THAT DOG AGAIN.

Clutha Leader, Volume XXXVIII, Issue 21, 15 September 1911, Page 5

THAT DOG AGAIN.

At the sitting of the Magistrate's Court at Balclutha, on Wednesday, John Rendall, Te Houku, claimed froni Ihos. Carruthers, Middlemnrch, £i, value of a dog. The first of this series of dog dispute cases was heard on July 12th, when David Morgan sued Thos. Carruthers for £4 5/, price of the dog. Carruthers authorised Morgan to buy a dog for him, which he did, paying Rendall £4 for it. The Magistrate upheld the contention of counsel lor the defence that plaintiff had no right to pay for the dog, thus converting himself into a principal, and non-suit-ed Morgan with jiM 1/ costs, to defendant. On August J(i Morgan v. Carruthers again came before MiBartholomew. Plaintiff's claim this time was that he had done what he had been instructed as agent to do, and he sued for the £1 paid «>y him/ on behalf of Carruthers for the dog. The Magistrate held that when a man acts as ugent he is not authorised to pay the price of the article, and gave judgment for defendant, with costs £1 1/-. Mr ]). Stewart, who appeared for the plaintiff, outlined the case for the plaintiff. He said that the only course by which justice could be done, was tor the present plaintiff (Rehdailj to refund the money paid by Morgan, back to him and sue Carruthers for the amount. • '

Mr IV. Allan (Mosgici) who appeared for the defendant asked that all witnesses be ordered out of court. John.Kendall, plaintiff, said he had been the? owner of the dog concerned in this ease. Received £ i from Morgan for the dog. After last court day witness refunded the XI to Morgan and now sued f'urruthers for the c'.og. The dog was. never sent buck to him.

To Mr Allen : The dog was not on Morgan's place before it was sent to Carruthers. After It had been bought he hoard that it was for Carruthers. This was the first time he had made a claim, on Carruthers for the dog. He thought he was doing right in refunding the money to Morgan

Mr Allen : Supposing you lose this case to-day, are you to get this £-1 back from Morgan '!

Witness: Not that I know. 1 have no guarantee. It is to see if there is any justice in the thing (referring to the reason for tire present ease.) By Mr Stewart : Took the dog from his own place to the station and sent, it to Carruthers. Morgan is an honest man.

David Morgan after giving evidence which is already known by previous i court reports, said that after last court day .Kendall gave him the .CI back, saying he would not see him lose it. ' Honestly believed that the dog was well worth £l. By Mr, Allen : Tried to buy the dog back from Kendall lor £:i. when buying it for Carruthers. but Kendall said he would sooner drown it than take .£?, for it. Was notified by Carrulher-= that the dog would be; sent, buck to Balclutha. "Uunder witness' instructions a summons had been issued to Carruthers for a dog sold and delivered by witness. "I will take my dying oath'," said witness, "that no arrangement had been made that Kendall was to get thi' £1 back if the efisc was lost." , , , Mr Allan asked for judgment for the defendant. He submitted that, *is regarded the facts the position was, as stated bv Mr Stewart, a sale from Kendall to Morgan, and from Morgan to Carruthers, 'There was a case in which it had been pleaded that Morgan had sold the dog to Carruthers. I lie onlv thing that could be said was that it was a contract made by an agent on behalf of an unnamed principal He contended that the. only person liable was Morgan. The .agent had paid the amount ot the contract sum, and such apayment was general; lv recognised as a discharge from contract It would be. monstrous it the liability could be revived by a refund 'o the money. Kendall had stood by for months, and had assisted Morgan n suing on ael aim entuely inconsistent with this, and how could it be iaid that'he had .treated the principal as liable to him. He referred to cases on the law of estoppel. His Worship said that Morgan was in the same position with regard to the subject matter of the action. Mr Stewart, said, that Kendall was no t concerned with the dispute between Morgan ft nd Carruthers at all. Morgan had paid the money under a misapprehension, that he was to -buy the dog and pay for it for Carruther. This wis borne out by the correspondence. The case was brought on \n justice to Morgan, whose conduct had been perfectly' correct, ( amitheiH had resisted payment on purely technical grounds. , Mr Allan said ■ the dog had been since sold, and Carruthers could not get possession of the dog it he wanted ' His Worship, in giving decision, said that the facts in this case, were quite plain, although somewhat complicated in the other cases. He did not attach much weight to the point that Morgan bought the dog off Kendall and sold i(. to Carruthers. Kendall at the time he sold the |dog twas aware .that it was not for Morgan, but for somebody/ else. At the same time Morgan paid Kendall £4 purchase price, and never gave the question of liability a thought. T.t was clearly shown that Rendall never intended to hold Morgan responsible, and he assumed that all Morgan had to do was to pay the money and get a refund from Carruthers'. Kendall, by refunding the money to Morgan when he saw he was out of pocket, showed that ho never held Morgan as personally liable. The position was that Morgan had paid the purchase money by mistaking the purport of the correspondence from Carruthers. There was nothing ...to prevent Kendall recovering from Carruthers. The law of estoppel did not apply case at all,' and he held that* plaintiff was entitled to the amount claimed (£4), .with coats for plaintiff (witnesses' expenses £l, court 8/-, solicitoye fee 561 6/) *3 14/-,