LAW REPORTS.

Dominion, Volume 1, Issue 70, 16 December 1907, Page 9

LAW REPORTS.

SUPREME COURT,

CIVIL SITTINGS,

THE EXHIBITION CASE. CLAIM FOR £4500 DAMAGES. NON-SUIT POINTS RAISED. EVIDENCE FOR THE DEFENCE. The CiviJ Sittings wore resumed on Sntiiiclay morning, His Honour Mr. Justice Button talcing his seat at 9 o'clock. Tiic hearing of the action between George [Scott (of Christchurcli) and His Majesty the liing was continued. The statement of claim sot forth that plaintiff, who was a fruiterer and confectioner, carrying on business at Christehurch under the style of "The Atlas Biscuit and Confectionery Company," and also under the stylo of "The Exhibition Fruit and Confectionery Company," was wrongfully deprived of a space at the Exhibition; that tho goods contained in his exhibit and his stock wero wrongfully seized and retained; and that an agreement that ho should have the sole right to sell confectionery and fruit at and during the Exhibition was violated. Plaintiff therefore claimed in all £4000 as damages. The statement of defence set forth that if the Commissioners granted to tho petitioner the space in question, such grant was not a contract entered into by or under tho lawful authority' (expressed or implied) of. tho Governor within Sub-section 1 of Section 37 of tho Crown Suits Act, 1881, and no claim'or demand in respect of the grievances alleged could bo made upon or against His Majesty under tho said Act. . If tho grant was a contract within tho provisions of the Act roforrod to, tho acts of the Commissioners; in granting similar rights and privileges to others, in taking possession of and rotaiuing petitioner's goods wore wrongful acts done and committed in respect of which there was no cause of action. _ Tho agreement was not made in conformity with tho rules and regulations, and thoroforo was of no binding force or effect. Also, tho wrongs alloged wero not wrongs or damagos independent of contract done, or suffered by or under any authority mentioned in Sub-sec-tion ]. of Section 37 of the Crown Suits Act, in connection with any public work as defined in Sub-section 3 thereof. Under and by virtue of the Now Zealand International Exhibition Empowering Aot, 1905, and of tho rules and regulations made thereunder, and particularly of Regulation No. 13, tho right of action (if any) of tho potitionor in rospect of tho matters mentioned in tho petition was against tho Commissioners and not properly tho subject of. a petition under tho Crown Suits Act, 1881. Mr. Skcrrett, K.C. (with him Mr. T. G. itussojl, of Christchurch) appeared for the plaintiff, and iir. G. Harper, of Christchurch (with him Mr. J. A. Cassidy, of Christohurch), for tho King. The names of tho jurors .follow: —W. Berry (foreman), W. H. Jones, Ernest Baird, Peter 11. Walters, W. W. Mannill, Thomas Hrookor, James' Arcns, Hugh Slado, John Turner, John Bowers, W. M'lntosh, and W. Sloinncr. Fnrthor evidence on bohalf of the plaintiff Was given.. George Adams, a member of plaintiff's staff, gavo ■ cvidonoo relating to the closing up of tho stalls by the Exhibition Authorities. His evidence was similar in effect to that given by Charles W. Harris tho previous day. Konald S. Badger, advertising agent, Chrietchurch, stated that tho privilege of exhibiting goods at the Exhibition was regarded as a valuable moans of advertising. Several manufacturers did much loss newspaper advortiuing whilst they were exhibiting, at the Exhibition. ' ■' Counsel: What, in your opinion, was tho commercial valuo of the right acquired by plaintiff to exhibit; during the whole period of the Exhibition, his goods at the particular stall allotted 'to him. Mr. objected to this question on tho ground that it savoured of special damages. Mr. Skcrrett. contended that tlio question must be allowed. Plaintiff had boon deprived of a valuable means of advertising, and tho jury would have to put a valuo on that loss. His Honour: The general answer to tho question will bo evidence. , Witness: Plaintiff's was a young business. Therefore. I think tho valuo of the rightwas 'not less than £1500. : • ... Cross-examined, witness stated that plaintiff, had.not, as far. as lie knew, advertised