DISTRICT COURT.

Waikato Times, Volume X, Issue 593, 9 March 1876, Page 3

DISTRICT COURT.

Befora His Honor F D Fenton, Esq, Diitriot Judge.)

Hamilton, Wednesday, Bth March, 1876.

Thos StccoMßß v Wilmam Moon.— A special jHry of four was sworn to try this oaie. Mr Hay for plaintiff. Mr Whitaker for the defence.— Claim, £39 13« lOd. This oltim was for a breach of contract. A contract wat made betwepn plaintiff and defendant, under which the plaintiff was _to perform the ploughing of certain laad, and it was contended that defendant had not performed his part of the contract in getting the laud into proper order for the plough, Thos Seccotcbe sworn, tinted — I am a farmer residing at Waitoa. On the 4th of May last I made an agreement with defendant about ploughing his land. Mr Whitaker asked if the stamp had been affixed to the agreements the time of making. Mr Hay admitted that the -stamp was not affixed atfthetime of execution. Mr Whitaker protested against the agreement being receivedh'n evidence showing that by clause 35 of the Stamp "Act, 1875, a deed if stamped after -execution mutt be stamped by the Commis■joner. ''This had been stamped since ereoution and not by the Commissioners. Mr Hay on the part of the plaintiff paid the Sne6f£s and tha price of the atamp, and the agreement was then received in evidence by the Court. Examined continued— ln -pursuance of the agreement, I bought horse feed at Cambridge to plough 60 acres, carted it 33 miles to my own place, and th»n carted it another 1 10 miles to defendant* land. I commenced to plough in June, some five -weeks after the agreement was made. Theiand was in an unfit state to be ploughed, and only a portion oleared at all. The land was part fern and part small'ti-tree. A fire bad been ran through it, but in some placet the fern liad'not been 1 burnt,'»nd stood tip strong and tall in patches. The ti-tree and koromiko bushes w ere tUnding 3ft to 6ft high in placet In some places the koromiko had been cut and w»s lying about in heaps. At I came to the heaps I stopped the horses and moved the heaps on td the ploughed ground. I had to do the same -when h»ri»wmg. ■• I wrote to defendant describing the staipoftbeland. The day after I commenced plttfghing, Mr Moon't foreman, Mr Stubbing, came on the land. I pointed out the unfit state of the land) and he "promised to at once clear it, He worked trdsy land a half. It was not then ■ufficiently cltared to be ploughed without inoon▼enience. 'Mr Moon came on the ground about the 10th of July. I told him plainly he had not carried out his part of the contract, and that I was there on the land both" ready and willing to plough the fuli 60 acres agreed on between ut — that I had' provided hor»e feed, and if kept •waiting. I should' expect to be paid the same amount as I should earn if my horiet were at •work, at I should taave to feed them. He said he would get some natives to clear the ground. They did a little clearing, but there was no fur« th«r land made fit fbfme to plough. The loss » of thu portion of the ploughing made the work too small in quantitj to allow at fair profit oi the job. I comider £3 10s a fair charge for the cartage of the horie feed. Mr Whitaker contended that plaintiff had no ' right to charge hit prdfit and expeot defendant to cart his horse feed to the spot. Hit Honor ruled that the cost of carting the horse feed to the ploughing could not be charged The next item of £4 deterioration of value in feed saved was aho struck out. Examination continued — Mr Moon paid me for the ploughing at different time* as tho work went on for the 35 acres ploughed. I did not get a final settlement. I nerer settled the mat-ter-finally with him. When 1 first «poke to him about thu action, he laughed and said, " I didn't plough the land." I told him I was there prepared to plough it and he didn't give me the opportunity of doing so, and that L should expeot a fair compensation for the money I had c x- ( ponded andtbe labour and lois of time occasioned by hit not completing his profit. I tcld him I did not wish to be hard on him, and I would take either £20 or £35 to settle it. Cross-examined — I made ttpnhcation for compensation in October, 1875. I got paid for the land ploughed early in 1875. Mr Campbell was present when I received the first cheque, the tecond was handed over to me in Mr Campbells ■ store. lam not sure whether If r Campbell wat present.' I don't remember having any conversation with Mr Campbell at the last settlement. I don't recollect telling Mr Campbtll at that time that I had no further claim for the pbngbing. I am 1 not prepared to swear, that Mr Campbell was not* present. > I sent in aTfritten amount