COURT OF APPEAL.

Dominion, Volume 1, Issue 195, 12 May 1908, Page 4

COURT OF APPEAL.

RESERVED JUDCMENTS. n.'.'vV t i' . / 1 v. The Court of Appeal delivered a number , of reserved judgments yesterday. Mr. 1 Justice Williams presided, and there were also in attendance Justices Dennistoiij. Edwards, ,• ■ Cooper, and Chapman. ->ir- x

ALLEGED BREAKING AND ENTERING.

NEW TRIAL ORDERED. . Tho first judgment given .related.: to the • application 011 behalf of Frank Sales for a now trial 011 a, charge of alleged'breaking : and entering at . Christchurch on the ground that tho vcrdict in his com was against the , weight of evidence. .',.;.:■■ •*,•.. •r j. ■ Sales and one 'James M'lntyro wertf in r . dieted jointly for breaking- and entering the house of the Rev. John Mackenzie m Christv church, and stealing therefrom jewellery, .and money to the valuo :of £57 -lOs., and wore ;. both - convicted: and\s-6!itenced'.; ' On behalf of Sales, it was. V*a4 no direct ovjdenco. to connect him vith'.the robbery. It was, counsel ; saidj his .misfortune to stand in tho doclc with a man who w. undoubtedly guilty*. and<that tho jury . .did npt/ ' direrimiiiato 'bet-w'ccii i t-lie evidence ''.';.';'"prp^rly-.-' : ''.\adini.ssibl.o'' against : M-Intyre and tho ovidence- ■ -admissible against Sake. - ' Mr. Justice Williams "said that a, majority of tho .Court thought" that"'"there "sncnlcj bo a .now.i trial of tUo,.indictmont. The Crown and the prisoner would bo entitled to call additional evidence, notice- of any additional evidence .to- be -. called by ,-t-he 1 Crown to bo, of course, :.given to tho- prisoner.- •-. As there was- to - be...a~noiv trial, ..- tho" Court thought it inadvisable* to'state the reasons upon which the new trial waa gran../tej/'or' to discuss tho evidence.-. '■ :-v, Mr. Neavo, who appeared 011 bchajf of tho prisoner;, asjied that' bail ' should bo allowed;' 1 'Mr;- Justice Pehniston. pointed out that ■ tho prisoner would, bo re-tned-within-r.-yeek: V;^Mr. : - Neavo: said prisoner; wished- an !op,importunity to ' 1 if \ The Court granted '-.bail ; f prisoner' iri"£so, 1 and one surety of £50. .■.

PURCHASE OF A SECTION. ' '

QUESTION OF STREETS. A FAULTY ENACTMENT The Court next delivered judgment 111 tho - case botween Kato .■ Peers (appellant)- _ and Jolm M'Mcnamin (respondent); r -■■".■;■ Tho facts in;this caso were as follow:— . •App.ellapt.; sued. 1 respondent'to : 'comiiel 'speci-' . . fic performanco of a contract to sell a pieco ; of land in Brook Street, West Beach, Island .Bay, Respondent '.resisted ; 011 several V grounds, among" others that appellant could , . not show a goad title. His contention .was 1 that the streets "in West .-Beach; "being only 30ft. wide, were private rights-of-way within, the meaning-of tho Public Works Act, . 1905, and thercforo that 110 vendor dould sell parts 'of : hif'-' holding .' without -' constructing new CGffc. streets. ' The Chief Justice in . the Supremo, Court uphold respondent's contention. - . ' j/.-i.

