MAGISTRATE'S COURT.

Dominion, Volume 1, Issue 228, 19 June 1908, Page 4

MAGISTRATE'S COURT.

1 POLICE : OASES. (Before Mr. W. 6. Riddell, S.M,) Two youths, Albert Lenry and Edward Wilton, were charged, with having, on Juno 17, stolen a quantity / of lend and copper, the property of tho New Zealand Government. Leary pleaded guilty, and was remanded ujltil Juno 22 for sentence. Wilton pleaded not guilty, and was remanded until June 22, bail being allowed in tho sum of £10 and two sureties of £5 each. It. wiib alleged by the polico that tho youths wero seen taking the goods away from tho old Post Offico building, which was- destroyed by lire recently. For insobriety, Barney Fenwick was convicted and fined 10si," in-default forty-eight hours' imprisonment." One first offender was convicted and discharged. CIYIL BUSINESS. (Beforo Dr. A. M'Artliur, S.M.) ! UNDEFENDED CASES. Judgment for plaintiff by default of defendant: was entered in tho following cases :— Bridget'O'Neill w Richard Carroll, £17 10s., costs £1 lps.-Gd.'; ' Morris Fruhauf v. Hugh Urquhart,-i£6," costs £r ss. 6d. j Commercial Agenoy, Limited, and the New Eatoii Grant and Co., Ltd., v.' Johanna Tait, £18 9s. 9d., costs £2 os. Cel.; Harry Vincent Westbury v. Niel Connoll, £7 125., costs £1 3s. 6d.James Smith and Sons'v. Alfred Edward Pilbrow, £4 9s. 5d., costs 55.; Edward Anderson and Co., Ltd., v. Edward Robert Issell,-costs only 12s. j- Heim and Co., Ltd., 'v.,.Wi Ncora Parata, £4 15s. 7d., costs £1; H. C. 'Gibbons and Co. v. Arthur J. Wicks, 155.; ■ the Drapory and General Importing Company of New Zealand, Limited, v. Florence. Hook, £1 15s. 5d., costs ss'.; tho samo v. Henry Everest,; £2 10s. ,7d., costs £1 25.; Charles Burton ' Btixtlin' 1 v.'' Harvey' Dunda's, £7 125., costs £1 3s. Gd.; 11. C. Gibbons and Co. v. Donald M'Kcnzic, £1 10s., costs ss.' ' ' ' 1 JUDGMENT SUMMONSES. Reginald Wolsby was - ordered to pay to Allan Vincent Knapp' the sum of £28 Bs., on or before; July 2, in default ono month's imprisonment. ; :.' • In tho case of Rosina "Rosema Ingrain v. William'J. Jamibson, a .debt of £6.45. 3d., debtor was '"to'.pay on or before July 2, ill 'default seven days' imprisonment. i 1 LAW OF CONTRACT. , AN INTERESTING JUDGMENT. Reserved judgment was given by Dr. A. M'Artliur, S.M., in the case James M'Mahon (Mr. Young)-v. Jesse Coulson (Mr. Wilford). Plaintiff set: out that ho assigned -to deunder deed dated January IG, 1908, all this interest in a lesso of four acres of land, being ;paft of section 56, Hutt District, tho consideration being £250, of which £175 was paid in cash, defendant covenanting to pay tho balance on May 14, 1903. It was further stated that defendant /had not; paid tho sum of; £75, .though requested to do sOj whereforo plaintiff claimed that amoiirit. Tho leasoj'was assigned' on - January 16, defendant having moved into tho premises, a refreshment room and small farm, on Jbiiuary 10. - Tho, defence allegod that fraudulent representations wero mado by plaintiff or his wife, who,, acted for. him, and that by reason of snob representations defendant ■ was induced £oWinter"into' tho contract. The misrepresentations were alleged to bo in reference to wliat tho business was that had been done, or could be done. Defendant made no complaint about the contract for about three months, a3, ho said, lio wanted togive tho.place a. good trial. His wifo, who was in Sydney. : atthe time of the p'ui> chase,, did not joift him: for; - about three weeks;, but beforo she left that city-.defend-ant hpd written to her, and told lier how ho had been '-'taken in,-" arid that he had mado a mistake in -paying so ..much for tho goodwill. Speaking generally, said the Court, in order' to- entitle a person' to rescind a contract, it' was .sufficient to showthat thero- Ms V fraudulent representation as to. any part of that which induced a porson to enter into .the contract. \ A representation was mado fraudulently when it was made knowingly 4 or without bolief in its truth, or recklessly without caring whether was true or false, and suppression of the . truth, as much as misrepresentation .of .a- material fact, would vitiate any.,, contract, the _ validity of which was mado. Anyone intending to repudiate a contract on the ground of fraud must do so as soon as the fraud was discovered, for if, after the discovery .of,the. fraud, the