his goods previously. Ho always looked upon tho stall as tho Atlas Company's stall. As far bb he knew, tho-goods in tho stall bore tho Atjas brand. There was a lot of newspaper comment on tho fact that tho stall had been closed up. Scott had not to his knowledge advertised his goods since the Exhibition closed. . . . Chas. Holmo Nightingale, accountant in the employ of Scott Brothers, Limited, deposed that plaintiff made a net profit of £290 during tho seven and a half weeks he was allowed to keep' open. Plaintiff's estimate of tho profits he would have made if tho stall had not been closed was a reasonable one. The biscuits sold by plaintiff at the Exhibition were manufactured by the Phoenix Company, Dunedin: the confectionory was manufactured at plaintiff's factory. His Honour: That is one way of advertising other people's goods. Continuing, witness stated that tho valuo of tho goods placed in the stall for sale purposes was £553. Fruit and biscuits represonted £334, and confectionery £21,9. Ho would not be surprised 'to learn that eighteen passes wore issued to plaintiff for his attendants. This closed the case for the plaintiff. Mr. Harper pointed out that thoro woro a number of questions of law to be argued. His Honour: 1 can see lots of them. Mr. Harpor: Perhaps it would bo bettor to discuss them at a later stage. ' Mr. Skerrett:' Mr. Harper should stato his 'non-suit points now. Mr. Harper: Tho grounds upon which I hold that a non-suit should be granted aro as follow:—-(1) That no grant or liconso is disclosed on the face of the documonts or letters; (2) If thore is not such grant or liconso it hae not been proved to have boon entered into by the Commissioners and tho General Manager as is.alleged in tho statement of claim; (3) If it is so proved, it is not a contract entered into under the Crqwn Suits Act, 1881', for and on behalf of tho King; (4) That a concludod contract is not disclosed from the letters or evidence at any rate; (5) That the possession by plaintiff was ontorod into only subject to a concluded contract being arrived at, and that the raents entered into by him were only preparatory to such contract; (6) That if this wore so, plaintiff's possession was at any time terminable by reasonable notice* being given to that effect; (7) That the Commissioners had no right to grant exclusive rights to anyone to sell the articles mentioned under the by-laws or otherwise. Mr. Harper, continuing, stated that ho intended to raise additional non-suit points at a later stage, and Mr. Skorrett said he would offer no objection. It was then agreed that all the facts should go before the jury for tho purpose of enabling damages to be assessed, and that tho questions of law should bo argued when tho motion for judgment came on. Mr. Harper, in opening for tho defence, stated that the case was one of the most difficult in which to assess damagos that had been before the Court for a long time. Ho could find no case exactly like it. In hin opinion, no damages should he allowed in respect of the claim on tho first cause of action, and with regard to tho claims on tho other causes of action ho said that the jury would just, have to do the host thoy could. Frank O'Connell wns tho first witness called by tho defence. Ho stated that, at first, ho" was inside superintendent nt tho Exhibition, and, subsequently, inspector over the rights of concessionaires. A concessionaire was a porson to whom selling rights wore granted. Hie duty was to seo that concessionaires did not exceed their rights. Ho did not see any contract betweon tho Conimiiiaionore and plaintiff, but ho saw tho list of concessions which had boon granted to

