ALLEGED BREACH OF CONTRACT.

Gisborne Times, Volume XXIX, Issue 3378, 20 November 1911, Page 5

ALLEGED BREACH OF CONTRACT.

timber rights involved.

‘ SUPREME COURT JUDGMENT.

On Saturday Mr W. A. Barton; Registrar of the Supreme His Honor Mr Justice Chapman’s judgment in the case of Jas. Alexander Newman and Thomas Long-(Mr J; W .Nolan and M>- T. A. Coleman) v. Jas. B. Poynter (Mr Burnard). The case was a claim for £497 10s damages for alleged breach of contract in connection with the right to cut timber.. The defen-duut had pa.iu £IOO into court. . In ' the course of his judgment His Honor says: —The question, . then, is what damages are the plaintiffs entitled to recover? The evidence is very contradictory. It is conflicting as to the number of timber trees in this very small piece of bush and even as to the quantity of firewood stacked on the ground. The plaintiffs, however, on the strength of the contract incurred expense in preparing to cut out the timber and firewood, and their contract has been broken). This of itself raises the presumption’ that they have suffered damage, though that presumption gives no assistance as to the amount. Plaintiffs paid £SO of the purchase money, and have received £6O for firewood and battens sold. One of the plaintiffs had no experience in such matters; the other had some, but it does not appear that he had been regularly in the trade. The contradictory character of the evidence may be judged- by the fact that one of the plaintiffs’ witnesses estimates the milling timber as likely to yield 120,000 feet, another calculates it at 84,000 feet, while one of the defendant’s witnesses, estimating it tree by tree, brings it out at 27,394 feet. This witness was speaking of white pine only, but tbat constituted the greater part of the timber. Speaking generally, the defendant’s witnesses put the quantity at about half the quantity at which the, plaintiffs’ witnesses estimate it. Some of these witnesses only speak of 28 timber trees or thereabouts, and say that the whole concern is too small to justify putting in a mill or even putting in a road to haul out the logs. Apart from the parties themselves the plaintiffs called a sawmiller and a timber merchant from Gisborne, and a valuator, who had been in the timber trade. The defendant called two builders from Gisborne, a timber merchant from Hastings, and another from Gisborne, two sawmill owners from near the place, a timber and firewood dealer from Gisborne, .besides several sheepfarmers and others having a knowledge of the matters in question; In my opinion, giving credit to the bona-fides of all these witnesses, the weight of evidence is greatly on the side of the defence. I do not think that the plaintiffs could have made much out of the speculation, while there was a great risk of their losing money bv it. They had expended money, but they would have had to expend a good deal more before getting out the milling timber. Their somewhat extravagant claim suggests to my mind that they had based their calculations in purchasing on false premises..,.,. I have gone through the evidence and endeavored to weigh it. The sum at which I have arrived is perhaps more than can be strictly justified by reference to the weight of evidence. Admitting, however, the existenoe of a presumption against the defendant, who is responsible for breaking the contract, I think that the proper sum to allow the plaintiffs is £BO, for which sum they will have judgment. As, however, a larger sum than tins was paid into Court, I allow the plaintiffs their costs of statement of claim on the lowest scale only, together with £5 5s in respect of the abortive defence, and I allow the defendant the cost of preparing for, trial and of the trial as per scale oii the amount claimed and £8 8s for the second day, with witnesses expenses and disbursements to be fixed by the registrar. The sum. in Court will he paid out to the defendant, less the difference between the sums allowed to the' plaintiffs and the costs allowed against them, those sums being paid to •the plaintiffs. , .. . '