THE COURTS.

Press, Volume LX, Issue 18141, 2 August 1924, Page 8

THE COURTS.

SUPREME COURT. CIYII. SITTINGS. (Before their Honours Mr Justice Sim and Mr Justice Adams.) APPLICATION FUR X E T .V TRIAL-. Louis . Levmeky. Isaac Cooper, and. liar-r.-etc C<X)^r, of Toronto, Ontario, Canada, carrying on a business as the Cooper Cap Company, proceeded against ti.e X,uapoi \\ oollen Manufacturing Co. Lid., claiming that on Se-ptember 10th, 19.C, plaintiff company sold to defendant cor.ipany 1-400 dozens of bracks and on Qciobcr -!th, 357 dozens of braces. The goods arrived in New Zealand in December, lU2i>, being received and accepted by the de L-ndant company. All conditions were fulfilled by the plaintiff. It was claimed that the de.er.dani had accepted samples c: each line of srojds, and that any complains should have been made within 10 days of receipt of pods. No compls.nt was made until the latter part of January, 1921. Plaintiff asked lor judgment for £lBlB IPs lid under the first claim, £32-2 19s under the second claim, and .£l2 13s 7d being insurance and freight charges incurred by the plaintiff at I tile instance of the defendant. I The defence denied that it had ever' re- | ceivod and accepted goods from the oUintiff, ' and thiit it had ever received sample.} ot" j the go;ds. It claimed that it it were shewn (hit the defence had ordered the they ! should be equal to the samples, and ! should be in a- merchantable condition for the purpose of sale by defendant ccmj p.'iiy. None of the Police braces (No. 292) | was equal to the sample. The defendant had rejected them and given plaintiff notice to that effect. The defendant counter-claimed ; for £552 17s lid, being Casloras duty anl other charges which had to be paid by it in respect of th-> landing of the goods in New Zealand. The deferdalii also alleged that all the goods v.-ere worth 25 per cent, less thi.ii the prices ment.oned in the invoices, and if the sum of £iSlB 10s lid were recoverable by the plaintiff, the defendant counter-claimed for £1241 3s 5d on these gr unds. Tlio defendant als> countei-cla.imc:l for £lißl 4s Del oil the grounds that it had i incuried expenses and the goods had become unsaleable by 'he date of their arrival. The defendant counter-claimed for £loj7 7s, being the amount of the excess claimed by | the defendant beyond the sums claimed by the plaintiff in the action. The-verdict of the jury, which was a complicated one, awarded sums to b„th parties, tuo balance being iu favour of the Kaiapoi | Company by £SS9. The plaint.ffs were represented by Mr W. J. Sim, inst.ucted by Martin and Martin, 1 of Weliirgton. Mr J. H. Upham represented t.ie deier.dant company. Mr Sim said th-t there were four motions invo.ved. 'iliere was a motion judgment } for the plaintiff, a motion lor judgment for tiic defendant, a mot.oa ior a new trial iiied i by tho plaintiff, and & summons taken out by the to determine the true principle on which the coats should be settled ou the action. Mr Sim said that the defence was that the goods were not up to sample or not up to merchantable qual.ty. On all issues, the defendant succeeded at the first hearing before a jury. Mr Sim admitted that the judgment of the presiding Judge at the first hearing was correct, when based on the findings. of the jury. The plaintiffs claimed that the damages should not be 90 per cent., or 25 per cent, of the contract price, but should be the percentage based on the market price of the goods four months later, on the date of delivery. Mr Sim applied for a nonsuit on the counter-claim for want of evidence or else a new trial because the verdict was against the woight of evidence. He claimed, that, there had. • not . been in the case the .proper precision in ascertaining the market" Value of the goods at the date of delivery; ■ This latter point had been covered by. . some vague reference. to the slump. But there were other factors which should have been taken into consideration. ;Mr Upham claimed that, at the first sitting, the opJx>sing counsel had agreed upon the question- of damages on a basis of percentage. Air Justice Adams: But you are only asserting that. You must be able to prove it. . ■ Mr Upham: Then I think I would like to have the case postponed, so that I can get into touch with the counsel at the preceding trial, who nre at Wellington. They could let us have a memorandum as to ■what was agreed, and