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Bonter vs Fisher
Mr. Campbell stated the case for the prosecution. It appears that Capt. Bonter in November, 1850, had sent the steamer Erie to defendant's Railway, at Portsmouth, to receive certain repairs. An agreement had been made in the first instance, between the parties, that the vessel should winter on the ways, and that in consequence of the amount of work to be done on it, the price for hauling the vessel out, would be only 10 pounds. Capt. Bonter, subsequent to the vessel being hauled out, sold her to Messrs. Hooker & Holton, and when he, according to agreement, was required to deliver the vessel over to those gentlemen, he found that he had to pay 91 pounds 5 s. to the defendant for repairs, before he could get it from the railway. The directions given to defendant when the boat was brought to the yard was merely to take the kelson planks off, in order to let the water out, but it was understood that Capt. Bonter intended to have the vessel caulked, and some other repairs done; but instead of following these instructions, the defendant had stripped the steamer up to the water line, and made up his bill to the amount already specified; Capt. Bonter, on finding how matters stood, refused to pay the bill. The vessel being sold, the repairs made by the defendant were of no benefit to plaintiff, but knowing the necessity he was under to fulfill his agreement with Messrs. Hooker & Holton, and in order to avoid litigation, he offered defendant 75 pounds as a settlement of his account. This offer was refused by the defendant, and the result was, that Capt. Bonter, in order to keep good faith with Messrs. Hooker & Holton, was compelled to pay the full amount of defendant's bill, but he did so under protest before witnesses, and with the determination of seeking from a Jury of his countrymen a restitution of the money which he considered had been unjustly wrested from him. The repairs for which he believed he was justly indebted to defendant, he calculated would amount to 26 pounds, and the difference between this sum and that paid to defendant was the amount claimed by Plaintiff, and which he (the Counsel) had no doubt would be awarded by the Jury.
John Bonter sworn - Is the son of Capt. Bonter; went with the Erie, in the fall of 1850, to defendant's railway; was in charge of the Erie at the time; saw the vessel afterwards; asked the defendant upon that occasion, who had given him orders to strip the boat; defendant said, no one had given him orders, but the state of the vessel required that such should be done; defendant at that time was aware that the vessel had been sold to Messrs. Hooker & Holton; plaintiff offered 75 pounds to defendant as a settlement in full of his account, which was refused; plaintiff sold the vessel in February; Hooker & Holton insisted on the fulfillment of the bargain by the delivery of the boat; witness in consequence went to defendant's office, who refused to give up the boat without receiving the full amount of his bill; witness then paid defendant 91 pounds 5 s. under protest, in the presence of Mr. Thomas Perkins, whom he took with him as a witness; Captain Bonter was sick at the time, and could not go himself.
Cross-examined - Was not present when his father, the plaintiff, first spoke to defendant, relative to getting the vessel hauled out.
R. Staunton sworn - Was present when young Bonter spoke to defendant, relative to the repairs of the steamer Erie; John Bonter told defendant, on that occasion, to take off the kelson planks, and let the water out, and to do no more to the vessel, until he saw his father.
Thomas Perkins, sworn - went with John Bonter to the defendant's office in Portsmouth; heard Bonter ask defendant if he would take anything less than the amount he claimed for the repairs of the Erie; defendant said he would take nothing less; Mr. Bonter then paid the 91 pounds 5 s., telling defendant at the same time, that he did so under protest.
The case for the prosecution here closed. For the defence, a number of the defendant's workmen were examined; the substance of whose evidence was, that the vessel required the repairs that the defendant had put on it, that some of the timbers and planks were cut seemingly with ice, some worn thin, and others rotten, that the vessel would not have been sea-worthy without such repairs, and that it was the rule to make such repairs whenever a vessel was in a condition to require them.
Mr. Hugh Hood, master shipcarpenter, was also examined touching the nature of the items of defendant's bill which he pronounced moderate and somewhat less than he (Mr. Hood) would have charged had he done the work. Verdict for plaintiff 60 pounds.
For the prosecution, Mr. Campbell. For the defence, Hon. J.A. Macdonald.