MAGISTRATE'S COURT.

Dominion, Volume 1, Issue 303, 16 September 1908, Page 10

MAGISTRATE'S COURT.

POLICE CASES. (Before Mr. W. G. Riddcll, S.M.) A man-o'-warsman, named Win. Wright pleaded guilty to a charge of having, on September 14, unlawfully absented himself without leave from H.M.S. Encounter. Accused was convictcd and remanded to gaol, to bo placcd on board his vessel at the earliest opportunity. • Two first offenders for drunkenness were dealt with. One, who failed to appear, was convicted and fined 10s., and the other was convicted and fined os. The default was fixed at 24 hours' imprisonment in each case. CIVIL BUSINESS. (Before Dr. A. M'Arthur, S.M.) . UNDEFENDED CASES. Judgment was entered for plaintiff by. default of defendant in the folowing civil cases:—l?. and E. Tingey and Co. v. Amos Mudgway, £2 2s. '3d., costs 135.; Sir Kenneth Douglas v. Arthur Joseph Wicks, £12, costs £1 12s. 6d.; Middleton and Smith v. A. G. Mortensen, £8 45., costs 18s. Gd.; Batos and Lees v. Richard C. Carroll, £4, costs 10s.; Emily .Richmond v. Lucy Tinney, £5 Is. 3d., costs £1 3s. Gd ; T. and AV. Young v. Wm. Hall, £64 lis. 3d., costs £4 25.; Gear Meat Preserving and Freezing Company of New Zealand, Limited, v. Arthur Styles, £5 os. Bd., costs £1 us. 6d.; H.M. the King v. Wm. Aubrey, £5 9s. 9d., costs £1 3s. 6d.; W. and G. Turnbull and Co. v. H. Smith and Son, £7 9s. 2d., costs £1 13s. _ Gd.; "New Zealand Times" Company Limited, v. John Trimmer, £5 55., costs £1 3s. 6d.; Palmer Engineering Company, Ltd., v. Smart Bros., 125., costs only; Elias John Forbes v. Walter Jackson, £2 10s., costs 10s.; D. Benjamin and Company v. Toomath and Brourie, £32 16s. Id., costs £1. 35.; Win. Hutchings v. John W. Simpson, £1 3s. 6d., costs ss. . JUDGMENT SUMMONSES. In the judgment summons case John H. Barr v. Ernest Panting, a debt of £1 17s. 6d., debtor was ordered to pay on or before September 29, in default two days' imprisonment. In the case, Jas. Smith, and Sons v. Peter Carrig, a debt of £3 lis. Id., debtor was ordered ,to pay on or be'foro September 29, in default three days' imprisonment. . RESERVED JUDGMENTS.' . A BROOKLYN BUILDING CRITICISED. Reserved judgment was given by Dr. A. M'Arthur, S.M., iii the case. Geo. E. Odlin (Mr. J. J. M'Grath) v. Maurice O'Sullivan and Alice O'Sullivan (Mr. Luckie). Plaintiff, in.two actions, claimed to recover ,the sum" of £65 19s. Gd. as follows:—February 19; 1908 —To five quarters' interest on. balance of purchase money for house at Brighton Terrace, Brooklyn (£525 at 6 per cent.), £39 75.: 6d.; five quarterly instalments of purchase money at £5, £25; insurance premium, £1 ~l2s_; total, £65 I9s. 6d. In tho alternative plaintiff claimed to recovor from defendants the sum of £65 19s. 6d. for their use and occupation of the house from December 9, 1906, to March 19,- 1908. Plaintiff" further claimed _ £29 16s. instalments of purchase money, interest, and additions to house; and in the alternative the same sum for the uso and occupation of the house from May 19, 1906, to December 15, 1906. Defendants counter-claimed to recover from plaintiff the sum of _£50, by reason of', the house being smaller in size' than originally provided for and agreed upon; and the sum of £100 by reason of alleged faulty construction of the house and the use of unfit, inferior, and unsuitable materials in connection therewith; and £25_geiifiral.. His 1 Worship said the action presented a double dose.; of 'difficulties*, fOi'' ! iiot' only was plaintiff his own architect, but he .was a. son-in-law of one of the parties. It was admitted that the . sums, .stated in . tho state-' ment of claim were correct, and 'were due a,nd owing. This left the Court to-consider only tho counter-claim. Defendants alleged that plaintiff agreed to erect, the house in' accordance with tho plans and specifications, which he failed to do, but built it in a negligent and unskilful manner. .They also alleged that tho timber used was entirely un-fit-and of inferior ■ and unsuitable condition, that the house / was not of .the size agreed upon, and that the whole building had been erected, in a faulty and defective manner. His' Worship said he was quite prepared to expect that, the houso was cheap •and a second-class job, but expected to find it a fair job of its class. , Defendants went into, the house before it was completed, ■ and it was contended that they knew a.U that.was (lone, and that they virtually - accepted the job as completed. "But," said his' Worship, "it must be remembered that-the iise or occupation of a building which' has . been partially erected, even though for the purpose for which it was intended, was' not an acceptance, of the work or any part thereof, nor a waiver of defects, so as to preclude the employer from objecting that, the contract had not been fully performed. •' A knowledge of the defects as well as acceptance of the work with all faults must be madtf.to appear; Acceptance did: not prevent the owner from showing that the work was incomplete or. badly done, or from counterclaiming in an action by tho builder. In : many cases the extent to which the vo.luo of works might be diminished, by defect in their execution might be altogether incapable of discovery until some time after the work had been completed. The owner might also, after paying for -the work .done, and without counter-claiming, bring an independent action for breach of contract. The evidence of Mr. Clero, architect, was sufficient to show the nature of tho contract. Hp said, 'Tho work was not in accordance with the plans—l would say there was hardly a tradesman on tho job. Tho timber was a job lot—rough workmanship; no finish. I would condemn even on the specifications. Most of tho timber was reject.' " Tho whole of his evidence, said his Worship, was similar. Another witness, Mr. - Mitchell,' went into more detail, 1 but-ono statement of his the Court considered would : suffice"The house _ is defective in workmanship, and material. I havo not seen - a worse example of- jerry-building." , His Worship said plaintiff had the plans, the specifications, and tho building all in his own hands, and it appeared from the plans and specifications that he could do very much as he liked, and' he. did so. The house was evidently of an exceedingly poor class, both as to tho material and., the workmanship. It was not easy to ascertain tlio amount of damage in such cases as the present. The. measure' .of .damages should be such as to enable defendants to put tho house into the condition in which it ought to have been when built by plaintiff. His Worship did not consider that £60 would , do more than put. it in the condition in which plaintiff should have left it. Judgment would bo for plaintiff for £95 15s. 6d. on tho claim, and for defendants for £60 on the counter-claim. Plaintiff was . allowed costs £9. 12s. Gd., and defendant was allowed costs £4. . ' A COLLISION CASE. His Worshjp also delivered judgment in the case William H. Saunders (Mr. Wilford) v. E. Feist (Mr. M'Grath), which had been hoard at tlio Lower Hutt. According to plaintiff, on May 26, 1908, an employee of defendant, named' Alexander, whilst in tho actual service of defendant, so negligently and carelessly rodo a horse belonging to defendant as to collide with a Raleigh cart driven by and belonging to plaintiff, whereby the c.art was damaged to the extent of £11 15s. at the least. Plaintiff claimed the sum of £11 15s. damages to the cart, and the further sum of £5 as general damages for tho loss of tho use of tlio cart,' in all £16 15s. . - , ■ Tho accident took place, his Worship/said, at 5.30 p.m., when it was dark. In his opinion, the weight of evidence went to show that plaintiff had both of his lamps alight when tho collision took nlnce. Plaintiff was proceeding towards the Taita, and defendant was proceeding southerly. Defendant was riding behind a cart belonging to Mr. Herman Lewis, and driven by one Thompson. Defendant had already passed Thompson on