person treated tho contract as subsisting, or if, in consoquonce of his dolay..,tho position even of .the wrongdoer was affected, he would bo deemed to . havo waived his rightof repudiation, and must then bring an action for damages for the deceit. Tho right of repudiation of a contract on the ground of fraud did not -prevail where a man by his own act had put it out of his power, to place tho parties in tho same position they""wore in at tho time the contract was mado. After quoting authorities on this question' at length, His Worship stated that ho did not now decido whothor there was. any fraudulent representation or not-. Even' assuming, however, that thero was, defondant know the position shortly after ho entered iiito, : possession, as . was shown by the'evidence of his wife, who ;stated that lie wrote to her about it beforo "she left Sydney. It was then hi 3 duty, if lip. wished to xepudiato the contract, to have :dorte so at onco by communicating with plaintiff, and not to havo delayed until such timo , as his final paymont was almost duo. By his dolay ho had, in tho,opinion of tho Court, affirmed tho contract, '' And'the parties could not now be placed in''their original position. Whatovor remedy, if. .'any, lie might bo entitled to, ho could not .now repudiate tho contract. Judgmont. would, bo for plaintiff for tho ; amount'claimed, and costs £6 Is. ; A BRICK WALL. ■ Dr:. A.'M Arthur, S.M., gave his reserved decision in the caso of Jorgenson Bros, and .Joiiann (MX. Webb) v; E. J. Falkiner (Mr. Weston). Judgmont had been given for plaintiffs'in this case, and on appeal to tho Supremo; Court,beforo. Mr. Justice Cooper, it was adjudged' that a, now trial is ordered under Section 126 of the Act of tho .counterclaim upon terms that -the judgment for £16 105..., in tho nction'"reniain unaffected by t-hei.H new atrial, but . no . execution was to bo issued on: jiidgriient until, the countor-claim had' been'tried' and determined. Tho Magistrate on'?sudi .new. trial was to detormino whothor tho undertook to build a wall fit to sustain the superincumbent weight abovo their land._ If tho Magistrate founs that the Undertaking was limited, as respondoijts-say it was, to. a wall fit to pustain weight up to-its own level, then the Magistrate was to -'determine whothor tho wall constructed by tho respondents was properly constructed in accordance with that undertaking and' tho : specifications. If it was, the Magistrate was to give judgment for respondents; if not, then tho Magistrate was to: assess what damages appellant was erititlod to recover under counter-claim. His Worship remarked that thero was nothing said 'in tno contract as to what weight tho wall was to sustain, but he considored it was intended to sustain tho weight of filling in, up to; but. not above, its own lovel. In tho opinion of tho Court tho weight of evidence showed that tho - wall was not constructed .'in accordanco with the eontraot which was "to build a new and proper wall." There woro many defects in the construction of tho wall, as pointed out by tho oxpert witnesses, and thoj.wall gave indications of falling beforo the filling had reached its level. In tfyo absenco of any special provision in the contract the measuro of damages for incomplete or defective performance is what it would havo cost to rectify the defects or omissions at tho dato when they might havo been discovered. "The wall is evidontly useless : to the'defendant, and will have to bo rebuilt," continued His .Worship, "and ho lias also lost considerably by tho delay which hns taken placo through the defective work," ' The Couit considered de-

fondant was entitled to tho return of tho contract money, and to tho sum lie had paid fflr filling. Judgment would bo for defendant 011 tho counter-claim for £77 10s., and costs £12 lis. ALLEGED WRONGFUL DISMISSAL. (Before Dr. A. M'Artliur, S.M.) .Further progress was made with tho caso Walter Gcorgo Taylor v. the New Zealand Fruit and Produce Company, adjourned from Tuesday, a claim for £187 12s. damages for alleged wrongful dismissal. Robert William Shallcrass,' a director and late secretary of tho Fruit Company, stated that in July last ho suggested to Taylor that he should tako his (witness's) placo as secretary of tho company, ns witness would be leaving for Home. Taylor said ho would favourably consider