each kind of these plants at the same price when Mr Tayler told him they came from his nursory on the Ist July. He bought eighty pears, one hundred and fifty majethis, fifty sycamores, eighteen large walnuts, thirty small walnuts, eighty mountains ash for 10s the lot. He valued the whole of his purchase at about £2O, and he only paid £6 10s for thorn Some j of them were, m a dying state, but were generally pretty good, On his first visit he noticed four patches of nursery plant. The whole of the stock except a small percentage, grew into healthy plants. He saw some rhododendrons at the place on the same visit. Some of them were named. As an expert he fixed the market value of tho named rhododendrons from 5s to 21s each; seedlings, Is each; grafted fruit trees are valued wholesale, one year grafted £2 10s, two years grafted £3 10s; grape vines from Is to 3s each ; roses £3 10s per 100.

Cross-examined by Mr Shaw: He was never in the garden before Mr Tayler had it. Did not know who planted it. Ho

howed defendant a price list, and said le would give that pride, hut that was tor lines. He knew Mr lorns sold lawsoni-

anas many a time by auction at 2s u'd per dozen. The seedling rhododendrons were planted in a trench. ■ The named ones were planted about the grounds. Did not know how many. Mr Taylor allowed him to take his pick when he bought the trees. Mr Tayler picked some for him. He saw nursery ground planted by Mr Taylor. By the Court: Nothing was said whether or not it was Mr McCardle's late stock.

W. MeCardle Junr. sworn said: He was the son of tho plaintiff. Sometimes he conducted his fathers business, was familiar with the prices to bo charged.

He went with Charles Lennox to Mr Tayler's in May lifting trees, had nearly finished lifting the stock when Mr Tayler stopped them. Had been at it about a month. Heeled the stock in r.lio ground ready for removal. Had made a list of his fathers property some time in June 1885. After posession had been given in March, went down purposely to make a list. (List produced). Witness wuuld positively swear that the articles were in the ground at the time he made the list before he lifted the trees. It was before the 20th June they started to work. They started to work lifting the trees on May 16th. It must have been in May that he mado the list. A list of the values put on the stock by witness was handed in and admitted as his evidence. Examination continued: They were stopped by Mr Tayler, near the end of June from lifting the trees. He informed his father. Three days after they were sent down again and lifted the rest of the trees, finishing the work by June 29, Was not stopped a second time. Remembered a sale at Lowes and lorns on May

30th on account of his father. It was all a part of what was on the list. Some more was sold in June by auction, under ten pound's worth. Various other trees were sold privately. On Juno 19 a lot was sent to an auction at Wellington, about £B. The stock when lifted was properly placed, heels into the grounded covered with soil*Crosß examined by Mr Shaw. It was only a temporary way of putting in the trees. The Rhododeudrums were put underneath'the benches in the soil, He could not romomber how many roses went to Wellington sale. He did not remember any othor sales, He did not put down in a book what he sold but on a list, He did not remember selling apple trees to David Donald. He would not be at- all suprised to hear that he had taken over the trees to Mr Donald and got paid, He would be surprised to hear of a half-a-dozen such instances. As far as he remembered Mr Tayler said they would have to stop work until he saw his father. He may have started to work the day but one after. He never came for tho stock after he finished. His father did not tell him to dispose of the stock or tako it to his new residence. He did not see the stock again, Would not object to see some of it. John Berkinshaw, laborer, Masterton, deposed. Was ono time working for plaintiff. Assisted in planting some imported stock for him tho year before last. Was at work for Mr Taylor at his nursery in July 1885. Ho planted about 1000 apple trees 200 plums, 30 pears, 2000 abies, 800 to 1000 lawsonianas, and 200 walnuts. He planted them in nursery rows. He got them from another part of the garden where they had been heeled in. Mr Tayler directed him to do the work. Saw rhododendrons planted in the end of the greenhouse. They were there when he came away. He had seen the trees ho planted out before in the possession of Mr McCardle, part of which was his stock at one time. Ho introduced Mr McCardle to Mr Tayler in reference to the purohase of the place. He showed Mr Tayler over before the purchase. He was in charge of the place at the time. He had been on the premises last summer .Some ot the stock ho planted was thero. He did not notice how many. Cross-examined by Mr Shaw: Ha i simply took tho trees out of the ground and planted them in nursery rows. The ■ nurseryjwas not in good order. It was very rough and wanted digging. He was more than eight days working for Mr Taylor. He could not remember .what money he got. It did not trouble' him, I He would not be surprised to hear it was

ten and a-half days, amounting to £3l3s. He started after July 16th, the date he had been told the stuff was to hare been removed.

By Mr Bunny: Lennox came down to Bee Mr Taylor when he was there. He. did know for what purpose he came. By Mr Shaw : He did not recollect saying that Lennox told him that McCardle said he would ruin himself or Mr Cox over the matter.

The Court adjourned for lunch,

The Court resumed at 2 o'clock,

James George Cox, of Fcatherston, deposed : Am mortgagee of property occupied by Tayler. Had a mortgage previously over the property occupied by Mr W. ,W. McCardle. The amount advanced was £750. The trees were numbered and valued ; the ground was only 10 acres. Took the trees as the greater part of the valuation. Thore were 2000 trees. In June 1885 he heard of Mr McCardle disposing of trees, part of security. Went to Wellington and enquired at the auction room, where he was informed the trees were from Mr McOardle's nursory. Interviewed Mr McCardle who said the trees were not from his nursery at Masterton. An arrangement was made that tho proceeds of that sale were to be impounded until he ascertained the truth of the statement. Sent Mr Tully to examine the orchard. Ho reported there were 800 trees short. That put his back up. He had indirect knowledge that Mr McCardle had gone out of possession of tho orchard. A letter was read from Mr Cox to Mr Tayler asking him to act for him in preventing Mr McCardle from taking away trees,

Witness after that offered to relieve Mt McCardle of his security but the arrangmentwas never carried out. He still held Mr McCardle to the security. He gave Mr McCardle distinct notice that ho was not to reinovo any trees contained in the bill of sale unless other security were

givan. He felt certain a great number of the 2000 trees had been removed. An arrangement was made with Mr McCardlo that Messrs Tully and McCardle should go over the orchard and count the trees. He had never since givon Mr McCardle permission to remove the trees. About £SO was the security Mr McCardle offered as a provisional security in exchange but he never completed it and he still held Mr McCardle to the Bill of Sale, He had been led to expect from Mv McCardle being a professional gardener that .the garden would be kept in a better state than it was. By Mr Bunny: Ho did not give Mr McCardle permission' to remove the trees. He felt certain that the security was not there, and they were not. The £750 was advanced on the house, laud, and 2,000 trees. He had a bill of sale over the I nursery stock as collateral seourity. Ho proved his suspicious were correct, and that was proved wheu he sent Mr Tully up. He would prefer Mr Taylor to Mr McCardle as security. He did not remember over preventing Mr McCardle removing his nursery stuck. The Court adjourned.