him. Tbo concessions were in respect offruhV, lollies, and biscuits. Plaintiff had' also'solu. fruit salad, lemon squash, and .strawberries, and croam. This fact he communicated to tho authorities. About December-15 he had occasion to report to the authorities tbat'oheof plaintiff's-stalls in which fruit and confec : tionory wore on salo was , not open "continuously. The stall in question'was-closed'up altogether five days before . Christmas aiiu not re-opened. On the morning-of-Boxing Day Mr. M'lntyre (Director .of Exhibits) gave him instructions to inform Scott or the attondant in charge that , it was impossible for , plaintiff to open up the. stalls until such timo; as ho (plaintiff) had the'general man-., ager. When he went^to-the stall to deliver' tho message plaintiff not there. An attendant named , HarrisjS'as. in charge Upon hearing the mossago, ..Harris replied, " I expected something of tlio sort, but I will not. shut up this stall until 1 see Scott." Subsequently, Pegg, who was"Scott's manager, came on tho scene. He-Raid.,: "I-will .shut up all the stalls 'with' tho exception of the exhibit stall. I will open; that-.one in , :spite: of you." Mr. Munro gave instructions to Mr. M'lntyre not to let plaintiff do any business until such time as plaintiff ha'd.'madearrangemonts with him. Mi\ M'lntyre again gave witness instructions to " that. ' effect'. When Mr. Scott nrriyed he weiitj.Syith his; manager in the direction of the,main^olfice , at the Dome. Harris locked 'the' door', -'a'n'd witness askod him to leave the or someono else in case of firo.."' On one;"be-] casion a fire had occurred in the'next stall.: Harris went to join Scott.and..hJOna.!i.iigqr.;.' but camo back and said, \'",Weil,^yqir'c,ajs. : , .have tho key." A constablo .jyas-'not' sp'e-' cially summoned in ■ coni'iect'io'n" /iviili' .r'thd! matter. .- i ."'!"." 1 '.""'~ i ,." , ';.■ ;,';.!■"".". il Witness was then cross-examined hi Mr. Skerrett. '■;'" ."'"J'. , ■;" , <i .--" Wns the list of which yoir saw the official list.?—l would not like to.s'a'y,,. Did you hear anything about tlip'-'trouble' with Scott regarding the' : 'contract .prior , "!'t'6* the date in question.—No....'.''."",, "S ■."."■".".'..,-': What were your instructions?— That..the stalls were not to bo opened for business imt-Llj Scott had soon tho general manager. .":..,.'' 'j t . How is it that you "remember\so M-etK -the , words of the mossago?—tt'occiirrpd to me. ftt the timo that there, might bK.ahJ..ac|;ipn,,V, Will you deny that your instructions,.w.er.e tantamount to an ordcir to. oxclude' Scott' from his stall?— Yes. "".''":":..'^:^ ','_■'.' ".'.'.."\ What would you have let himidone?.— No i answer. t '•.'.■. ■„•,,,'- - ■" .His Honour • Wouldybu havo 'allowed hiiii'' to sleop under the cdniifef ?"—No." " Counsel: Would you have,allowed .him-,to ro in and remove his goods?— Not" unless'ho had an order from the main' office. Did Mr. Munro say, "See thatiiothing-is taken out of the stalls—not eve'ii'a'b'anaha?" —I did not hear him say that,;- .;/ If Mr. Harris says be did,; is-.he -saying what is untrue?—As far as I know it is-un-true. ' : . ,■,,,...;,■, ;»,-,.'u..-.:J.;., How .it is that you remember so.WfilLwhafc, took place?—My momory is-.g00d..-I:.was':in-, tho polico force for some years, ■'■■■". His Honour: That accounts for.-the'exacti-tude of his evidence. ...;;.;■;,- -_.. i.v:;., Further oross-examined,--witness' stated that if tho plaintiff his- stalls for business ho would have summoned the polico. Ho i would not, in that event, ]iave..nsked;th'e polico to put him out of;the. bnildingr-No.i3 stall, which was closed .-up \ five .dnys'heforo Chi-jstmas, nnd not re-opened,, wnshiii.an exceptionally bad location. ~-.,..1". ::::. ■;- (J. S. Munro, gonoral manager of"the Jato' Exhibition, was then called; ■■■• He-stated' that ho remombored when.-tenders ■.were"invited for tlie right to sell fruit and confectionery.All tho tenders wero in prior to' September 5, 1906. Witness produced^tho. official list of tonders received: At. tho foot thereof .was' tho recommendation of the : Selling.Jlights , Committee. Scott saw : him before his tender, was accopted. At that time plaintiff wasonc. of the few who wero on .friendly terms,with mm. The name of the Exhibition Fruit 'and Confcctionory Company appeared ' among those of tho tenderers. ; Ilo.iinderstood-thnt if Scott didn't own the Cpmpany lie was largely interested in it; in. fact, ho.thoughf Scott was the sole proprietor.-.;..-Hovshowed ,, the list to Scott before h'ia teildotj.was-aci-coptwl, hut not aftorw«rds> , T The, Gommitte'oi recommend that acceptance: of -the: tender of' Scott's company be-confirmed-;subject to-, satisfactory ' information : being, obtained;.