THE COURTS.

Press, Volume LX, Issue 18014, 5 March 1924, Page 5

THE COURTS.

SUPREME COURT. CIVIL SITTINGS. (Be/ore his Honour Mr Justice Ua-cc-regor.) alleged fraudulent rbpkeSENTATIOIW William Edward Richardson, garage pf°~ prietor, Jvaikoura "(Mr J. W. Hunter, instructed !>y air Jkaymond kaikoura), claimed damages from William i man Blackwell, companv director, Chnsichurch (Mr M. J. Gresson, with him Mr -> ; V ■ hite), in respect of alleged friiuduieiw misrepresentation, connected with the ex change of motor-cars. Tho claim was or £39-9 lis 6d, the amount of judgment ana costs given against the present plaintiff m an action for the recovery of a Studebaker car; interest thereon at 6 per cent.; lis 8d plaintiff's solicitor's costs m ® previous action; £22 travelling expenses, the costs of the Dreser.t c ti° n i 3,11 other relief the Court- sought fit to award. The action was heard before a jury twelve, of which Mr G. D. Cameron was chosen foreman.

The statement of claim set out that P 1 ? Ocl-ober 17th, ID-2-2, and at »Ji material times thereafter, defendant was manager o and a director and a shareholder m ® liuick Sales, Lt3.; that on the date mentioned above plaintiff called at the busines premises of the company for the purpose o effecting an exchange of his Ijiree-sea er Buick car for a five-seater. The .dcienciari negotiated with plaintiff for an exenange of a Studebaker car for the plaintiff scar together with the sum <sf £ls to be P® ,ld * plaintiff by way of equality of exchan„e. t-o induce tho exchange, defendant a alleged to haive represented that the o u c baker was the property of the company, whereas it v. r .T3 alleged that it haft been left by Ernest Henry Henley, who had an option to purchase the same from W» i ajll James Cunningham, of Sumner, retired eni giueer, who was then tho owner of 0 car: Cunningham had never consented or authorised any Bale or disposition of le 1 car. The plaintiff, being unaware of these facta, completed the exchange; and it was alleged that tho defendant mado tho representation, on which tho exchange 'was effected, fraudulently. Subsequently the plaintiff sold the car to one Borthwiclc, o Kaikoura. Cunningham eued plaintiff anci on October 31st judgment was given m favour of Cuimingham for £349, togetnei with costs, amounting to £SO 12« 6d: the plaintiff also incurred costs to his solicitors totalling i&t Us 8d; also travelling expenses, £22. It was alleged that when Iho exchange was effected the company was to tlie knowledge of the defendant insolvent, and that subsequently all the assets ol the company were taken possession of by ft receiver apT>ointecl by the Bank of r>ew /iealand: these assets were sold by the to tho Blackwell Motors, Ltd., of which the defendant is the manager and -a shareholder. , The statement of defence was a- general denial of the allegations mado in tho statement of claim. .. Mr Hunter, in opening, said ho would have to take them back some time eo that tlioy could understand tho very peculiar story that came before them. In a ' l " uary, 1921, Cunningham entered into a bailment of the Studeba&er cax to E. E- Healey, • taxi-driver, Asliburton: the oar was hired to Healey for £175 with the option of purchasing it for £669: Healey was not to soil, pledge, or otherwise deal with it to the prejudice of the owner. By July, 1922, Healey had paid otf £3OO. After some negotiations, Healey effected an exchange with the Buick Sales Co. of the Studebaker for a Perry ear, but Healey never completed the conditions under which Cunningham and consented to the exchange, and consequently Cunningham never parted with his property in the Studebaker. Counsel detailed the circumstances which showed that Blackwell was fully aware of the state of thing's as regards the Studebaker. On August 6th, Cunningham wrote to tho Buiok Sales Company, stating that Healey had not signed tho security ower the Perry, and added: "If nothing satisfactory can be arranged, I will have to take possession of my Studebaker car." On September 30th, Cunningham rang up from Ashburton and told Blackwell that Healey had not signed the security: Blackwell was, apparently, not surprised, aa Healey had already informed him of the fact, and Blackwell told Cun-

