THE COURTS.

Press, Volume LVII, Issue 17227, 18 August 1921, Page 4

THE COURTS.

SUPREME COURT.

CRIMINAL JURISDICTION. - (Before hia Honour Mr Juetico Herdman.) PRISONER SENTENCED. John Daniels, having pleaded gruilty, at TVeatport, to a charge of having sent a false telegram, was presented for sentence. The prisoner, a Maori, had nothing to say. He had' signed his niate'a name to a telegram to his mate's mother asking money. His Honour said that thero appeared to be no escußO of any kind for the forgery committed, by prisoner. Since 1919 prisoner had been convicted sis times, including four for theft, and one for breaking and entering Prisoner was sentenced to two years' imprisonment, with hard labour.

CIVIL SESSIONS. . ALLEGED REPUDIATION OF CONTRACT.

Henry Poynton Bridge, public accountant (Mr T. W. Howe), sought to recover from W. B. Scott and C 0.., motor dealers (Mr Geo. Harper); £IOO damages in respect of defendant*' a-lfcgod repudiation of a contract to sell to plaintiff a 501 Model F.I.A.T. motorcar.

"Sir Row© said that the facte wero not in di3onte, and the-whole question was whether there was a valid contract. On October 15th, 1919, plaintiff signed, a, printed order form, tho essential portions of ■which were: "Please accept mv dc-posit cf £lO for a Fi.A.T. car, Model £Ol. Price £SOO, approx. Delivery: At Christchurch aa soon aB possible. Payment: Cash on delivery of order. (Signed) H. P. Bridge. We accept the above order. W. B. Scott and Company, per li. B. Scott." The sum of £lO was paid by plaintiff, and a receipt was given him. Ori September 2nd, 1920, defendants wrote offering plaintiff a F.I.A.T. chassis for £175; this w-aenot accepted. On November 19th the defendants 1 offered to supply a, car for £6OO, with tho stipulation that if, when tho invoice and documents arrived, "it was'found that the price exceeded £6OO. plaintiff should pay the difference; if the price proved to be lower, defendants should -refund the difference. Plaintiff declined this proposition, and on" December 13th defendants returned the £lO deposit to plaintiff, who interpreted _ this action as repudiation of the contract by defendants. The damages claimed represented the difference between the order price (£SOO. appro*.),.and the price charged for similar cars on rfshe date of the alleged repudiation of a the contract. ' Counsel submitted Jthat the document fulfilled alt the. requirements cf Chitty's definition of" a simple contract. • JI. P. Bridge, the plaintiff, gave evidence oh the lines of counsel's opening', and stated that at the time the contract was repudiated (December 13th, 1920) the price at whioh 501 Model F.I.A.T. earn was sold was £775. Mr Harper objected, and his Honour upheld the objection, to witness Riving evidence relating to the understanding* between the parties at the time as to the meaning of "approximately" as referring, to the price. Irvine Loaaby, motor salesman, gave evidence as to arranging the sale between the parties. Mr Harper called Leonard Brown Scott; manager for defendants, who stated that the delay in 'delivery had l»en due to Bolshevism in the F.I.A.T. works ia Italv; at one time the workers were in possession of the works. Over 30 ordeW had been taken -on similar conditions as the order from plaintiff. Of eleven -ears booked B.t "£sotMippTos.," delivery of only two had been rerueed . A • Mr li&Tper submitted that the document of October 15th, 1910, was not a contract for the purchaso of the oar, but only a more P order. The whole of the order must be read? if that were done, one of the chief essentials of the contract w«* absent—that was as re-' cards fixity of theories to bo'paid. Opposing counsel had not dealt with tie reservation appearing on the document: "I reserve I to myself the right to repudiate- this order if, on arrival, the car is not satisfactory either as regards price oi workmanship. This showed, at.onoey that the price was not » fixed price, even . within the margin of ''approrimately." That term was controlled and qualified; DjjrtHa reservation. . . His Honour said It seemed to h*y» been contemplated that the price might be suet as-to provonfc plaintiff accepting. ! : : &rHarper' «aid' that, assuming the price 1 Had leen £5% if was open to plaintiff to I decline to take %> car/becauso of the gen--etal reservation with regord to price; ana. defendants could not have, compelled plaintiff to accept'delivery. The document was an order form, not a sale note; it imposed on plaintiff no obligation to;.feuy. Counsel sub-; mitted that" the present case came with©;the principle .laid down by" Benjamin on. "Sale":—'H.the paxtiea agree thai .the price shall -»'•■ *s .subssqiiently arranged between them, no contract of. sale exists unless and until that price is fixed, for tho parties h*jr» jesorved to themselves an option as to the price, which is an essential ftlement of JJ contract, and the rule.; of 'reasonable pries' does not aoply as the parties have invpliedly excluded it. But a contract will exist if an intention can - bo .inferred that at any rate a reasonable price shall be paid, if the 'price is not fixed? 1 Counsel said) that there was no creation in this contract of "r#.»on»ble price," or "current market price," or'Ww t o^B wmed at by valuation by an independent according to contract law, would-be a, "fixed prise." The price in the dijeroncut was merely