Mr. Justico : V/i)liamo said-, that there was , no doubt;that the transaction came within tho.mischief that section 116 of the Public Works Act, 1905 ; was passed to remedy. Tlie i question was: Did it come within tho wordp ; of t)io statutelljo fifst' sntysectib.ll of sec- '- tion 116 provided ' that v,w|>irp;,the J owner of , any land sold-' any 'part; "ho, shoul;!, "ijnlcsp such part had a frontage. as '"there defined, provide tho access to it prescribed by the . section.-. (Hie, term i:"ajiy--land',', cerijainly did . . not mean ; any;::lands;;-.tha't:^ of land not contiguous to one another. The ; ; ;. h'a3 iponterided Jnot; ionly. f ; that there :. 'must bo one area,.but' 'that,- in order that, the section might apply, the whole of, the land . in that area must be held under one instrument' of title. . Now, : 'the .miscliicf: the ! Act , .was > intended to guard against -was -the feub- ; / division of -land -by. the oowner, v intd''.parts ; which hacf no sufficient , access- to public : highways. If ,JJiero -was. one' area of- land which .was'subdivided without givmg'thelacoess ■ required by ■ section-116,- thd misqluef , would clearly . bo tho same whether-rthe ■ owner in fee held, the whole under-one,instru'-. . ' ment'. of title, or.uvhetlier.rho lield..several : .-parts : of; .it :under.:several,;instrunieijts,..tjfii- ■ less it,vas nuido-perfectly' clear,:from ,the".Act physical,, uriitynwasvi^' thore.:might'-be somo real or fancied inepnt' t evniences which .aroeo; from a contrailj'gontiurtK something, .further-,was ; required; - He (Mr. Justice,. Williams) i could ,sea nothing in the language of-.the Act'te lead •to the; conclusion that in'; general - anything further'.' was', required.' : '.Tho\intention of. the , 'Legislathro was, indicated by' tho-.,proviso that the sectipn should ;iiot, extend -or. apply , to - thp sale' 'bf' la-pd ."to any adjoining land. That' profiw' ; 'w'as.'prainly .i' foandeil on the unity: of;' area fivas tbCwify' 1 thiit tho ■ part, .when, sold pre-- ■ • .viously/'h'eld ; by the adjoihiiig ;,'6wn^r,. wo.iild 'form ono area; so that .heCTjjld.'n'ot'Betjarately -. .'resall the -part;'.he;'bought''.ijvitbout bringing . : himsdf ;urithin" tho. would nevp; havefallowed' a, liislcapa- ■ city of adioihing' 'o\viief t»,,acqiiiro i ii 'pieoo. of land wjiich no : ono; elso was allowed t6'' ! 'acr ■ quire _ if/:.oriJ ! #s';^itiring-.>it^^ . ' mediately,:dispose ■of it: to"• 'anyoneKelSW'ihe pissed..' By sub&eetion: 6of section■' 116tilie . . word "owner" meant anowner jn feo simplcj, 'whether beneficially or,'as a trustee, and-'in-i -V,eluded."a . mortgagee:: acting'. ; in:': exerciso' ) : of .pem'erof sale. If a purchaser saw from'his ~: Vendor's certifieate-'of 'title .that"tjie Jahfl'-in-ol'iided ill it. had not tho access required, his course was to ascertain*:from the,. Registrar . ;-.ir..i£',.was p«rt of of.: land ■ within : section 116. A '.search, iii/.tho name'of .the : ■ intended vendor, or of the -titlo' of- the ad- . : joining-land wojild give ithe iufcr- • mation. <: Even if it did not, he should-com-"'.'otodo'- that the:'intention'; of the ' Legislature! .. ; was to' protect the public' in de'3pito-.of-: tho .- Land 'Transfer Act:. Thero was no. doubt that , -.oven taking'physical, unjty only'a's tiio test!,' the Act, was' very, imperfect'; 'ai'id soyeral 'in- :;!;• stances '.could; bo ; suggested : 'in' which' the objects, of tho Act could be .defeated: I ''. But; if to physical unitjj'bo superadded'.'the -necessity . ■ ■ of the- Ijind beiiig .held under prio. instrument, ;'.■>! the objects of tli<j Act ebuid'bo'defeate?!,'to a! far'.greater exfijpt, .Tho|:ef<7ro..!he ibviight' tho transaption' irt . question caine within-the words and. tho spirit of tho statuto, and that ' the decision of tho Court-bolow rtuist be af,firmed. ' , Justices Deriniston^:Cooper, and Chapman wore also of opinion iiiat tho appeal' slionld be disinisse<l. ' w; -• . • >V'; . Mi 1 . Justice Edwards held that tho fact.that Mrs; Peers held iinder separate certificates of ■ titlo mado tho land, separsifo and enabled her to se,ll, either part.'The,tfst was not ono of physical 'contiguity,; but . pno . Of title. . § .. _ ■ ' The appeal was dismissed;}.with costs oil tho lowest scale. , t--- ■ Mr. T. Young .(with him E. "Ward) appeared on behalf of appellant/oand. Mr.i A. Dunn for the respondent. .; 0 ■ '

