LAW REPORTS.

Dominion, Volume 1, Issue 132, 27 February 1908, Page 4

LAW REPORTS.

SUPREME COURT.

CIVIL SITTINGS

ALLEGED Hl'liACH OF AGREEMENT,

CLAIM FOR .£1232 DAMAGES. The civil sittings of the Supremo Centwei'o ■ resumed J'c.st'crdny morning, His Honour Mr. Justice Chapman taking his scat at 10.30 o'clock. Tho case sot down was that between Henry Montague Field and Thomas Andrew H. Field, of Nelson, and the Puponga Coal and Gold Mining Compaii'y of New' Zealand; Ltd:; a claim for damages lor alleged breach of agreement. Mr. Myers (with him Mr. Ostler) appeared for tliq plaintiffs, and Mr. Morisoii (with him Mr. Richmond Fell) for the defendants. Tho .statement of claim set forth that on September 26, 1001, the defendant company, which is a joint-stock-company .carrying 011 business in England and at Puponga (in tho County of Collingwood, New Zealand) and the plaintiffs (who are merchants ■ currying 011 business at Nelson) entered into an agreement for tho sale by the plaintiffs of tho whole "Output "of" tho coal from tho-de-fendant's mine at I'upouga, and for that purpose the defendant appointed tho plain-' tiffs its sole agents for six years. In pursuance of the. .agreement and for tho purpose of carrying out tho duties of sole agents tho. plaintiffs visited the principal centres in tho Dominion and arranged lor tho salo and transport of. tho coal from tho mine. From. September 28, 1901, until February 6, 1003, tho f.o'.b.;'i'ates were fixed and acted upon, and plaintiffs-disposed'of tho wholo of the output except'that class of • coal known as nuts. On January 17V 1903, tlio defendant company gavo .plaintiffs .notice-, that it proposed'effecting sales of coal in Nelson and in. other .-parts of the -Dominion, under Clauso-9,.0f tlio -agrooment, which made it lawful, for., tho , company to ■ effect certain sales of coal from tlio mine provided that it allowed plaintiffs 5 per cent, commission .it tho rato .of 10s. -per toil. 011 -February '3, 1906, tlio defendant company, by its attorney (Sydney George: Hay ward) notified tho -plaintiffs-, thati.it would -licit fulfil any. moro-of their, orders for.coal, and the company, without endeavouring to fix any new f.0.b.; rate, elected-to-soil tho wholo of its output under tho provisions of Clause 9 of tho agreement, and thereby prevented the plaintiffs from performing their part, 'of tho agreement. About tho months of January and February, 1906, the defendant .company, without tno knowledge or consent of tho plaintiffs, and in broach of tho agreement, appointed agents in Nelson and otlier places, and sold large quantities of coal. Between January 1, ,1906,'and'September 11, 1906, the plaintiffs gavo defendant orders for coal totalling £1148. which the'company refused to supply, and tno company supplied the orders itself in breach of the agreement. Subsequently, 011 Juno 12, 1906, tho company,, with the object of cancelling tho agreement, sought to imposo' ah, arbitrary f.o.b. rate, being a rate in excels of tlio valuo of tho coal, and thdn, 011'August',23, 1906, gave tlio plaintiffs notice that it considered''tlio agreement discharged, and that' it would pay the 5 per coiit. commissionunder Clause 9 . until August 31, '1906, only. . According to-plain-tiffs, tho agreoment. could not. ho'legally determined until September 26, 1908; Plaintiffs therefore claimed toi recover, damages amounting 'to '£4202.' . ' '' " Tho statement of defenco set forth that tlio agreement' could operate as a contract •only-; as long as ,tho 'f.o.b. rates for tho coal for tho tinio being fixed and agreed 011 ihould remain in force. As ,thc price of coal • fluctuated according to circumstances, tho 'plaintiffs- onterod into tho agreement taking tho -full risk of being at any time unablo to agrco with tlio company upon tlio f.o.b. l 'fttps.; Tho agreement-,. defendant company continued, operated as a contract until August 23, 1906, when; by reason of : the plaintiffs and tlio company being finally unablo to agreo as to the f.o.b. rates, the agreement becamo abortive, Slid was put- an ond to. For a further defence in tlio alternative,, the defendant, company alleged that on February/), 1906; and Julio 12, 1906, the f.o.b. i;ates'had'ceased to obtain, the agreement had ceased to' bind tho parties, and tho plaintiffs had received moneys under Clause 9 to which they were 'not' entitled. And, for a further defence, it was alleged that •it had not sold any coal ..in breach of the agreement, that the'percentage provided for in respect of coal sold had been sold to plaintiffs, that it had not refused, to. supply any orders,'that tlie plaintiffs wore not en-' .titled to commission under Clause 9 during tho unexpired term ; of tho agreement, and that-tho company-, did not at any timo elect not to fix, nor had it ever, prior to August 123, 1906, disentitled itself froni fixing the f.o.b. rates: In tho alternative tho Company stated, inter alia, that the, fixing df the f.o.b. rates remained in. abeyance ,until the stops taken by- tho defendant to improve tho berthage at Puponga wharf by dredging was sufficiently far advancod to enable tlio company to judge what prospect of success it had in regard to reducing tho cost of freight from tho Puponga. wharf. Mr. Myers then addressed the Court at length 011 behalf of'tho plaintiffs. Having heard Mr. Morison in reply, and subsequently Mr. Ostler, His Honour int-i-. mated-.that ho would reserve "his judgment 111 tho case, which ivas one of considerable importance. ;