that would aettle the matter. - This arrangement was agreed to. Mr Justice Sim: Then . counsel: must understand this: If it is found that there was no agreement, then there will haVe to be & new trial .on the question of damages only. (Before his Honour,Mr Justice' Adams.) FAMILY PROTECTION • ACT. Reserved judgment was given, in the case Marion Waikir Wotherspoon and others v. Franc-s Wotherspoon and . others in the estate of Arch-bald Wotheiapoon, deceased, an- originating summons under the Family Protection Act for an order making adequate provision for the maintenance of each ot the plaintiffs - on the estate of ( 'the. testator, ' whj Miefl on May 12th; 192Th0 plaintiffs were three of the daughters of the testator. His Honour said that the testator was a iarmer, this gioss value of whose; estate at the time of • death was £26,650, which would be reduced by payments of debts • and costs of admin.stration to about £22,750. ' After reviewing the evidence submitted, his Honour, said that he. did not think an order should be made in respect of the plaintiff' Marion Wotherspoon, and of Catherine Frame, but in the case of Mary Watson, who' was in a different financial position, he ordered that in addition to the provision .made for her by the will she should be entitled during her life to be paid out of the estate an annuity of £SO "per annum by equal half-yearly instalments, commencing from the date oftestator's death. The real estate devised to the defendant Francis Wotherspoon wascharged with the incidence and burden of the order as to one equal half of the payments, and. the real estate devised to the defend nt, Bobert Wotherspoon, was charged s in'l&rly, either of these defendants might redeem Is*. lands .'irorn the charge by the purchase of an annuity in the name, and for the life, of. (Mary Watson. Costs were fixod 'at £2l and "the disbursements in relation to her affidavit, and the oosts of the defendant whap taxed by the Registrar would ba paid out of the estate. At the hearing Mr R. Twyneham appeared for the plaintiffs, Mr M. J. Gresßon for the trustees and Mr F. D. Sargent for Alex. Gilchrist, one cf the defendants. SPECIFIC PEFORMANCE. In the case of Ernest Albert Wilson v. T. Mcoec, an action by the purchaser for specific ot an agreement tor sale oi a freenola property, h»s Honour aiiid tnat tho agreement ior sa.e was imade orally, and on September . Bth (plaintitf signed au offer in writing, the defendant sighing an acceptance at the foot. The price agreed upon was £425, and tho terms seated were £»l) deposit to be paid on acceptance of the offer and £J7S with interest at 7 per cent, on Jjeceinber bth, ISW3. There was a stipulation that time was to bo tuo essence cf the contract and that the, defendant was . to have, the option of rescinding the contract and retaining the deposit if the conditi.-na of the contract were not lulfilled. Tho offer coutained the following incomplete sentence: —"He agree 3 to imp.ove the said property." It was.obvious that the word purchaser had been omitted by mistake and Mr Sleoman, who arranged tlio terms with the plaintiff explained in ettect that the -puichaser was to obtain un advance on mortgage of the property and in order to get us large an advance as possible was to paint, repair and do up the property. The purchaser was entitled to immediate possession and tho arrangement was that he shou.d undertake to do this, the defendant not being satisfied with the amount of the deposit. The word "improve" was inserted by the agent, as an equivalent of the real agreement. The work to be done was finished by December Sth at & coat of about. £i4o. Possession was given to plaintiff in accordance with the contract, but he failed to pay the balance of the purchase money on the date fixed owing to difficulty in arranging for the mortgage, and Mr Best, the agent who sold the property for defendant and who had been instructed by plaintiff to arrange for the required advance, saw defendant or spoke with him on December Bth, and asked for an extension of tune. Sleemsn said he told defendant the office would bo closed and that nothing could be done until after the holidays, defendant stating l that this would be a-1 right. His Honour found that this was substantially correct. On January 7th defendant wrote to Best giving him notice that the sale was cancelled and claiming the deposit and the rents of the prcpeity. Be6t