LAW REPORTS.

Dominion, Volume 1, Issue 17, 15 October 1907, Page 3

LAW REPORTS.

APPEAL COURT.

" • Their Honours tho Cliiof Justice (Sir Robert Stout) and Justices Williams, Donniston and Button took their seats at 10.30 a.m. yesterday. CLAIM FOR COMMISSION. "Argument .was heard in the caso between Guinness and Lo Cren, Ltd., auctioneers, etc., Timaru (appollants), and William Qumn, farmer, ,of Mukikihi (respondent). This was an appeal, ou law and-facts, from tho judgment of Mr. Justice Chapman, who, on August 26, 1907,-allowed the appeal from tho decision of Mr. Jackson Keddell, S.M., which was in-favour- of \ appollants (tho plaintiffs) in an action .for £95 16s. (boing commission on the sale of a farm) and costs against, tho respondent (who was tho defendant).' . ' .. ... In the courso of .the judgment now appealed from, Mr. Justice Chapman said that it had been affirmed on behalf of Guinness and Lq Cren, Ltd., that Quinn's farm was on their books'.for. several years. In June, 1906, Humo (ono of tho coriipany's officers) met Quinn when driving a Mr. Wright along the'Makikihi road, : and : explained to him that'Wright wanted a farm.. At Quinh's suggestion, Wright looked at-his property, but refused to givo tho price put upon it. Afterwards the company tried to sell to one Watson, but'-were unsuccessful. On August 31 the company recommended the property to a Mr. Flyiiiij who thought the prico too high, but at Hume's suggestion offered £22 per acre for it. Quinn replied that he would not sell under £25 per aero. Up to this Eoint it was clear, His Honour said, that the ict of the farm being on tho books of the company (whatever that might _ mean) amounted to very little, and that Quinn was nob'eager to soil. Later; Flynn signed an -agresment to buy at £25. It was ovident that Hume had no authority from Quinn to ■ mako this agrcemont, which contained several conditions .that could not be' imposed on -. the vendor • without ■ his authority oven if he -had - given a. general authority to make an agreement. Then, again, it was clear'no sale had been effected through ■ Humo undor ;an expressi or implied agreement-to pay for his labours. On September 15: Quinn told Hume that.-he had .changed his mind and would not sign tie agreement, which was, theroforo, left The following Sunday, Humo and. Flynn wont . out. to Quinn's, place. When tho' question of com■missiori cropped up, Quinn pointed out that h'o/ did, not want, to sell the ; farm 'at all. Subsequently, howover, a now agreement was drawn up, and Quinn decided to go on with tho matter. The finding of the Magistrate was based entirely, on the commission having been earned on. September 12; when the contingent agreemont was made. His Honour said that that,view could not be sustained. There;.was,7ho thought, very little, evidence of■, prior employment, and if there had been distinct'evidence of. such omployiriont some months earlier, it. would not have justified Hume in making an agreoment after such a lapse' •of i-.timo'. His Honour said ho was quite satisfied from all tho circumstances •that nothing had been, dono'ior Quinn,,by tho .Company •to entitle. It to commission .prior -to tho visit to"tho farm' on Sunday. It:was, ho thought,.iriofo than'.p.vobablo that, up 1 to that point, ; Hunie acted for, Flynn only. -Then the question arose .as to whether the,commission was earned.on tho Sunday. IL there had been •'. distinct ovidoncc of an agreoment to., pay commission, for what was done,, then ho might have been' ablo_ to, say '.that' the ' judgriient' might.bq/ sustained in respect of the'isalo .irrespective' of' thofd'atd. But the judgment was not really in respect of. the transaction of, that date,' and it seemed,: to: His Honour that, if tho Magis.conclusion' could bq supported, it could be supported' irrespective of what was done I .on that date. , Tho evidence' sho\ycd that, from the first,' Quinn: stated; that" ho did not; intend to pay commission, and tho oiius was on the company to show that ho agreed to do so. Tho' case could not be treated as' one in which' the work done spoke for .itself, or,; as the Magistrato had put it, as one in which goods wero sold,and takon away Under art implied' promise to pay, for thcrii." Hume performed tho work, l as was often tlio case," under no actual'agreement, that-.it', should'.be paid for, but in, the.hbnp that'it: would'result in' a commission; ,Tho appeal would be'allowed: ■-.'■ • .. " ' Mr K.C.-Xwith him. Mr. Hamilton,., of. Waimate); appeared for the. appel-lant.s',-7arid Mr. Kinnerney ' for, the respon-, dont. "\' •;'■". • " ,' , ..