to'M>;Moon after the lait settlement; the account produced 1 is the one. » The lait item " ploughing bilance £20 "-refer* to my d«ire for a £»al settlement for the whole 60 acret. Mr Whitaker then elicited evidence to thow • that thvpfofit tutd-f or on ploughing 22 acret, ' £22 wat excessive. Donald MoKinnon sirornj-said, I considef the land rery indifferently cleared. Where the fir* bad been" it wat all very well, but the patckes re- ' saining left the ground in a bad ttate for ploughing. -He could not plough through the heaps without-removing them. A fair contract prioe for ploughing it 35t per acre. I can form no idea what the proportion of profit would be. It wat utterly impossible for any plough or horses to have ploughed the 21acrei, the remainder of Mr Moon't contract. Croti*exammed— -I oannot swear that the 21 •oret I have alluded to, wat the 21 acres forming the subject of this action. I believe from hear Bay that it wat co. Whether tb.it wat the land or not, there wat no blook of il aoret nor yet of 5 acret near there fit for ploughing. Frank Stukbins sworn, said* 1 am 'Mr Moon's foreman. I cleared tht land that wat ploughed— 38 acret. It wtt thoroughly well cleared. There •wat no koromiko and ti-tree standing on it over a foot high, and this had been burned. Such portions' at wtre not burned loleartd afterwardo. I don't know that there were any heaps of rubbith. If any pertont twore that the ground wat badly 'cleared they were wrong. The 21 acres were not cleared. To Mr Whitaktr— Th« 21 tores could have *v fceeu ploughed. ... „ . . * Bxamination continued.— lt would have been pottible, but it -would have been a- rough job. I have ploughed worte mytelf. To the Court— lt wat left because we had not tine. I wat tnza^ed on other work. I cleared tht- 38 aoret bj order of Mr Moon. He told me • if I had not time to do more, not to mind it. This concluded the plaintiff's caie. For th« defence Mr' Whitaker called ■ William Moon, who being tworn said, I am a farmer residing at Waitoa. I was a party to the agreement produced. In pursuance of ■it I caused 38 acres to be cleared for ploughing. 'I paid for 38J acres of ploughing- and harrowing. I made the lait payment on account tome time in January, 1875, in Mr Campbell'* office, by Mr Campbell. Mr Campbell asked Mr Seccombe if that covered all transactions between him and myself. Mr Seccombe, to the best of my recollection, said "yea." He certainly made no further claim. I firtt heard of a further claim on July 20th, 1875. He had ipoken to me about it before, saying I ought to make him an •Uowance for being nnable to plough the 21 aeret ; bub that wat the fint stated turn deminded I refuted. When the agreement was made I understood it not to mean that 60 acres should absolutely be ploughed, but that notrmore than 60 should be ploughed. I did mot comider mytelf bound to clear the 21 acres. CroM-examined : Mr Beccombe wat in Mr Cwnpbell't office the day I paid him the cheque. I cannot at this length of time swear to the words Mr Campbell ustd to Mr Seccombe. To the best of my belief they were : " Does thU oover everything between you and Mr Moon." To the best of my belief he replied "Yet." I don't remember being in the Hamilton Hotel in October, and having a long conversation witfi plaintiff. I will not twear that he did not then demand £25 of me at compeniation. I believed when J paid the last cheque in Mr Campbells

office that the account was paid in full. Sir Campbell obtained a receipt in full. Mr Whitaker explained that the receipt had not been produced as it was at Napier. Mr Whitaker for defendant argued that from [ the vague terms of the agreement it was never intended that Mr Seccombe should claim the right of ploughing the full sixty acres, but only I such land as was prepared, not exceeding sixty acres. The question for damages loft was : lstly, loss of time in ploughing 38 acres alleged to have been badlj ploughed, and 2ndly, loss of profit claimed for boing prevented from ploughing 21 acres, the balance of the CO acres. Mr Hay replied, rebutting the ohftrgo of vagueness «"n the terms of the oontract, and argued that it was more binding on defendant than on plaintiff, at regards the quantity ploughed. His Honor briefly •ummed up, pointing out that the allegod invalidity of the agreement by defendant's counsel would not hold water. The Jury retired, and on their return gave ft verdict for Plaintiff for £16. Mr Hay applied for costf. • Mr Whitaber opposed the application on the ground that the verdiot was within the jurisdiction , of the B M Court. After hearing argument on both iid«t His Honor refused to allow costs. The Court then adjourned until this morning.