SALE OF A MEDICAL PRACTICE,

BREACH OF THE CONDITIONS,

• Their Honours then delivered judgment; in the ease between; Walter William, M^rc, merly '.of, Richmond but now of- Nelspii'Appellant), and Robert James Orford, of Richmond (rpspondent). ■ The facts in this ca-so wore briefly that on May ,9, 1905, Dr. Moore sold to-Dr.. tho goodwill of his .practice att Richmond, in tho Nelson district. . One of |ho' conditions in the bond was:that Dr.'Mooro should not directly or indirectly and either alono or in partnership carry on tho business of a medical practitioner within a ratlins d£ eight miles from Richmond whilo Dr,..'Orford was in business as a medical practitioner in that radius without. Dr. Orford's consent iii writing. It was provided, inter'i alia, that in' caso.of breach of the agreement £100 j fdr every month or part thereof should be paid. On the ground that Dr. Mooro had, in breach of the condil,ions, set up business in Nolson ■ within the radius stipulated during tho months of July, August, September,' and October, 1907, Dr. Orfortl brought an action in •tho Supremo Court for £400 dauwes. Mr.

Justice Cooper found that defendant had not practised in October, and held that tho amount stated 111 tho bond, was ■liquidated damages. Judgment was therefore given for £300. His Honour further held that if tho amount of tlio bond was a penalty, then he assessed tho damago at £50. Tho present appeal on tho part of Dr. Mooro was that judgment should only bo entered up for tho \, Mr. Justico"Mvai9s) whose judgment was supported by tljßV"other members of tho Court, held that tho caso came within 8 and 9 William 3 c'll sec. 8 and within Rules 489 1-1 491 -of,-.tli<j Cwlo of Civil Procedure; In the present caSaJho respondent was sued upon tho 'bond oriibligation, _ and not upon tho covenants contained or implied in tho dofcasanco. If tho Court were at liberty to inquire whether tho penalty "of the 'bond wero intended to bo a penalty,, or whether it was intended to bo liquidated damages, the result must still;be the same. Counsel for the respondent liad contended that tho Court should read tho words, "if Moore shall not," where they occurred in tho earlier part of tho defeasance as "while Moore shall not-," or long as Mooro should not." ' Suclr^ : n ,r ialt'6i"ation" of language was not roguiral i .fp!:, i ;tl}o,.-purposo of giving an intolligfblo meaning to'the instrument. Farther, contained a' provision.' entitling 4fia Sri»Mn%it to ignore ; tho obligation, -.aml-io-'olaifi' froin tho-appellant general da»aKOS,„IMi T tbey less or, more- than the sum mentioned-ih : the obligation, and 1111 injunction/-That was (juit-o inconsistent .with tho siini mentioned .in -the obligation "was'"intended by the parties : ' to be liquidated ,daitf@c^i:. Upon_ those grounds. alsp..:^pi)pant , ;OTS, A -in ; , his opinion, . entitled, to,-succeeil.-. was entitled ..to have " judgnWt 'en'wred'for him in thcCour "below? ;:fofc. full • amount of his claim, but was entitled to execution only as to the sum of £50, the aijiouiit assessed in the Court below as damages in <,respect of tlio breaches 'alleged, the judgment would stand as security , for any dam-, ages wliich. might bo sustained by, reason' of. anv'furthe? tireaeh'-ttf the covenants. The costs in tho Court below should be. reduced, to- costs--uponi-tho ■ sum of £75, .some small -allowance thus'being mado for any notional valuo which the entry of judgment- for the full. amount claimed might have. If the parties could not agreo as to the form of tho fhou,ld ,be settled in Chambers. limited •'his apnea! .to. the, matter "of 'wliich he .ivas entitled to succeed ho should be awarded costs" in, the Court of Appeal upon the middlo scale, as ;from a distancfeS JrA". ' i ■ Mr. Skerrett, K.C. (with him' Mr. Ostler), anpoareds&it.jbelijijf," of the' appellant'"-and■ ■Mr. Myers , for the respondent;: ' •