. MEETINGS OF CREDITORS. QUESTION OF PRIVILEGE, A reserved judgment of considerable importance was delivered by His Honour Mr. Justice Chapman .yesterday afternoon. It related to tho case' 'between Edward John Searl and Ihoinas Patrick Lyons, an action for £1000 damages for alleged slander. The defendant brought forward a summons to stay proceedings upon the ground that the statements complained of (if made) were made at a meeting of the creditors of tho plaintiff held by tho Official. Assignee'under' .the authority of tho Bankruptcy Act,', 1892, : and upon the examination on oath of the plaintiff and were privileged and were mado] (if at all)"'by tho,'defendant.asa creditor of the plaintiff, and as the lato pnrtifcr of the plaintiff upon tho examination in respect of matters in which tho defendant had a, direct interest with the other creditors of tho plaintiff. | His Honour, in the course of. his judgment, stated that, sorno of the. matters alleged wero'disputed, as, for instance, tho fact, of tho defendant being a-creditor, It ; was' iiot suggested that'tlio defendant was examined or sworn by the Official Assignee. At the meeting lie was said to liavo used words imputing to plaintiff that be had blackmailed and robbed defendant, that he. had pocketed a sum of £100 payable by the firm for rent which remained unpaid. There were further statements which a jury might regard as imputing crimes, und .those words were not uttered in answer to questions put in examination by tho assignee..-'

It was not disputed, His Honour ■ continued, that, to justify tho Court iiy acting oil; tho summons, the defendant must make out, a caso of absoluto privilege. The lawoil the subject was under review in tho Court of Appeal as late as 1902 in the ease of Jcllicoe v. Haseldon (22 N.Z.L.R., 343,' and 0 Paz. L.R., 207), in which it was held that a statement made by a member of a commission sitting under the Commissioners Powers Act, 18G7, was not- absolutely privileged. The question before the Court >vas whether there was any rule of law which protected ' the defendant. The goneral rulo was laid down in broad terms by the Court of Exchequer Chamber in the lending case of Hawkins v. Lord' Rokeby (L.R., ,8, Q.B. 253, 203) as follows " The authorities are clear, uniform,' and conclusive that no for libel or slander lies, whether against jiMges, counsel, v.-itnesses,.or parties, for words written; or spoken in the ordinary course of anyproceeding before any court or tribunal recognised by law." Some comment had been, from time to time,, made upon the expression "court or tribunal." It accordingly became necessary to consider' what were the functions of the Official Assignee as to meetings and examinations. Under the Bankruptcy Act, 1802, Part VII,

lie liiul power to summon meetings at which ho was minimi to act as chairman. There was no stated limit to the classes of business that jniglit be transacted at a meeting, and it might bo safely said that at it might ho transacted all business that the creditors were cut-jtljbd to control by their votes, but such business was not judicial. There was no ground to be, found ill that part-of- the •Act for suggesting that tho Assignco thus sitting as chairman was ( a. judge of a court or tribunal, or that lie was otherwise exercising_ judicial authority. . Nor was there anything in that part of tlio Act which empowered t-lio chairman for the purposes of tile meeting to examine tho debtor on. oath or otherwise. The examination of tho debtor when 011 oath must therefore bo referred to_ powers to be found in Part VI, and particularly in Secton 92. 'l'lio lastmentionccl section gave power to " examine 011 oath the bankrupt, his wife, or any other porson whomsoever known or suspected to have in his possession any of tho property or any book, paper, or document relating to the affairs or property of iho bankrupt, or Suggested to bo'indebted to the bankrupt or whom ho may deem capablo of giving information respecting the bankrupt, his trade dealings or property, etc." That, power would presumably include the case of a person invited, as defendant was, to attend and assist the Assignee quite irrespective of tho circumstance that tho time and place of his attendance coincided with that of the meeting. The Court would assumo that; if the defendant had then been under examination, the observations of.Williams, J:, in Jellicoe v. Haseldeii, with respect to' witnesses, would" have justified it in saying that he was protected with respect to his answers even to the extent of being protected with respect' to irrelevant answers. It was not, however, suggested that ho was'then, or at any time, under examination. His Honour did not think it possible to suggest that tho assignco was at ■' all times, or at any time when 'making statutory inquiries to ho deemed a court or tribunal, so as to, as it were, protect all persons who .-might be in lawful attendance in tho room as interested parties from tho consequences' of anything they may happen to say. He, gave : no" judgment and mado 110 order, and the power vested in him by law to do somo such act miist.be tho test.

