DISTRICT COURT HAMILTON March 23rd, 1877.

Waikato Times, Volume X, Issue 744, 24 March 1877, Page 2

DISTRICT COURT HAMILTON March 23rd, 1877.

Before His Honor Judge Benton.

Robert Lamb v T Wells. This was an action to recover £IOO, the price agreed to be p ad in timber at 12* per 1000 feet for a plaungrmaubine, delivered in November 1875.

.Thomas Wells, sworn, stated : I a m a timber merchant residing in Mercer. In 18/o plaintiff delivered to me a planing, macbirie,.-the; price of which was to be £IOO, payable in timber, nob cash. I delivered that timber to plaintiff at 'my wharf, as the mill cut it. There was a memorandum as to v the timber. That produced i, it. Such Sf the timber as plum iff baa not fetched away is at mv 10,000 feet there now. I will Bwe ar there 1S over 7,000 feet. My foreman told me he had cut J7.000 feet 'al ogX" The fbim 6 a3 r *? eat tm * ™ The foremaa haj died since then. DecdXr 1575 °T nearly 7 > oo ° *■* in in if i - u ' I neFer P uc a °y timber oa board-a barge, because plaiutdf neve[ en the barge. Had he sent the.barge I would have done so.' It waß part 0 f m _ Jgreement to place it on the barge whS' £ frT Tt ifc * cannot "member send" h \ ht -f gaf \ Mr Lamb **» »• eond it, but it Woa shortly after he took.

theliMb aw , 7 . Tie timbor now lymg on my wWf Ui i a bll at.te. ,Lba sappy portion ij bUak with exposure, l took no stepa to protejb it from .tho weather.

s To the Ojurt: Timber fjr ordinary use is al wajs piled up i„ ttf'e .open air. , ;\ Kobert Lamb, miller, .resident at Ngaruawalua, deposed to selling tha planingmachine to defendant in November 1875, pbe paid for in timber. £f all receivrU only abjut £lO worth of timber; About thrae or four months ago was informed tor the first time that the remainder was cut.

Considerable discussion arose between counsel as to the of the agree, mont, the question turning upon whether the barge, on which deliver/ was to be given, should bj supplied by plaintiff or defendant.: ..-.-„...„ ..:.:; . .

Plaintiff re-examined : Defendant's mill w situated -on the Mangatawhiri Ureek j barges go up there for the purpose of removing timber which is geneS y »? Bat * W * y b * tliem and b y steamers. Ibe Mangatawhiri runs into the Waikato Kiyer, on which there are ateamew regu. larly ruaning. , .OroBS-exa,mined: 1 never sent a barge up tnn Mangafcawhiri. , neither did my agents. The W S TCo never, that! am aware of, Bent a barge up that creek •»t my request.' The memo produced is mine. [Memo bearing date May 15th, telling Mr Wells that the Company would send a barge to Mr Wells for timoerj. , I admit receiving £4O Iss worth of timber under tha contract. I sent a barge for that timber. . I did not get notice that mjre timber was ready till three or four months ago I got a letter trom him on. the 15th May last. [Letter produced, .telling -plaintiff there was a small barge-load of timber waiting for mm on defendant's wharf some six weeks or more]. Defendant has often told me during the last three or four months that the timber was ready. 1 did not refuse V X Jj & k fßt time he told me it was ready. not say last October 1 would get tfeal, of Cambridge, to sell the timber and 1 would send a barge for it. I took no steps to obtain delivery of the timber. I had no Bpecitti agreement with the Steam Navigation Company for oarrying my timber. I paid full rates for lumber freights. To the Court: No public oarge, steamer, or carrier goes past defendant's wharf,, or calls, unless requested. Thisclbsed the plaintiff's oa.e. f T Wells, oalled for the defence, stated : l]he memorandum produced is the list of timber to be. supplied as a consideration for a planing.machine. I gave notice that a certain portion of the timber was ready, and plaintiff sent the barge. 1 loaded it. The balance was/ cut within two months. I gave him notice at once that the timber "was ready. I rapoatedly fold him. He. sail hj? would send a barge for it. Ho never refused to take it, till the commencement of the first action. On one occasion in October last, he said he would get Noal, of Cambridge, to sell ,it, : and WCluld himself send a barge for it. fie repeatedly said he would send for the timber. ;• ' :

Cross-exa-nined : t never informed Mr Lamb that the ba'.anaoof the order had been

placed on a barge a waiting, its removal. The reason was hi never sent the barge. To the Court : I told him repeatedly that the "balance of the order" was

ready for him. The consignee generally makes his own arrangements, but sjtnetimes it is left to the timber merchant to consign through whom he pleases—but no? as a rule.' :

John Collinson, sworn, said: I am a man at the tail of the saw. 1 cut Mr Lambs planing machine order. The order was completed,; I think, there was close on 17,030 ft cut. I can't say whether the order was completed, but the order was scratch's! off the board in the : ordinary, way of business aSffinished with. "The court said there were tw ; o points for consideration—quality and, 'delivery. It was clear to the court that before :the .timber could be put oh the barge one of the two parties to the action mußt send the barge there.., If defendant had put it on bis!ownibarge : it would,still havebeeh udder bis control. If this had been: meant /the place wh.efe the timber should be landedv.say Ngaruawahia, would ; havejjeen mentioned. The mind of tin court .was that the meaning of the arrangement'was that after the timber was put on the barge the two v partiea'in tended that '.the liability of' the wood cutter should.cease, but*that the: purchaser, ehquid 'convey it "away. ; As to the" quality 'there was no evidence to go beypud the 7.Q00 feet sworn to by the defendent. The court then g*ve judgment .for plaintiff for the balance £l7 and coats.