LAW REPORTS

Dominion, Volume 1, Issue 71, 17 December 1907, Page 7

LAW REPORTS

SUPREME COURT. CIVIL SITTINGS. THE EXHIBITION CASE. CLAIM FOll £-1500 DAMAGES. PLAINTIFF AWARDED £1300. Tho Civil Sittings wero resumed yesterday morning, His Honour Mr. Justice Button taking His seat at 10 o'clock. .The. hearing of the action between George Scott (of Christchurch) and His Majesty the King was continued. The statement of claim set forth that plaintiff, who was a fruiterer and coufcc-t-ioncr, carrying on business at Christchurch under the style of " Tho 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 ware wrongfully seized and retained; and "that an agreement that he should have tho sole right to sell confectionery and fruit at and during the Exhibition was violated. Plaintiff therefore claimed in all £4500 as damages. Tho statement of defence set forth that there was no contract; that the proceedings were liegotiatory preparatory to a contract, and that plaintiff broke, tho rules and regulations of tho Exhibition, infringed on the rights of tho other concessionaires, and did not pay his rent. Mr. Skerrett, K.C. (with him Mr. T. G. Russell, of Christchurch), appeared for the plaintiff, and Mr. G. Harper, of Christchurch (with him Mr. J. A. Cassidy, of Christchurch), for tho King. The jurors were:—W. Berry (foreman), W. H. Jones, Ernest Baird, Peter 11. Walters, W. W. Mannill, Thomas Brooker, Jnines Areus, Hugh Slado, John Turner, John Bowers, W. M'lntosh, and W. Sleinner. George Samuel Munro, general manager of tho late Exhibition, gave further evidence on behalf of the defence. He stated that ho did not order a constable to be stationed in front of plaintiff's stall after it was closed. When plaintiff brought tho keys to him a week after he was ousted ho said: "I understand you want theso as decaying fruit requires to be romoved. You had hotter keep them altogether." Plaintiff never asked him for the keys subsequently. Regarding the stall, which was closed five days before Christmas and not reoponed, Pegg, who was plaintiff's manager, told witness previous to tlio dato on which plaintiff was ousted that it was not paying, adding: "The venture is now paying. ' Wo aro going to close tho others after Christmas."' Eighteen passes wero issued to plaintiff for use by his attendants.- These wore not recalled after plaintiff was ousted. Witness never received instructions from Mr. HalUJones to closo down plaintiff's exhibit stall, and never intonded to do so. Mr. Harper at this stage mentioned that witness wished to make a statement with reference to tho tendering for tho rights which wore granted to plaintiff. Mr. Skerrett: It can have no bearing on tho questions at issue. , His Honour: Wo have, had Scott's version of what took place, so it would be only fair to allow Munro to givo his. Mr. Skerrett: Very well. 1 beg to withdraw my contention. Witness then made the following statement: "Plaintiff saw mo, and said ho was anxious to securo the rights. The tendors came in on August 25. I gave plaintiff a note on which wore tlio aggregates of eight highest individual tenders. Plaintiff then altered his tender to a sum exceeding the aggregate. The tenders woro then sent t9 the Selling Rights Committee, which recommended that jihiintiff's tender be accepted if certain information as to t|io personnel of his company proved satisfactory. I was never promised any consideration by Scott, and never received any."His Honour: Did you think j;oti did what was quite fair to the other exhibitors? . Witness: I did. not, Your Honour. Should I have been asked that?*. His Honour: I think you should.. It was a matter between you and plaintiff. He was just as much in it as you were. You didn't think it was quite fair, still you allowed it. Witness: Yes, Your Honour. I would also like to say that all I got from plaintiff was his betrayal on Friday of my confidence. Mr. Skerrett then cross-examined plaintiff. Is this voluntary explanation : a confession rather than an explanation?—lt is. As I understand it, it- is a confession that you handed over to plaintiff certain information as to the tenders, and you permitted him to alter his .tender? ' His Honour: It is certainly a confession. Mr. Skerrett: What was your motive in offering that explanation ?—I want the world to know that 1 never got anything from plaintiff. - Was not your motive spite towards plaintiff ?—N0,..-. Did you ever threaten to mako tho explanation?—l told liini that I must clear myself. Did you not say: "If you-go on with tho case, out will come this little fact"?— No. ! Why did you approach plaihtiff regarding the tenders?—l thought it would bo moro convenient to deal with ono concessionaire than 'with 'five or six. I understand that the grants of spaco wero for tlio wholo period of. tho Exhibition?— That is so. And the selling rights were for tho samo period?— Yes, generally. There woro somo exceptions. : Do you deny that plaintiff's rights woro .exclusive?