His Honour stated, in conclusion, 'that lio was forced to the conclusion that, as tho words complaincd of • \roro not spoken ~by' a witness in answer 'to questions put to him in tho course of an examination, and as defendant was not at.,tho'time a.party in attendahco on a court or tribunal entitled to take part as such in its proceedings, no such privilege as ,was claimed existed. \\ bother ho could claim the" privilige of a person 'making communications '.without malice to persons ; in common interest with himself upon an occasion prima facie privileged was a question wit!) which the Court was not then concerned. Tlio'siWmoiis was dismissed, with £3 3s. costs. MivDnnu appeared ion behalf of Searl, and jllr, .Bunny for Lyons. A MUNICIPAL CONTRACT. JOINT TENDERERS DISAGREE. ' Reserved judgmont. in the case, 'David Andrews (appellant) v. Mimt, Cottrell, and Co., Ltd. (respondents)—an appeal from a decision given by DiwM'Arthur, S.M.—was delivered' by His Honour''Mr; Justice Chapman yesterday.' ■ ■ The .respondent company, the appellant, and two others, observed His Honour, entered into an agreement on September 24, 1004, to undertake, in co-operation, to -perJcrm tho . work under a carrying contract with tho Wellington City Corporation to ho tendored for by the respondent company, it was recited that tho work was of such magnitude that it was; practically heyoiid the capacity of a singlo firm to carry it out. A clause of tho agreement provided that "tho 'successful tenderer'shall, allot to each of the other parties - one-fourth par/; of the work'to be; done at ..the 'remunerationfactually received per ton, etc." . . .. , One of tho .contentions mado,;bn tho part appellant t .(who was'countor-claiming defendant in tho Loiver Court), was, ■ His Honour continued, that the four parties wore partners, and that each was entitled to onefourth of tho profits, or even perhaps of the receipts, irrespective of' tho amount of work done. The consequences of such an arrangement might be so startling that it was difficult to suppose that 'business nien would commit themselves to,.anything of tho.'kind without first providing for the actual disbursements: on. account of labour and the actual, valuo. of''the use of plant. ■ Apart from_ 'these considerations, however,' tho wording of the clause; and of tho. agreement generally, was inconsistent with.the contention,. • v

The respondent company was not, in the opinion of: the Court, chargeable .with tho absolute duty ol' apportioning., tho work equally. It could only bo said that certain ; phraso3 in an agreement (probably drawn by tho parties '.themselves) gavo some .slight support to this argument,, hut not sufficient tp establish, as'was intended, As well might it be. contended that ; some, such Action would lie against appellant. or some forfeiture-ensue from his unintentional failure to do his sharp of tho work. It might be that the company would have been responsible for knowingly engrossing- more, than, its share,-, but,, even then, the measure of damage, would liavo been the appellant's actual loss, to lie proved as in tho case of any other breach of coiltract. 'Of .such proof, there was no traco in tho evidence. It was scarcely disputed, observed His' Honour, in conclusion, that tho Magistrate had-correctly dealt with a common loss in the shapo of the costs'of an unsuccessful act/ion-brought in the common interest. 1 On the whole, the Court could see no reason whatever for interfering with the Magistrate's judgment. . Tho appeal was therefore dismissed With costs £7 75., and' judgment appealed from affirmed.

Mr. Dunn appeared on behalf of appellant, and' Mr. Menteath for respondents. COMMISSION ON A PROPERTY SALE. 'His Honour, -Mr. Justice Button, yesterday delivered reserved judgment' in "the case. William Wight Smith, .estate agent, v.. Augustus S. Biss, accountant, Martin Chapman, K.C., barrister-at-law, and Lowthcr Duignan, of Wauganui, accountant, a claim for £237,105. being commission alleged to'be due'in.connection with the salo to Mr. Frederick Cooper, seedsman,'"of- a , property situated in Mercer and 'Willis' streets, anil occupied as a jeweller's shop by' Messrs. .Hash and Gooder. ' . ' - After reviewing the evidence, His Honour hold that but for plaintiff'and his exertions the buyer , would , never liavo bought tho property. : ■ ; Judgment was therefore given for plaintiff for £237 10s., .with costs on tho. middlo scale, 'arid allowance", 'for second counsel and for. day.' and costs of .interrogatories. ;■' . .- ... .-' ' ..; i v-'. Mr. Skerrctt-.'-.E.C.-. (with.him Mr.- Johnson) appeared for the plaintiff, and Mr. Bell,ICC. .(with him /Mr. . Tripp)'' for . the defendants.') . '