the proposal. Witness placed the matter before tho directors of.thd company, and subsequently on July 31 witness wrote to plaintiff offering him tho position at a salary of £250 on tho understanding that hfi should tako up COO of tho unallotted shares of the company. Plaintiff replied by telegram from Auckland stating that thero bo some dolay in fixing up his lato busmoss, and ho would not liko to liavo to guarantoo to tako up tho shares at once. In reply, witness telegraphed to plaintiff in roferoneo to the matter, and concluded .by staging that no guarantee would bo asked, meaning as to the taking up of tho_ shares. In February Inst Taylor commenced his duties and witness left. At tho end of April a meeting of directors was held, and tho question of Taylor taking- up shares was raisedi As far as witness knew Taylor never refused to tako up shares at this meeting. Ho had money deposited with tho company. On May 4 Taylor was asked if ho was agrceablo to take up tho shares in a week, and ho replied "No," adding that he i was only willing to carry out tho conditions of his engagement. Tho board of directors then determined to terminato tho engagement on one month's 'notice. Witness was ono of tho largest shareholders in tho company, and tho business was increased hy Taylor on lines that witness approved. Later tho directors passed a resolution offering to tako Taylor back. . 'Mr. Herdmnn stated that the defence was twofold. In tho first placo tho agreement providing for plaintiff's engagement, ho contended, contained terms which, having been broken by plaintiff, justified tho hoard of directors in tho action tlioy took. Secondly, on tho statements made hy plaintiff and his witnesses, ho was entitled to no damages. ;Robert William Burbidge, a director of tho New Zealand Fruit Company, stated that tho directors stipulated that Taylor should take scares in the company as part of his engagement. In April witness put a qnostion to Tnylor ns to taking up shares, asking him when ho was going to fulfil his contract, and ho said ho would tako up the shares when tl)o company was in a financial position. Taylor should havo known tho company was then in a sound position financially. At a meeting held tho following week witness, as chairman, asked Taylor if ho was , prepared to tako up tho 500 shares in ono week. Taylor said " No," and witness troated it as a refusal on the part of Taylor. After tho meeting tho letter terminating tho engagement was written. At this stage, tho caso wa3 further adjourned until Friday nest. i OTHER CASES. (Before Dr. A. M'Artliur, S.M.) John Pochard Randorson (Mr. Von Haast) 6ued. William Farquhar Eggors, house agent (Mr. Herdman), for £16 Gs. 9d. damages alleged to havo been caused through negligence on tho part of defendant in lotting two of . plaintiff's houses without making proper inquiry as to tho antecedents of tho persons to whom tho houses had been let.; . Defendant stated that ho made duo inquiry beforo'tho people wore let into tho houses. His Worship reserved his dcoision. Patrick O'Halloran and Arthur Richmond Atkinson sued Wm. Tyson for possession of chattels or £36. Tho chattels consisted of a cart, horso, and harness, but tho evid-. once showed that tho horso had died. Judgment was given lor plaiptiff for the .amount (claimed; 1 , and . costs'' £4 45., on>, tile l undor'standiiig that tho sum should bo reduced to £15, wjth tho return of tils cart , and harness, 'on or beforo June I 'ID. ' (Before Mr. W. G. Riddell, S.M.) , Jansen Brothers sued George Henry Yates for £4 os. 10d. for groceries supplied.'. His Worship gave judgment for plaintiff for tho amount claimed, and costs £1 12s. Mr. Jackson auneared for plaintiff. Robert Gilkes, butcher, claimed £1 Bs. lOd. from Hans M. Peterson for meat supplied. Judgmont was given for tho amount claimed, and costs Bs. Mr. Jackson appeared for plaintiff. Jacob Domb, tailor, sued Don M'Kay, tailor and pressor, for £3 dnmagos, in lieu of ono woek's notice, and bis Worship gavo judgment for plaintiff for £2. Mr. O'Regan appeared for tho defence. Mrs. Mary Jane Williams (Mr. Dix) sued S. Innes (Mr. P. Jackson) for £27 15s. sd. damages, etc., alleged to have been done to tlio_ contonts of • furnish ad houso owned by. plaintiff, and leased to defendant. for nyoar. After a partial' hearing' tho caso was adjourned until Tuesday.