LAW REPORTS.

Dominion, Volume 2, Issue 530, 10 June 1909, Page 9

LAW REPORTS.

SUPREME COURT.

CLAIM ACAIM9T A HQUSS-BUH.DER

THE HATAITAI DISPTJTE. .Theioase in which Harold J. D, Duttoni 'builder "and contractor, claimed 'from Annie ; Breen and hor husband, E. I*. Broon (mauM engineer), the sum of £288 6s. Id., alleged to bo duo as balance op a building contract, .was continued before' Mr. Justice oini.jn the oupromo Court yesterday, Mr. Dunn appeared for plaintiff, and Mr.. Blair for the defend, ants. „ V The houoo w»> a six-roomed one at Hataitai, and after work on it,had boon finished, plaintiff himself lived in it in order (as he contended) to protect (limself, as to w balance of the money claimed. Aftor ho nan vacated the housß, and while it was still uuoccupied, it was destroyed by Are. Plaint! tf. s ; caao. was that the building ;had . been completed in January, last, and, oven if it wero not an entire cont had waived • their rights; because they had made an offer, not without prejudice, of £100, and they were \ ©stopped from alleging that no money was payable' Sunder tho contract. :. f. Mr. Blair made application for nonsuit on the grounds that: (1) upon the. plaintiff 9 case tho contract was an entire contract; (2) plaintiff must, show that ho, nscl absolutely completed ;he contract before he had any right to recover; (3) the premises hav-. ing been destroyed by firo before completion, • eitW'put plaintiff in. the position of having to complete the contract, or discharged both ' parties 'from the contracts The building was incbmplote, in hat it-had only two chimneys instead of threo, and these were built without regard for the plans and specifications. iThe plaintiff admitted that the painting was ' not properly dono, . and tho defendant was not " prepared to prov&. that the wallpapers selected woro tho papers used. .... ..■■■■ , i His Honour intimated that lio was not • prepared to dispone of the case without hearing evidence. •- ii- ■, . v : ~ , , t - Oswald Beere, solicitor, stated that he had ' previously acted for the, defendants, whoso • defence had been that tho contract was a bogus one, ; ' ■ , ~ fialph Fergus ; Dnimmond, corporation building inspector, produced the applications for a building permit in connection with th? Annie Breen. ono of tho defendants, Btatcd ' that the To-called contract, produced before Mr. Odlin, was declared by him to be of no value, because it was not stamped. The wallpapers in ;the kitchen, the front pall|, and tho drawing-room were not those. sne had 'selected; and different friezes were used. On one occasion Button said to her_ that ho would not give them'possession of the house : until tho»amount, was. paid, if- any att tempt to toko possession wore made ho wouM shoot. Sho replied: "Don't be silly, Mr. Dutton." . ~ , TJndor . cross-oxumination) witness that she anticipatcd no difficulty -m finding ' : the money for the house. ;', . ... •: Mr. Dunn: Is it not a faot that your .forniture was seized; undor a bill of sale and sold?— Witness: Never. Tho witness added that aho was in tho hospital at the time, and as Dutton would not allow tho furniture to bo put in, they had deemed it beat to sell it. Mr. Punns What money had you when tho contrast was Ist to pay for the contract and;discharge the ! mortgage ? ■. Had sou. any : , money At all f—lt had nothing to do with "is it, riot' a fact'.that you or your husband tyuj' nqt ft singlo 1 pepuy at tho tipjei—« might have, been." v Did you not owo Clyde.Court Boardinghouse £Q fgy-board heforo you loft there ?•- I,did not owo then} anything,.- • ' .:. The other defeijdlant,,.Edward Peter Breen, Btatod that PTfjop Ppecincv ' tions,' and tendom:,were'advertised for- -: l«e '■■■■ speoinoations were condemned.by several contractors, and qther ; j werMr&mcd by one VSTriok. was. for £720, 'but ho said that a mistake had been made, and one for £885 was ; substituted, i piped;,' VDvvyer • .and Dutton.'! Dwyer and ho went into the, tenders which were tetiirnedi ,unawep ted, ; and' DwyOr proposed doing the work by day labour. Dwyer obtained tho. prices of timber, Odlin's quotation being "the cheapest,' > and tho eatimat«d : cost arrived -at between' Dwyor and!him-was txjtween £500 and £600. SuhsoqiiontljrDwyoy announced that ho had sent to Sydney for Dutton to give him a job on the building, . \Ylion it came to tho pur- : chase of tho timber Dwyor said that a' builder ' would get better: discount than he could. He wanted £2 from' witness to put Dutton . into ;the Bnildors'.i'Association, so that he ■ could got the trade,'discount. Dwyor waß to get 125., and Dutton lis., per day. A ' day . or two aftor/ beginning work, Dwyer said, "Give Duttoia another 'shilling, ho'a worth it p besides, by getting 'tho timber ■ in his name, you will e,ivo it in discount.'' The extrif-shilling ; was allowed, Afterya■week's work, Dwyer. put 'Wilkinson and Dut. ton off, on witness's instructions, but thoy - wore re-engaged in three days' time. The ■i ■ foundations were laid' by day, labour. Wit- , Bess'endeavoured ti-obtain: £100 from the Advances-to; Settlers Department, and also i tried -to raise a loun from; relatives. Pre- ". viously ho had borrowed JSJQO from Messrs. Moprhouse and Hadfield, . Dwyer received his own wages, with those to .be , paid to j •. Dutton and tho excavators. As tho result I of an interview .with Mr. Odlin,. a loan of i £550 was arranged (in the section and house, i One day Dutton asked witness'" to write out a contract to show .Mr. Odlin. Dutton said, "Put anything down, but I told him I had a contract for #83!ji, aRd jf you don't; say that you make a liar of me." The contract waa signed,, and Dutton. took it. As he left, he said, "1-.will give you this as soon as Mr.. Odlin seps it. 1 ' Tho £550 loan, ar- . rangedvwith Messrs:. Bell, Gnlly,' Bell, and • , Myers, - was made payable to Mr. : Odlin. Asked; subsequently .For the contract, Dutton replied," "You have made the monoy payable ' through Mr, Odlin, arid that will bo a nail in ■ your >r" coffiji,'.' i Witness, told Dwyer of j this,' 'and said ho would oancel tha !. contraot, and Dwyer replied, "Take no notice r. of him i he's mad." rWhen witness explained f to D.utton . what alterations .ho required , done, Dutton ■■ Tppliod ■. that he would rjoi give up possession, , until he had , receivet dSqpp.. " ;