nisgham: "I will attend fo it—l'll fx it yP- . The following month the exchange "° Richardson was made; Bicliardson afterwards sold to Borthwick for £375. On Jans' 1 ?' 16th, 19-23, Cunningham wrote t-o the ±>cick Saies Company demanding the Studebaker car, or its value. Instead of protecting Richardson, Blackwell got from Heir a security over the Perry car, and +S , • ' the Perry was seized under 0 hill oi sale. After the bank had put m a receiver, Blackwell wrote asking Richardson if he would consider taking- a Buick five-Beater in place of the Studebaker. Counsel suggested that this offer wis a farce as the receiver was in charge of the company's assets. Mr Gresson: That is quite incorrect. were carrying on business with the consent 01 the receiver, and Mr Blackwell had full power to hand over the car. Mr Hunter said perhaps counsel could prove that. plaintiff g&ve evidence on the line* of the statement of claim, bjj3 of his counsel s opening. e Plying to Mr Gre3son, plaintiff said that at the time when the exchange was naade he did not think that Blackwell was the owner of the Studebaker, He realised that he was dealing with Blackwell, who was acting on behalf of hi 9 principal, the Buick SsJes Company. He was aware that there was a- difference between dishonesty and carelessness. It was when ho learned that the •Quick Sales Company "had gone west" that he told Blackwell that he had not been going straight with him ; but it was not till witness had lost the action which Cunningham brought against, him, that he had suggested that Blackwell had been guilty of fraud towards Mm. Wni. J as. Cunningham gave evidence regarding the bailment of the Studebaker to HeaJey, and the negotiations in connexion with the Perry. He stated that a "writ waa first issued against Buick Sales, but was not gone on with, as the company was practically in liquidation at the time. To Mr Gresson: In September, 1922, he thought that trouble was coming in respect of tho Studebaker, tnd kopt copies of all letters, and took a mental note of dates. He fixed the date, September 80th, by the fact that he got into a new house on the 22nd, and it took him till the end of the month to get settled. Witness might not have stated, in the previous case, that HeaJey and Blackwell had gone to his house at Sumner in Soptember on the day he was absent in Ashburton.; his wife had jogged his memory on the point. Prior to t-Jie hearing of the previous case, in October last year, he had not had occasion to recall the conversation of September 30th of the previous year. He knew that Mr Blackwell answered the telephone on that date, as he had met Mr Blackwell once, and recognised his voice. To Mr Hunter: He was certain that the conversation over • tho telephone between himself and Mr Blackwell was before October 17th. He hadi not been in Ashburton In October. It might have been September 29th.

E. H. Healey, taxi-driver, Ashburton, gave evidence regarding the hiring of the Studebaker from Cunningham, and its exchange for a Perry car. At the time the exchange was effected nothing was said about wijo owned the SWtot>a,ker car. Witness told tuo salesman (Radcliffe) that he would get the receipt through Mr Kennedy, solicitor, Ashburton. Witness had said bo because he Jtnow the car was not his. After the exchange had beon rmule, ho saw Cunningham, who. said that he had not authorised him to make the exchange. They came to satisfactory arrangements. Cunningham wrote a letter to the Buick Sale 3 00., Ltd., informing them of that fact. On February sth he signed the chattels security for the Perjry car to Buick Sales, Ltd., and £3OO odd was received by it. He signed the hill of sale at Blackwell's request. Three or four months after he gave the bill of sale the car was seized. To Mr Grcsson: The bill of sale signed in counsel's office was in favour of Buick

, Sales Co., Ltd. The position was that the Buick Sales, Ltd., might bo liable to Cunningham, but they had no security over 'witness's car. The money was owed to Buick Sales, Ltd., but Blackwell was the manager. He knew that Page took the car- He considered ho was free to exchange the Studebaker for the Perry car, for he understood that he had Cunningham's authority. The whole thing would have been completed if he had signed the agreement over the Perry car. Joseph Herbert Kadcliffe, greengrocer, formerly a salesman in the Buick Sales, said he recollected Healey going £o the Buick Sales, Ltd., in 1922, and discussing the exchange of a Studebaker car for a. Perry car. After talking to him for some time, witness introduced him to Blackwell. When he introduced Healey to Blackwell he explained the proposition. No agreement was come to because witness had practically made the agreement. Blackwell just had to endorse it. Tr Mr Gresson: He effected the sale with Richardson. Leslie "Norman Flemming, security clerk J employed by the National Bank, said that I the Buick Sales, Ltd., was a customer. Two debentures wore given to the bank by lue company. The demand was made on April 27th, 1923, and he subsequently took charge of the plant and stock. •That closed the case for the plaintiff. Mr Gresson moved fdr a non-Buit on the grounds that there was no evidence of fraud, and that there was no evidence of any misrepresentation oither expressed or implied. Mr Hunter submitted that there was evidence of misrepresentation. * His Honour said he was not prepared to non-suit at that stage. • Mr Gresson, in opening the case for the defence, said it was very clear that Healey made his exchange of the car in perfect good faith, as he thought Cunningham had told him to do as he liked. Blackwell heard that there had been trouble about the Studebaker car, but received a, letter from Cunningham saying that he had agreed

to take a bill of sale over the Perry car instead of the Studebaker. • Later, Blackwell received another letter from Cunningham • stating that Healey had not signed the agreement. Hea'.ey had told the Ashburton agent of the Buick Sales, Ltd., that he had. fixed the document up, and naturally Blackwell thought ho had a right to deal with the Studebaker car. He was exceedingly sorry for the plaintiff, as he had bought a car, and now it was taken away. son had a course of action open to him, and that was to sue the Buick Sales, litd., but ho would get nothing out of it, because the oompany was practically insolvent. Because of this plaintiff had _po right to aue Blackwell, who was only a servant of the, company.