PURCHASE. OjF :AN HOTEL. , r

' DECREE FOR SPECIFIC PERFORM- : AXCE. ' ' v . Tho judgment': : iii' tho- case, .' Margaret Quill, v.; was then delivered. . Tllis 3 p'laiiitiif. in Ellis' easo became licensee of the .Railway Hotel, Otaki', ~ upon tho death: 'of her'■"husband in March, 1907. Shoftly-'-afterwardsj' through an agent, ./she. bfforekir.the business as a. going concern, to. defendant for £i0;00(),'. '"Defendant signed tho'Vneeessary agreement, it being - arranged of the purchase money should remain, on .but,' later; hp refused to v^mplj|to^%hß^^nsactipn ; on .seyeral; grounds, JpriiicipaTly,'',becausb,' ho; alleged,, it, constJtiite.d'.. tjie' • iui,;j>st'niont of part of trust moneys on an '' improper and..; inadequate security, the land alone ; insufficient security, iiw ajnpunt, as it-owed, a ( maItcrial . part of iJ;^jaj^9.'lo , ;of it being a licensed house, and':thcrefo're |was of a a'lid hazardous' '.nattfro/ Til 1 -support of plaintiff's claim for specific v.'ns,; submitted that as she • wM".~tSo!.'rbjpsteiled..'proprietress. slio could :have given a goocl.and valid title, .also: that. ;she could make a good title'.to the defondant I upon:, the. terms; of tho contract, she being jthe. : ■ : Mr. ri'ii<l a judgment, in' !which.':me''other members .of tho Court concurred; j;jAs far- as ho was aware, there was, ; lie said/ino case which decided that trustees selling fiinder a power of salo must sell for roady .nibney'only. It would, ho' continued,. .1)0 most disastrous', to :tbe interests-' of .cestui que .trust if such a: rille were' to prevail in fhis country . Nothing could bo more certain,!!' His Honour: thought, than that;' in directing his.trustees-'to sell his.public-house ,ancl liisj; 'lousiness tho.. testator contemplated a, sale "consistent with tho ordinary:.course-of. ;de'ilingi]in'such matters as would produce': a fair , and ; reasonable .'price. TJio qrdiriary ; course Required tiiijo' to, be-piyenvfdr .'-pay--'ment oifa considerable part purcliaso !-monoy,Jm mast cases the greater part of ;the, pribp. Thatj then, 'was the power ■ which, lij his fa>statbrvhad .in. effect ;given to; his, Blaintiff. bad therefore. t-o,.'enter- into ■-■a ' contract tip. sell iVncSf"'t-arnis 'wliiclt gave' tiirio . for payment of y of" t-lio .purchase money. 'It.was .not'contested that the sale was a remarkably good one, in tho interest, of the behefiiriaries under, the trust. Not only was tho vofy largo sum : of £spoo to bo paid upon the ogniplet-ion of .the traris,for and!! delivery of. possession, but it iwitsadmitted upon tho case stated. "that the defendant: wpjs '.a gentleroan'of , substantial and independent means." Tho defendant ■bad in Struth sought to evade the performance of, -ii: contrapb-swliich: ho' no longer de,sired t§| perfornivljyv&aising,- technical VlilH-' cultiesj?which, whatever might bo their legal merits, r ..in - fact, behind ithem, iffi"d' , 'itf r '?ff"'doi'fig lie had disregarded the fact that a successful attempt to evade tho performance, of his contract would very greatly depreciate tho value of the property iyliieh : lie had •contracted to, purehaso. Plaint'iff was thercforo entitled to a decree ;fo>" specific performance. • . •' The case was remitted to the Supreme '•to , para?i'mie'.S!imG.>int{) effect, and plaintiff aw.^Afjl-1,0 coasts and "disbursements iii mo~' Court, and costs on the highest 'scale'*■])■>" the 'Court of Appeal. :,sMrS SkeriSd® JSGt'l'/with him Mr. Ostler), appeared on ..hq^ajf^jif. plaintiff, and -Mr, Chapniaiv /P-C- ' (jvitli him Mr. Atkinson), for 'defendant: *ji,.