found this letter under the of his of&ce on the Bth, and on the 10th he tendered £375 in cash to defendant's solicitor, who declined to receive it, and said he could not settle until he had seen the defendant, but he made no objection as to the amount. There was no doubt, his Honour, thikt tie plaintiff was then ready and willing to complete the purchase. On January 23rd defendant, through another firm of solicitors, confirmed by letter the notice of January 7th and intimated that the deposit had been for* ieited. Defendant having waived the exact performance . of the contract as to time and consented to an extension oould not rescind the contract unless and until default had been made on that date. xxis Honour was of the opinion that the notice of January 7th waa ai ao effect, and as the

plaintiff wae ready and willing to complete on the extended d&te the defendant was wrong in roiusirjj. Tho letter ot January 23rd purported to be * confirmation only and nothing had happened in tho meantime to justify rescission. Counsel for defendant contended that the plaintiff was bound to tender the fell purchase money and interest and a transfer before taking action. In the circumstances, however, that would have been futiio and tender w-s waived. Plaintiff was therefore entitled to the decree asked for r.nd to his costs on tho lowest ecaie with disbursements and witnesses' expenses to be fixed by the Registrar. Mr F. T), Sargent for 'he n'n'ntiff and Mr R. A. Cuthbert for ihe defendant. APPEAL Z'VTCFrr.V. His Honour envc h's r"°err-d judgment in the caiv between Ar'nnr 0. Wood ley. po'iee constable, and A ,f red .Tphn 1,-wrence, defendant, I'censee of Storev's Ho''-], r.n arp-a\ on in"* from a dcternrnation nf K. I). Mns'ev, s .ir., dism ; <=s-'nsr t-h<-<>.■» ini rrr:"'.;-ni chartrnT the respondent with 0) ke<-pinT his ] : c-nser-l rcrpmisrs open: iT, exnosir.q- liovor for sale in such prercrses; i'?\ s.M'inEr I'ciunr on a ■Sundav. contrary to R«vfion 110 of the L-een-sinir Act, 1908. The tbrre informations were all in respect of the wime facts, the aprxvl being j-ei>nrfe<l : n "The Press" of July 2"? <5. The Magistrate d'smisscl the informa'-'ons on the "round that in the the respondent was nr.' for the unauthorised nets of his barmiC: _ • • "As to the information f'r selling liqnor ditriner the time wh«n the prom'ses are. <*iro C tod to bo ctoped," said his Honour, "the Magistrate appcei.'-s to have ac'ed urK-n a mistaken view of the law. Section 190 is one of a n"mber of sections in the Licert-' =ine Act which imposes an absolute responsibility upon the licensee. K the offeree, is committed bv a sox*\*ant of th< i boenseo; and is within the (jenern! s'-ooe of his employment, the licensee is responsible, and e.pnnot cecane bv proving that the c-enera! authoritv was limited liv priv-ite -:ns'ruotinns, however d"luite and thoie instructions may have The r.iKS'ion whether the art of the 9.-'V2»it i« wi;h-n the prone of his emp'ovmenl is oetormined by the nature of that employment. Pioceed-n?, bis nour s-'<i the- oncstion ill the case was not, therefore, as SUE"bv conn«oi for fn n rf^^ndonf., • whether there wis a nrUna fnrie ease w'rch mi-ht have bv .-v : den.;e ot rp^rss iricirnr-tnviiß forbidcl n?r in-" sa. o, l)t:t whether the licence e-'-uk! (venpo • from v'earioni for acts done bv his barman vim-!: wor- withiii the peneril --,-.ne of his emnhn-mcnt; air' that -wps tlie or'iv nuesfion in the case. The extent and lim'tatiorir! of the au'h-ritv of a b-rman wtrro to be detef-ined recording to the £?eneral 11 The' nn-v-ai was nilewed, with oosts £8 Ss and dis"-<'.rr-e>nrnis. and .the case, wes remitted to iiie Magistrate to convict of Belling Honor during prohibited hou-fl. unless he mis of the oninion upon the fact* asdosed in the- case that it. was a proper case for the excrc'se of the discretion given by Section 92 (U 'a). Mr A. T. Donnelly appeared for appellant and Mr' M. J\ Gresson for respondent. IN BANKRUPTCY. A summons to adjudicate Charles Hopwood Capes a bankrupt was stnich out, the application -of Mr J. R. Cumngham. IN CHAMBERS. His Honour Mr Justice Adams dismissed a motion to £-et aside or vaiy an order by the Registrar granting leave to exercise P°w of sale under the Mortgages Extension Act in regard to an agreement of sale and purchase between Thomas Eve. of Mount Somers, labourer, and of Asbburton, contractor, and Manila Fenna, his wife.