— Yes. Thero is nothing in the conditions showing that they were to be exclusive. I could not go beyond tho conditions. ; I ask you again, Was it not intended that they should bo oxclusive?—lt was, not so intended. It is stated in a letter written by you that plaintiff would be allowed royalty, seeing that certain English firms had been granted the right to sell their confectionery ?—Yes, I suggested that. What is the sense of that if it does not show that plaintiff's privileges woro exclusive? —It speaks for itself. That refers only to ono stall. I could not prevent restaurants from soiling fruit. Tho intention of the contract was that, plaintiff should have four stalls, from which fruit only should he sold; the same applies to biscuits and lollies. You nave said that you asked plaintiff on many occasions to sifj;ii the contract?—Yes.^ When was the contract-prepared? — Tho first, draft was .prepared on September 10. ■ Whon was tho fcontraet ready for tlio plain-; till to sign?—Aftor plaintiff's manager asked mo to inakc it out in plaintiff's name. When plaintiff's solicitor wrote stating that yon had boon repeatedly asked to see that tho matter wns fixed up, why didn't you reply that it was untrue? —My solicitors did. Plaintiff never eamo to sign tho contract. Plaintiff's solicitor suggested certain alterations in tho text of the proposed contract, hut you wouhj not discuss thoin with him. Would it not have been only a matter of courtesy to do so?— The Exhibition was only going to last a limited period. The period was too short for courtesy?—No answer. The fact remains that, you didn't, frouhlo to discuss thorn with plaintiff's solicitor? — Yes. Ho did not send along Cl(i0 due for rent. On December 24 a wire was sent to plaintiff's solicitor that if something was not dono t-lio concessions would be withdrawn forth-with?—-Yes. Plaintiff and his manager had boon warned previously that that would bo done. liiit this telegram was sent to plaintiff's solicitors on the 24t-li, when they were, on the eve of closing their offices for the holidays, and two days later, i.e., on lloxing Day, plaintiff was ousted? —That is so. Was that not a high-handed action?— No. What was it that you objected to in the proposed alterations in the contract?—To the term, "snle right," and to the warranty clause. These were the principal clauses to which I objected. Was plaintiff to have tho only fruit stalls in tho Exhibition?—lt was not so stated in the conditions, but it might be inferred. May f term you a business man?—l think L you cao.

His Honour: If witness had boon a solicitor lie wonlil have stuck religiously to, tlui words of tlio tender, but, as lie was not, I don't sc<! why ho should have so objected. Mr. Skerrett: If you had agreed to the alterations that would have bueii ail end to tlio trouble? —No answer. You didn't think that plaintiff could not pay the rent?— No. Didn't what you £aid to Mr. M'lntyro imply that nothing was to bo taken out of the stall?—l told Mr. M'lntyro not to permit plaintiff to do any business. Ho eoidd have removed his goods, but ho would not huvo been allowed to deliver articles to customers at the Exhibition. Bid you tell him or write him that he could remove the goods.—No. Why didn't you?—l didn't feel called upon 'to do so. When the fruit was decaying, why didn't you nsk him to remove it? —The Director of Exhibits did so. ■.Who told you so? —Tlio Health Officer complained that (ho decaying fruit was a nuisance, and Mr. M'lntyro sent word to plaintiff. Was not your action against plaintiff precipitated by feelings of spite?— No. T was on good terms with the plaintiff until lie went into the box on Friday. Is it not a fact that yon did not speak to plaintiff for months after Llie incident? —No. .flow often did you meet him after De-cember-2(J?—Twice a week. I never passed him without saying " Good day." i If that is so, why didn't you ask him when he was going to his goods?—it was no business of mino whether plaintiff took thorn away or.not. lint, .five stalls were now lying idle. Was not that your affair? —I did not think there was any necessity for me to speak to him 011 tlio matter. And you were the "king" of the Exhibition?—! was General Manager. I beg your pardon. Perhaps that was a bettor title. Were you too tired to do it?— r didn't trouble about it. When plaintiff handed the keys to you, what transpired?— Well, Scott put them on tho counter. My brain was working/busily at tho time. I wondered whether I should accept them. Then Scott left hurriedly. I thought ho had been instructed, to leave them 011 tho counter and leave immediately. "My goodness," I thought, "this is a trap." I can't understand why ,vou didn't ask plaintiff to remove the decaying fruit on the occasion when yon say ho brought the keys to you?— Plaintiff anticipated me. He said: "1 understand you want the keys so that the fruit may be removed." I also remember that I had heard that plaintiff had said he did not intend to remove tho fruit. _ If the keys could not have been in plaintiff's possession at that time your evidence oil that point must he untrue?