Walter Freeman Blackwell, defendant, said that the capital of the Buick Sales, Ltd., was £IO,OOO, and of that he held £lO. At the time the exchange was made and when the note o£ exchange was being made out for Healey, he asked Hea-ley if the Studebaker car was free from debt, and he had stated that it was, although he had not the receipts with him. Taking hia word that everything was al l right, witness .consented to the exchange. Witness did not get one penny profit out of the transaction. The car was exchanged for another in October, the person to whom it was given in exchange being the plaintiff. A bill of sale was taken over tho Perry car to safeguard the Buick Sales, Ltd., against any future action brought by Cunningham. William Page, manager of the Ashburton Buick Sales, Ltd., said that on August 24th, 1922, ho sent a letter to Blackwell. Witness had received instructions to get m touch with Healey and have the matter fixed up. He saw Healey, who stated that he would call on Kennedy and get everything fixiad. Later ho received further instructions from the Buick Sale 3 to get tho matter fixed up immediately. He met Healey coming out of Kennedy's office ono day shortly after, and Healey had said that he had fixed everything up with Kennedy. To Mr. Hunter: Healey said that he had fixed everything up. Witness served Healey with a writ about January 27th, on behalf of the Buick Sales, Ltd. Later witness seized the Perry car. The Court was then adjourned until 10.15 a.m. to-day. |

MAGISTERIAL. TUESDAY. (Before - i-r Wyvern Wilson, S.iL) DRUNKENNESS. Marv Jovce admitted beinsr found druuk, but she did not admit wilfully damaging u pla-is vase which adorned the interior of the taxi into which a constable had placed her after a struggle. On the charge of drunkenness she was convicted and fined 40s, in default seven days' imprisonment, but tile charge of wilful damage was dismissed, becaiise his "Worship held that she wa3 too druuk to know what she was doing. ALLEGED THEFT. Frederic!: Pratt, alias John Kelly, was charged with steaJiner, at Xhinedin, a wristlet watch, a gold band ring, an engagement ring, and two opal rings, the property of John Edward Downes. Hs was further charged with breaking the terms of his release on probation. On the application of the police, the accused wa3 remanded to appear on March 12th. REMANDED. Ewm John McLean was Teananded to iWetr on Ivlarch 7lh on two chaige3 of stealing- some harness, the property of the Weatpoit Coal Company. FIGHTING IN THE STREET. John Wakefield, a Maori, who pleaded notauilty, and Jamw

jruilty, were charged, with using behaviour in Tuam street, whereby a breach of the peace was occasioned. + r,.i. fu. It was stated by the police that th« accused men had fought outside -the Wellington Hotel in Tuam street shortly after closing time. , ' , . His Worship convicted and fined each «a and casta. TNTF,!N"AJJCE. ,

Isabel Magdaline Austin (Mr R. Twyn*ham), proceeded against her husband, Thomas William Austin (Mr R. H. Livingstone), for separation, guardianship, and maintenance orders, on the grounds of habitual inebriacy and failure to maintain. Complainant stated that her husband was nearly always intoxicated; ho had never been the same since his return from the war. She emphatically denied that she had ever been in the company of another man until midnight, instead of going to the Spiritualist Church. _ ■ Defendant, in evidence, said that his wife often used to go out at nighte; she used to tell him that ehe was attending the Spiritualist Church, but he became, suspicious, and followed her one night, and» discovered that she met and went out with a man, who afterwards became a "star" boarder. Witness had left home because his wife had told him that 6he did not want him,, and because his son had told him to get off the premises and had hit him in the eye. He admitted that he drank, but not to excess; whenever ha took home liquor his wife helped him to consume it.

The Magistrate said that complainant's evidence was quite unreliable. He believed the story of the defendant, who said that ho had spied on her when she had been out with another man, and who had been shut out of his home by his wife. The application for the separation and maintenance orders in respect of the wife were dismi6sod, and that for the maintenance of the elder son was alio dismissed. The application in respect of the younger son was adjourned for a fortnight, pending enquiries as to the possibility of the child being placed in a Presbyterian home.

IN OTHER PLACES. AN APPEAL CASE. (PEBSB ASSOCIATION" TZLEORiM.) DUNEDIN, March 4. Mt Justice Sim gave judgment in an appeal case against a decision of the Magistrate 'at Oamaru dismissing a charge against •Cornelius Goodson, Oamaru, of keeping "liquor for sale. Defendant 'purchased ninefeen bottles pi whisky at Georgetown, carrying them on a motor cycle to a suburb of Oamaru. When followed by a constable he went into a belt of trees where the constable confiscated the liquor.

The Judge did not agree with the Magistrate's finding that the whisky waa only in course of transit, stating that any person ■with whisky in his possession -which he proposed to sell •was keeping liquor for sale within the meaning' of the section. The appeal accordingly was allowed and the case remitted to the Magistrate to convict unless respondent satisfies the Court that the liquor was not liept for sale.