COURT.

'■■■<J:■■ '} ' (Bofore Mr. Riddell; S.M.O .'.'■'■■' /■-; "/■'■'" '; '-POLICE. CASES..'.- , ; ""; .'■. At the Magistrate's Court yesterday morning a man named Frank Strango 'was convicted'and fined'ss., in default twenty-four hours'- imprisonment,' for drunkenness. Five first-offending, inebriates wore also dealt with. One was convicted and discharged; quo was fined. 55., in. default twenty-four hours', imprisonment; two mothers : wore' fined 10s.; in dbfault forty-eight hours' imprisonment; 'aiid ono was remanded until October 21. ':< 'A young-man named David Brogmus, ployed- until, recently as .a roustabout in the' kitchen of tho'Metropolitan Hotel, appeared on ; a of thoft'of a coat, a waistcoat,, and a< hat, valued at -£2-:l2s 6d, from the hotel.- A plea of not guilty 'was entered. His* Worship after hearing the 'evidence remarked that, as far as the coat and waistcoat mentioned in the charge wero concerned, ho did not; think "thero was sufficipnt evidence against accused. As to tno theft of a' liat. there was'->'sufficient Accused would bo convicted and fined 205., and costs 6s:, in dofault.seven days' imprisonment. An order was made that the hat should be returned to its owner. ■' i-Y' SCHOOLMASTER AND HIS WIFE. CHARGE OF DESERTION. ,'... ' Thomas Brownleo, an ox-schoolmaster, appeared on .a charge of wife desertion.' Mr. uuckioappeared'for the prosecution and'Mi-. Ulair for the defence. 'Mrs. Brownleo stated that after accused gave up school, teaching ho wont into business with witness in a general store at Aramoho, but they were unable to make the business pay, and eventually: failed. Accused refused'to. pay anything towards liquidating the dobts incurred. Eventually lie was reappointed under the Education Board which had employed him previously, and "he qualified for a pension or £1 weekly. Ho also received £5(0 from tho Government In- ! suranco Department under a matured endowment policy, and was besides said to have property in Ckristchurch; Since January witness had received only £2, 7s. 6d. from accused. In; March, Brownleo visited his son at Gisborno,'and boforo ho left Wellington sho asked him for some monoy as she only had 10s. at tho time. He 'offered her 5s; 1 He sent hor 7s. 6s. and £1 from Gishome ■ and wrote stating that ho was leaving, for Sydney, • as : tne doctor had ordered him a sea voyage. Accused wrote several letters from Sydney in ono of which he stated'that-he did not■ intend returning to : the colony. If he spent all his money ho-said ho might return. Ho was arrested in/Sydnoy and brought back to New Zealand. To Mr. Blair: Accused authorised her. in writing to sell the furniture of their house. lt.:Was.not her fault that hor husband had left her. Sho told him to go ,onco when jio iras. insulting hor. She was not prepared to livo with him unless ho signed a deed giving her an interest in his property, and setting out that it should eventually go to their two .children. Witness had a ono-thirtooiith interest in her father's property, but did not know what it was worth. Sho had received about £3 out of the property • since she.married accused four years ago. - Mr. Blair stated that Brownleo went for a trip to Syuncy and wroto bis wife by every mail. Ho told hor when ho was going and kept her informed of his doings. Tho wifo had an interest in a property worth over £250, and in addition hat! £25 worth of furniture, and she admitted that Brownlee had given her authority to sell it.