MAGISTERIAL. FRIDAY. (Before Mr Wyvern S.M.) DRUNKENNESS. • A first offender was convicted and fined 10s in default 48 hours' imprisonment. IDLE AND DISORDERLY. • Emily Russell, 72 years of age pleaded guilty to a charge that she was deemed, to be an idle and disorderly, .person, in that she had insufficient lawful visible means ot SU Ch?e?-Detective ,T. Gibson said that the woman had-been sleeping • on the river banks and in outhouses. She wandered a good deal, but she seemed to like the Addington Home, where she had once been committed. Accused was oonvicted and sentenced to three months' imprisonment in the Adding-, ton Home. • BY-LAW BREACHES. For cycling at night light the following wcie each convicted and fined 20s and' cost«:~Albeit Anderson, - Cecil Andrewe, Jack Cookson, Henry H. Hxnna, James H. Hudson, Cecil H. Manning,' Gordon Woodham ond Herbert twithout James Young, Andrew Hughes, and John Burns were each convicted -and' fined 10s and costs for a similar offence. yVUiam Robert Ross and Jbeshe Wain were each convicted and fined 53 and oosts for having Cycled on * footpath. Owen McGough waa convicted and fined 30s and costs for having driven a. horse and cart at night without lights. ; 1 Walter L. G. Ironside was convicted and fined 10s and costs for having driven a motpr-cycle at night without o light. Charles Henry Baillie (Mr "A. C. Brassington) was convicted and fined 5s and costs for having alighted from a tram-car while it was in motion. reckless Driving. Alfred Bolstad,; who did not appear, was charged with having driven a motor-car in a reckle33 manner in Huxley street. Alter hearing, the eviuence of W. Kilday, a. carrier, and a police constable, the Magistrate said that the circumstances were bad —they were chocking. It was evident that the uian waa drunk while he waa in charge oi the car. From the evidence it was also evident that Bolstad had driven recklessly and had collided with a truck which belonged .to Kilday, and. which was, standing on the correct side of the rond outside the witness's house. The case waa a bad one, and if he had the power to cancel defendant's license he would most certainly do it, because in his opinion the man wa<s not fit to drive a car. Bolstad was convicted and fined £lO and COSt 3. SEQUEL TO COLLISION. Margaret. Brennan (Mr F. W. Johnston) pleaded not guilty to a charge of having driven a motor-car in a manner dangerous to the public. . . The evidence showed that the defandant had collided with, a horse-drawn express van at about twilight on the Riccarton road. Witnesses for the police estimated the speed of defendant's car at approximately 30 miles per hour. The defence was based on submissions that the van had no rear lighted lamp attached j to it, and that it was on that. account that she had failed to observe the van.' It was J also submitted defendant's! speed did j not exceed 24 mi.as an hour, that she had not driven in a dangerous manner, and that she had kept a pro-er look-out The Magistrate said that, taking all the circumstances into cons deration, the defendant had driven in a dangerous manner. In .his opinion she had fai'ed to keep a p oper iook-out. It was said that there tad been I no tail light attached to the van but that ! might have been extinguished when the car 1 struck the vehicle. Deiendant was convicted and .ordered to pay costs amounting to £3 los. LICE-INFECTED SHEEP. For having exposed lice-infected sheep for sale in the Addington yapis. Donald Ross, George Phillip, and David Wilson were each convicted and fined 20s and costs. (Before Mr H. Y. Widdowson, S.M.) A DRESS BILL. Katherine Gay and Evelyn Lunden, dress- | maker 3, of Christchurch, trading together as "Celeste," claimed from George Zealand Pocock the sum of £8 18s for goods sup- j plied to his wife. The statement of claim | stated the following goods were supplied to Mrs Pocock on January 17th, 192 i: Woollen costume, £2 2s; sponge cloth frock, £1 Is; for making. a dress, £"2 10s; trimmin", etc., 10s; mat.