A PROPERTY SALE

OF CONTRACT. •'''.Judgmeiitj wns-alsq;'given in tho case boof.'Utiku'(appellant), aMH]oftbi^o.^i^j-oP;j , cildhjg' (respondent). set forth that Joyce, in "June';' I'SO7 ? agreed to-purchaso from through J." T. Barry, land agent, ii .^li(^;«ffi;Saiifß}i{ ,, .Bsr. £IGOO., Ho claimed, th'eipforoVvthat-I'Jo^eo''.might bo ordered ;to P l "*, of tho : agreement. On beha,lf i .qf | vJoyce, it', was pleaded .tjia_t■ tho,-iCO.iVtract Vwa? not a. sufficient contract within- sect-ioh'iyi ■ of. -tho Statuto of Frauds,,29 ChaiTds:ll, chap. 3, also that if it wioreP.pro.vedjtliat-.'theto was sufficient writing then' th(^p.%asjntf } <»ncluded contract. During' tho'arguinent'.Jil appeared-that.the:agent for the vcndc>i'"we , nE' tb tho vendor and signed a writing which contained all tho terms of .the purchase', .'bnt^Oib.'did not communicate : to-the- writing he had signed. All tho agent did was to telegraph to tho purchaser tlmfjy'doposit had boon received, that .tjiq,.vendor, had.,accepted, and that tho matter 'of- poss&siofr had been arranged. Mr. Justice Cooper held that subsequent letters from "the fjurchaser referring to tho purchase were sufficient to adopt and incorporate all tho terms in tho memorandum given by tho agent for tho vendor to tho vendor. Judgment ,wjis given for Wood with costs on tHo" highest iseafo as on a claim for £1600. This wa-s the decision appealed from. Mr. Justice' Williams said that thero was nOiquestiqn;sas;f«rtlvo identity of tho pro'perty. Thore was, m his opinion, a complete contract binding Wood to sell to Joyce. Tho question then was whether tho subsequent letters signed by Joyce were sufficiently connected with tho prior documents to constitute a good memorandum > of a contract within tho Statuto of Frauds so as to bo 'binSing°iij®rf Joycel'-'-Thero was no evidcnco that Joyce had any personal knowledge that .Wood's * acceptance. was in writing. All his lnforiHtloiT'. #aS'"derWe(l -from IJiirry's telegram, " Wood\ accepted." Joyce's letters, when they spoke of his purcliaso from Wood, . referred tcT'ilif) contriict for purcliaso created 'by Wood's acceptance, and could refer to nothing else. Tho acceptance might have beon by parol or might have l>oe-n in'writing for all Joyce but Joyce by his. letters -recognised tho existence of a contract created

,'iy such acceptance, and adopted that contract. Parol evidence would'be admissible to connect the documents. Joyce, sent a cheque for a deposit to linrr.v before there was any agreement at all; ■ the timo for payment of a deposit on a contract did not arise until there was a contract. Barry hold the money as'agent for Joyce, the purchaser. His duty to Joyco was to hold the monoy 011 behalf of Joyco until Wood-Lad entered into an agreement to sell, and then to hand it over to Wood Joy credit Wood with it. In the ordinary course of his business as a land agent, Barry would obtain a writing from Wood. It would have been a serious dereliction of duty on his part if ho bad not dono so. His Honour thought, therefore, it was made out: that the reference in Joyce's subsequent letters could only bo to a binding contract constituted by Wood's acceptance, that such acceptance must liavo been, and was, in writing, and that such writing may thus bo connected .with tho letters subsequently signed by Joyce. That being so, there was, in his opinion, a sufficient memorandum'to satisfy tho" Statute. Tho objection on the ground of tho indefinitenoss of timo during which tho amount was to . remain on mortgage was' untenable. " Tho rcferenco was evidently to tho terms of the : existing mortgage, the duration of which the parties wore not quite certain of. .- It was his opinion that :thp ..appeal should bo dismissed. . ■ 'The'ot-licr members of tho Court concurred in tho'judgment.-■ Tho '.apnea! was therefore dismissed, with cost* on the middle scale as from a distance. Mr. Skcn-ett, K.C.'. (with him Mr.-John-ston) app*.wd on behalf of the appellant, anjl Mr., Bell, K.C. (with. Jam Mr. Fitzhcroprt),'for respondent. '-. 1