Brownlco would bo sisty-nino years of ago next December. Counsel claimed Unit when money was asked for it was given, and tSroivulce had no idea his wife was destitute Brownlco was now negotiating for a farm-out of his insurances money and was prepared to take his wife and children on to the farm. Thomas Brownlco naid his wifo entered into business as a storekeeper whilst ho was away teaching, but contracted debts which led to bankruptcy, his name being associated with hers. Subsequent happenings woro traversed at length, witness remarking by the way that his 'wife was still welcome to half of anything ho possessed. Witness corroborated • the statements mado by his solicitor. His Worship said there were tliroo' informations—unlawful desertion, maintenance of his wife, and maintenance of two •children. The case was one ho thought would have been more satisfactorily settled out of Court. Accused during the time ho had been away had not supplied his wife with as much money as ho could or should have done. His AVorship considered tho charge of desertion prov.ed. Defendant must be convicted on tho charge, but, seeing that there was a probability of his doing better in the future, he would bo ordered to como up for sentence when called upon. As regards the second charge, ho considered defendant -was in a proper position to contribute towards, tho support,of.his wife and children, and should be compelled to do so. An order would bo made that defendant should contribute 15s. per week towards tho support, of. His wife, also ss. per week towards the support of .his two children. He was also ordered to enter into a bond for £100 or one. surety of £100 for compliance with -the orders. - Tho expenses of bringing accused back from Sydney were ordered to be paid out' of tho funds in Court. . ' . .; •AMIONITIES ON THE ARAWA. '. A'BRAWL ABOUT "BLACKPAN." ' . (Before Dr.! A; McArthur, S.M.). A Dutch cook and a Cockney fireman from the Arawa stepped forward with grievances which kept tho Court occupied' and interested for about half-an-hour. ■'. Tho cook, Peter Alexander Violaars, had evidently encountered trouble. 1 His head was bound up in sticking-plastor, and he looked pained and weary. The causo.of his sadness was Thomas Parry, the Cockney fireman; whom he charged, with assault. But for "blackpan," is scorned,' all would have gono as merrily as a marriago bell. ' Mr. Al. Myers, for prosecutor, explained what "blackpan" wns. All tho delicacies that were left oyer from the first and second saloon .were hashed together, and- served out to tho firemen as a perquisite. Parry smarted under a sense of grievance, because ho considered ho had not received a fair sharo of "blackpan." Consequently he promised to "do. things" to tho cook on their,'arrival in Wellington,- and, according- to tho evidence lie carried out his promise. -...'..' "I was going dpwn, to bed, when he stopped mo and knocked my head about so that the doctor had to attend mo," said the prosecuting cook, "ho called mo "a flatfooted, Dutch — , and then knocked mo down." Defendant protested his innocence with indignation. Also he called a couple! of brother firemen to testify oil his behalf, but the Magistrate expressed himself as quite convinced that tho assault had boon committed, and imposed a fine of, 20s. and costs, with seven days' imprisonment as an alternative ' • ' ALLEGED ADULTERATION OF. MILK, '•. (Before Mr. M'Arthur, S.M.) ' Tho case of Honry Bodley was before the ■ Court again yesterday afternoon. Defendant was charged with having offered for sale milk containing formalin, ana with'having had in his possession 'milk containing- formalin. Mr. Myers appeared for the prosecution, and Mr. Grey for dofondant.- ■ -'. . Evidence for the defence was taken.''' ' Thomas Rao, farmer, Lower Hutt, stated that he had supplied defendant with,.rail!' for over two years, morning and evening, and ho knew nothing about formalin or any other preservatives. , '.'.' . ' Walter Percy Bower,' employed by defendant to deliver milk, stated that ho collected the cans from tho station, and deposited them, at various places for Mr. Bodley to pick 'up. On September 12 ho 'left: a can, which was marked T. liae, at tlio corner of Murphy ! Street. No particular can ' was 'chosen to leavo there; tho milk might have como from Mr. Bodley's house. ■ Defendant went into the witness-box, and gave evidence on his own behalf. After describing" the mariner in which he purchased and- delivered his milk, witness stated that he had : never put formalin in his .milk, and had never used it at all. He bought a shilling's worth of formalin, about, eight or ten years ago, : and had hau noho sinco. Soino years ago he was prosecuted for tho adulteration, of milk, but hi used the boracic acid deliberately, as ho considered ho was ontitled to do so. '•_''• Gross-examined by Mr. Myers: He always kept boracic acid about his premises. Ho bought it in quantities of 141b. at a time. Ho:used it for various purposes. 1 ; Ho had used preservatives, but could not remember the last occasion on which he did so.".'Ho had.only useel boracic acid in connection with separating, and the skimmed milk was always thrown away afterwards. ■'■'.- Gprdoii Gieson stated that he went to tho railway station and tooK twelve samples of milk froni. Mr. Bodley's to .Mr. Wilton chemist, for analysis. Witness made tho re-cognised-tests in ten cases; but' found no trpce of formalin. 1 Frederick Castle, chomist, and Miss Bessie Couch gave evidence concerning details. :A. ' Hastwick, chemist, stated that he .analysed tho twelve' bottles' reform! to byGieson, and : found 'no trace of formalin. After about. nine hours, he found' minute traces of formalin in tho sample submitted by the Health Department. ! ; This concluded the evidence. ..'.-. The Magistrate said'ho would, if possible, givo judgment that, day'week.