-- he c to tho personnel of the Company> -Witness's colleagues were afraid thab the Company might bo a bogus one.;. He told thorn that he understood Scott. owned the'l.Comp'ahyljhis colleagues woro not.quito.sure.'':Withe'ss' showed tho minute at- thevfoot);qf:'tho-'liDt-to Scott, telling him. that, unless ho. camo out in tho open and declared..-.himsclfyiitho Committee might mako it an excuse-for»not-: accepting his tendor. Ho wae trying to give tho businoas.to Scott:.a)i.;tho: 1 -tjme.-. .Subse-: quontly a letter wits sent-to Pegg,-who-was-Scott's manager, with refereneovto'tlie-.pcr-soimel'.of the Company..,. The", right to;sell confectionery. specified lollies- and biscuits,: and the right to soil fr.uit,,specified.fruit;.only.! Scott's manager requested him to mako;out tho contract in Scott's natnQj./statingvthat Scott would sign it. On, a number, tof.occa-;: sioiis, between September 17 and the date on which the Exhibition opened, ho asked Scott to sign tho contract. . Every one of the seventy concessionaires,.excepting Scott, signed their contract;-,,',. Seein- that Scott was chairman of . the' Building Committee, and a member of thonKxecutivb Committeo, lie could not treat him as-..ij stranger and say: "You must siga-tho:;c6i)tract beforo you can go on." -. •,...- .-, -,-•..■...• „ .-• AVhat about the dispute as to-the defini-; tion of confcctionory and Vfrnit?.r-rl; conv sidored . . .-,,... .-.i. , ,- '■■.;.'.:' -r.-.'; Mr, Skerrett, amidst" laughter:-;Would*you oalj a plum pudding a. loll.io or.ii .biscuit?—-/ Neither. -, '. .';...,,. ...,,,: ~.,,, Continuing;, witness stated that he. did not consider that plaintiff hold the rights to-eell-strawberries and cream, V fruit". tellies, and lomon squash. The rights to.,sell .these.arr, tides had been, purchased by othor stallholders. Plaintiff was doing- a-very largo business in lemon squash. ,-,,,.,- .■,„-.,,,:.:.,;,- His Honour: And you panted to. squash Witness, resuming, said_ that plaintiff's profits wore made from'tho" s'ald'of articles which ho was not entitled to. sell.. After the Exhibition opened, witaess'^askecl'Scott on more than one occasion to sign the'contract. When matters reached an acuto stage, i.e., in December, Mr. Stringer ■* (representing ■ plaintiff), Mr. Cassidy, and viewed the Hon. HflU-Jones,, who subsequently informed Mr. .Stringer.-.that;-; if plaintiff did not sign Wβ' contract, -payrtho-; arrears of rent and space cease, committing breaches of th();rnlos aiid lations, he would be stopped-sell.ing.-,:'Then; Mr. Hall-Jones told witness,,. .-■■■ ;,v~.,.i -..:-. Mr., Skerrott's objection.,,to .witness stating, what Mr. Hall-Jones said to him, was ujk held. ..' ■.■.",;- "-• "-■;•••..■; Continuing, witnoss stated -.that -afterDecember 15 ho sent tho contract' to Scott.";s> manager for signature, but;it.;Was returned to him through Mr. -Stringer;- who - wiskod: certain alterations to -be made, but -witneesr would not agreo. On the morning L of ;Box-, ing Day witness had a conversation with Mr., M Intyro (Director of Exhibits)-, and; suh ■•] sequontly, both went over to plaintiff's.stalls. It was untrue that witness had said,to anyone: "Sco that nothing is taken-out of the place—not even a, banana." AVitness told M'lntyro that he would not permits tho stalls to be opened for business until somo agreement was arrived at and, further, that ho was to treat plaintiff as an ordinary exhibitor without a concession to. sell.. Thore. was nothiug to prevent plaintiff 'from-dis-playing his exhibit; only the right to sell was cancelled. About a.week later plaintiff came to bis office and Baid: "Here is my; key." Early in Decembor witness noticed that one of plaintiff's stalls was closed. Later on, it was closed absolutely, and never opened again. Plaintiff had paid for his exhibit space, but only .two .weeks' rent for the othor stalls. After the Exhibition..closed 1 repeated requests wero made to plaintiff to remove his goods, and thoy wero ultimately stored at plaintiff's place of business pending the resnlt of tho present action. A full list of tho goods was mado up. At this stage tho Court adjourned until this morning. . i . "...