an' estimate. • -' Mb* Kowe said that apart from the resarva- > tion there was * perfectly clear contract, and the reservation was not a. i«serrotion, of option within tho meaning of ;lh* passages cited by opposing counsel. Thoro w«s no un*limited option given; what was.given were .illusory options. In 'the event of bad workmanship the plaintiff had thei power to_repudiate apart from the reservation. Tho .resorWtion. a* to price eauld only have a meaning in the event of no price wingfixed: but in this caw the price had bwn fij«d. The payment of £11) brought the-saie within the provisions of the Sale of Goods Aot. *~' His Honour \ No doubt, but (he price must bo fixed;..there is no contract-if the parlies do not agtee on the prioa. , 'Mr Howe submitted that the price hiving been'fixed, tho reservation had no meaning. His Honour said that his decision must depend entirely on the interpretation, ol the order ■ forn»: Under the eesemtion it seamed to him that plaintiff was to have the right to repudiate if, on the arrival of the car, he considered the price unsatisfactory. The iijS>itien-np#Mired to be thai no piice was ever fixed; and he.was drivon to the. conelusion that the parties never agraed upon a final and definite price which was, not to b» agreed upon till the oar arrived in the ISomuiion. The case was one in which ho had to apply the ■principle "us laid down by Benjamin on "Sale." and judgment must- be for defendants, with costs as. per scale,, wiW uesses' eypensce and disbursement* to be flß?ed by the Registrar... .■• ~ . The Court adjourned till 10.30 a.m. to-day. . . CHAMBERS. Probate in\ tho estates of theiollowngt deceased persons was gi-anted:—Elizab'e'h Volkr (Mr T. S. Docro), Sabina Kelson (Mr 0. 's. Salter). .

MAGISTERIAL. ■■'..

• WEDNESDAY. (Before Mr Wwern Wilsan, S.M.) DRUNKENNESS. , ,

' Mary MeKegney, charged with drunkenness, was sentenced to one month's imprisonment. Robert <3eghor», for being found, drunk on the Chrlstchurch Hallway Station, waa fined £l. , THEFT. '■••■:■ Francis Morcace, aged 29 years, was chargal with stealing an overcoat valued at £i. ss,'the .property of G. *\V. Plinvwll. Accused, who- pleaded that- he was drunk at the time, was convicted and sentenced to seven days' ♦ imprisonment. Frank Stapelton, aged 18, who pleaded guilty to the thpft of £9, the pnptrty of Harold Hanoi, at Waiau, on July Bth, was convicted and Admitted to probation for twelve months. He was ordered to repay the £9 in weekly instalments of 10s FIREARMS ACT. •

I Leonard Booze, charged with being in p<>saessiou of an unregistered firearm, was fined 08, and costs. Frcdericic Prirat and Donald CuUen, on similar charges, were also fined 5s esor,. '/ ' EEMANDED. Alfred- Sector, on « charge ol taring- committed an indecent act, was remanded to appear as August 19th. SHOOTING PROTECTED GAME. , Harold OartU pk«ded guilty to » charge of having killed protected native game (jmkeko) at Kin bunt on July.2oth. Ho was con-rioted and fined £3 and costs.

IN aiHEBt PLACES.

BUNEDIK CBD4TKAI* SESSIONS. ; (Miss MSOCUTIOIJ TKLSOJUV.V SUKEPIN, Aupwt 17. At iha Supreme Court George Sal-via-Thomas, aged 19, and George Andrew McWitliwiu, aged 00, on six charges of breaking ana entering 'and theft, were each seatecoed to six months' imprisonsMnt on each charge, sentence to be vumutetiTe. Each was declared an habitual criminal. James Cameron Brown, on a oharge of false nretencea

at Napier and Dunedm-,,-w «»t«°£ {o , two years' imprisonment and declared n habitual criminal. lYederick Edward CkxKe "jtori, charged with theft, was sentenced to one year's imprisonment an* declared wi habitual criminal. Thomas William EU». for forgery, and Sebastian Samuel Crawford Vallis, a- Government servant, on two charged of theft, were both admitted to Howard Tipping was charged with tha*. on Mav 4th last, he did attempt to Alfred James Pottinger. There was a second count against the accused of causing actual bodily harm under such «ircumstfncea that, if death had been caused he would have been guilty of manslaughter; and a third count of assault eo as to cause actual bodily ham. The accused pleaded not guilty. The occurrence wluch led to the charge took place at Port Chatoere. The accused was the sixth engineer of the oversea steamer Mahia, and Pottinger wa» the fourth engineer of the same steamer. The two men had shipped at London for tna voyage, and on the- passage out had apparently been the best of friends The other officers said that there had been no .quarrel between them. On the afternoon in question Pottinger went ashore by himself. He met the accused and another eegmeer named Robertson, and they went to hotels and had several drinks. . When thev returned on board the versel a Quarrel ensued, and the accused drew a revolver and shot Pottinger. The accused was found not ffuilty on, the first and third counts, and guilty on the second, with a strong recommendation to mercy. Ho was fined £3O.

AUCKLAND CRIMINAL SESSIONS. (PRESS ASSOCIATION TELECIiAMS.) AUCKLAND, August 17. At the Supreme Court to-day William Llewellen Trevethiek/was sentenced to reformative treatment not *"* years, for obtaining goods valued at £32 from the Farmers' Trading Company by falsely representing that he wn• » son of a, shareholder. Helen Sinclair Mac Donald (17), who admitted two charges of counselling the foicenr of her brother's name m connexion with his Auckland .ravings bank _ account, was sentenced to three months imprison* moht, with a recommendation that she be placed in, an industrial institution. John Robert Draffin (23), who was stated to have Tcsisted, for five months overtures made by the girl'MecDonaM to forge her brother's signature, was admitted w> probation for throe years, and ordered to restore the money drawn from the bank (£l4. 16s) and pay the oMta of prosecution (£3 18s). Flow EUen "Waite was sentenced to one months imprisonment with bard labour for concealment of birth The case was the outcome of the discovery of the chaired senrains of an in!fant in Mount Eden Prison laundry. Matina Tnar who admitted obtaining £22 from the Registrar of tho Native Land Court by impersonating her brother, was admitted to probation for two yews.