mi road > had then coma to a walk, when • lnonipson passed him in turn. Thompson lias driving at a speed of about seven miles an hour, and defendant, or, more correctly, his servant put his horse, in a canter, and, coming lip to Thompson, turned to'the right to pass him. In so doing lie met the plain- ,■ and ran into tlio trap, thus causing damage by reason of tho trap overturning. The question was: Who was in fault? As already said, his Worship believed plaintiff's lamps were both alight. Also, it was evident that plaintiff s cart was struck while it was on tho correct side of the road. Alexander, defendant s servant, was on his wrong side of the road when .the collision took place. Both plaintiff and Thompson stated that Alexander was on his wrong side cf the road, and that lie admitted it by excusing himself or the ground that he was passing Thompson, and therefore crossed over. Eis Worship based his judgment solely on ' the evidence as to-what took place at the accident, and altogether disregarded, what " had been said or done by either of the - parties or any of tho witnesses after the occurrence. There was 'gross perjury somewhere, but, fortunately, it did not affcct'the . incident itself. If a person took it upon himself to pass a vehicle in front of him he must exhibit great care in doing so. moro particularly if it was dark at tho'time. Ho must be carcful as to the vehicle ho was passing, and must keep a sharp lookout as to vehicles'coming in the opposite direction.' Evidently matters.were not'safe when Alexander attempted to pass Thompson, for in ~ doing so ho immediately saw 'tile plaintiff, '' but was unable to clear, him before they collided. His Worship could see nothing in tho way. of contributory negligence on the part of plaintiff, who appeared to havo been ' on his proper sido of'the road'both at and before the time of the accident.. Alexander was not, in the opinion of the Court, care-', ful when attempting to pass Thompson, and by his want of care caused the accident. Judgment would therefore be for plaintiff for £11 15s. for damage to the .cart, and £3 . general damages for loss of the use of. the cart, in all £14 155., and costs. v 'On tin application of Mr. M'Grath, ap peal was fixed tlio sum of £10. t

CLAIM FOR POSSESSION OF A. HEARSE.

Judgment was also delivered in the case Richard Wylio v. George Brocklehurst and Presence Brocklehurst, a claim for £30 advanced to James Brocklehurst or possession of a hearse, the'security-given for the'-loan. Defendants retained possession of the hear'se, and refused to give it up to plaintiff. -,i~ His Worship said he could not see on wtfat grounds defendants declined to givejaip possession' of tho hearse; There was no distress'and no rent.- Defendants wero ordered to givo up possession on or before September 16, or in default,- judgment for- plaintiff for £30. Mr. Blair appeared for plaintiff, and Mr. Wilford for defendant. • . CLAIM FOR RENT. Mrs. Agnes Flint (Mr. Brown) sued John Dockery, carpenter, Kilbirnie (Mr. Fair) for £2 6s. for two weeks'.rent. of.a house. Defendant counter-claimed for £4''l'ls. 6d., for alterations made by :him-'ih the : house. Plaintiff..'showed that sho';had.grantc'd permission to defendant to make-'-alterations to the house,'there being- afe'express-understanding, however, that she was not to pay for them. ' Judgment was entered for plaintiff, £2 6s. on the claim, with costs lis., and on the counter-claim, with costs £1 65.,