— Obviously so. In connection with tho Exhibition you'had a lot of trouble? —I liad a lot of hard work' to perform. That is not what I mean. Didn't you have quite a number of quarrels With others connected with the Exhibition —with tlio. Com-, missioncrs, for instance?— No. I didn't quarrel with them. Didn't they resign?— Yes, because tliey found that the. Act did not permit them to do certain things which they wished to do. Tell mo the name of one commissioner, exhibitor, or concessionaire with whom you did not quarrel?—lf I had tlio list before nio 1 could give you six or seven hundred names. There were, 1 admit, a few persons who were not amenable to reason. You being reason, of course. Was plaintiff one of those who wore not amenable to reason?: —I had somo trouble with him. And out ho .was to go?—Oh, no. Ik-examined, witness stated that when lie wont to Christchurch two years before the Exhibition opened lie was a stranger there. Tho success of the Exhibition was attributed, to a great extent, to the able manner in which ho had carried out his duties. The present caso was tho only one which had arisen in connection with the (front undertaking. About £500,000 of Exhibition moneys passed through' his hands. At this stage, tho jury, through their fareman, asked whether Mr. M'lntyro (who was the Director of Exhibits) could lie callcd as a witness. It appeared to tliein that ho had been tho chief person who had had to do with tho actual closing of .the stalls. His Honour: Tlierti seems to bo somo difficulty in getting him. I may point, out that on one sido the evidonco is directed to show that Munro was actuated by a little feeling, and, on the other band, Munro has tried to explain that statement away. What you have to decide principally is how much plaintiff is entitled to receive as damages. Tho Foreman: The jury consider that M'lntyro would he an important witness.' Mr. Harper, in reply to His Honour, stated that M'lntyro could be got if necessary. Ho was at Lyttelton, but not at liberty. ■His Honour: I'don't think his evidence would bear so directly on the question t of damages. 110 could only speak with regard t'> whether Muuro's conduct aggravated matters, whether ho ever got the key or not, and whether' plaintiff could have removed his goods if ho so desired. , The Foreman: The jury do not wish to press tho matter. ■ : Plaintiff was then recalled by Mr. Skerrett. have heard what Munro said with reforencc to tho return of the keys?—l hardly know how to answer. I realise that I am on my oath. If I never move out of this box alive —if I have to appear before my Maker to-day—l swear that I never entered Munro's office after the incident, that I never had the keys in my possession, that I never spoke to him for two months—in fact, I novel spoke to him after lie closed, down my stall until a month after the close of the Exhibition. Whore were these keys usually kept?—ln tho office insido the stalls. They would bo there, on December 2G.. Did von over hear anything further about the keys?— One, day, tho. Exhibition authorities rang up to my factory about thcin._ I instructed my manager to jjo to the Exhibition and show tho authorities where they wore. Was it ever your intention to shut up your stalls?— No. It was ono of tlio best things I ever went into. Counsel addressed tlio' jury at length and His Houour summed up briolly. It was agreed that, on the motion for judgment, any questions of fact not submitted to thejury, and not inconsistent with thu findings should ho determined' by tho Court. ' THE FINDINGS. The jury, which retired at 3.30, returned at G. 15. Their findings were as follows: — Question 1: Did George S. Mnnro bring- to tho knowledge of the plaintiff the minute in red ink at the foot of tho letter Exhibit "X" ? Answer—No. (This issue refers to a minute made by tlio Commissioners, who authorised tho acceptance of plaintiff's tender subject to his enter ing into a proper and approved contract.) Question 2:—Did George S. Munro revoke and determine the right or license to occupy the space granted to tho plaintiff for exhibiting his goods?— Answer: Yes. Question 3:—Did George S. Munro seize, detain, and convert to the use of the Commissioners the goods and property of tho plaintiff' contained in.'such last-mentioned spacc? —Answer: Yes. ' , Question 4: —Did George S. Munro revoke and determine the right or license to occupy tho salo stands'granted to tlio plaintiff?— Answer: Yes. Question 5: —Did George S. Munro seizo detain, and convert to the use of tho Commissioners the goods and property of tho plaintiff' contained in such sale stands?— Answer: Yes... Question o:—What damages is the plaintiff entitled to (a) in respect of the Exhibition stand; (h) in respect of the sale stands? —Answers: To (a) £500, and (b) .CIOOO. Tho motion for judgment was reserved. The. jury were then discharged, and the Court adjourned until this morning.