-rial and general, lSe. On January 27th, for making a <f.ess, £1 10s- balance on account, rendered in August,' 1923, 10s. Mr Twyneham appeared for The piaintiffs and Mr Tracy appeared for the defendGay said that Mr and Mrs Pocock were living together at Sumner when she posted the account to the defendant. She admitted that she had heard Pocock had repudiated his wife's debts. _ • _ Pocock said that he had fie tied the August account, but against his instructions j Ms = wife had run up another one. He had j treated her generously, allowing her £25 j. - month, £6 of which was for rent. He. did slot> his wife's credit, and. now .the publicity in 'the divorce case had affect-d his financial stability. On January Bth he took a house for his wife and children at Stunner, bnt he did not .live there himself. He told his wife then that no more debts were to be contracted,- because _he wished to get clear of his liabilities. He w then allowing his wife £6 a month for rent and £l2 for food and clothes. In add jion hj». paid for the keep of his children In April be advertised that he wou.d not be responsible for any debts contracted by Ins wife He was not aware that his wife dealt with "Ce'este" until he paid fhe August acco nt for £lO. , , ~ Elizabeth Pocock eaid that she was residing at Sunxcer when ths debt wag con-

tracted. Shi often dealt with "Celeste" alii her husband knew that she had bought the goods at that shop. . Wh'en the account was received, she referred it o her husband, who said that it could stand over. The Magistrate sa d that in ais opin on the. plaintiff had purchpsed only ve-y nec- .s----sary things: and < that when they were purchased the people we a,, in .the eyes cf the. pub-ic, Btill man and wife. Judgment was given for .the plaintiffs for the full amount claimed with costs. -DEFENCE CASES. For failing to. attend -military drill, tho following were each convicted and fined with costs:—Sidney Kenneth Barnett 20a; Roy Bradley, 10s; Mofitague Charles Cham"bers, 103; ILeo Patrick Coff ; y, ss; Stanley John French, Es; James Inkst r. 7s cos s; Valentine Patrick McTigue, 20s; Bertie Mann, 10s. ' • . , Char'es Alexander TuUock was convicted and fined 20s and costs for having failed to notify his change of address. ALLEGED USE OF INSTRUMENT. Gertrude" Grace Bell, aged 29 years Mr A; H. Cavell) was charged that, on June 14th, at St. Albaiis, she unlawfully used an instritment on a young woman. , Chief-Detective Gibson said Le intended to go on with the' doctor a evidence and then to tofke "the girl's" evidence at tlio hospital. . , .. Mr Cavell objected, saying that it was unfair for the Chief-Detect ve to take the girl's evidence at such short notice. . Dr E B liindsav, surgeon at-the Chr stchurch Hospital, eiiid the girl was under his care. He first saw her on June 29th. when she was very ill indeed, and had_a the. signs of septic infection. W tne.si made a general examination- of the patient, and then carried out treatment whioh was adopted in cases wi.h a s.milar histo y. Subsequently ' helmade a local examination and found evidence that she had recently te?n pregnant. He concluded that the cause or illness "had originated from a local infection. A certain result could be prooured by use of the rubber instrument produced. The three ounce bottle of laudanum Produced would not be prescribed for a Mid. ihe girl's condition was the-same as last weefc, and witness did not think she would suffer if' her evidence'was taken at-the hospital, ao long as it was hot too long. The case was then adjourned until 9.30 a.m. to-day, when tho girl's evidence will be taken.

IN OTHER PLACES. THEFT PROM EMPLOYER. (press association telegram.) WELLINGTON, August 1. When a draper's assistant, Wilfred A bevt Wootton, apr>eaiod in the M .gistrate's Court, before Mr JS. Page, S.M.. for.senten e on a clrarge of theft of material from the firm of James Smith, Ltd., the Probation Oificer said that he could not'recommend probation. The Magistrate, in sentencing Wootton to two months' imprisonto';nt, eaid that pitblio interest must be regarded. Acc s d had been in a posit.on of tni3t. and- had iomm.t ed a series cf thefts, from'his emp oyer. "Thi3 class of offence is becoming too common."