Mr, <■ Dunn t About two ■ months ago you wore convicted of.-' assaulting Mr. Dutton, woro you uotP'-,Yes. ; : i • • ■ ■■■■/■■ And you were fined . -You, tried to. prove that there was no'asgault, but/wero convictcd?—Yes, because you had ono or two;bogus witnesses. 1 v Continuing, wltnoai.eaid that when struck on the side of the head with a hammer by Button,- he said he would cancel tho con. tract. ■ Mr/Dunn: What contract f—fitness; The bogus contraot. Afterdetailing;, 'otherunpleasantnesses, ■witness.said that,,on one occasion, Dutton wanted £20 from himi "to clear up country." i The fire took placo on April 3 or 4, and a fortnight later Dwyer went to Sydney. The insurance company would not pay .the costs of- th(V proceedings. He would have to, meet them himself. Evidonce was given bv Charles o,' Odlin and , Arthur George - Wilkinson (who drew tho plans). The latfiervstatod that he had •p sub-contract from Dutton for tho paint- ; ing, which was done fairly well. Dutton re- ; marked , when the .work;.'was-beginning, "You can. use whiting if you liko"; however, white lead was used. Every cfEort had been made to match tho wall palters. The : ease was adjournod until to-morrow •morning.' ' ■■■

MAGISTRATE'S COURT. ■■ ■ f(Bffor® Mr. Riddell, S.M.) ALLEGED STABBING AFFRAY. ACCUSED COMMITTED FOR TRIAL. Of weak and haggard appearance. Peter Williamson. U'ajt stepped ;mto th«: doofc'to .answer a cliargo that; on.. May ,28, at Wellington, ho wilfully, assaulted David M'Call intent to cause actual bodily harm, and a second charge of Assaulting Hartha Munday. ■■ Sub-Inspeotor Phair appeared for the prosecution, and Mr. A. Xi. Hcrdman defended accused. It was arrpflgiid that , the twp: charges should be heard together. ■ ' , : The first v;i£nes(i \vn.s David M Call, driver, living at 81 Kent ; TcrraM—p, boardinghouse koqra as "Talofa." :At about ,8.15 p.m. on

May 28, he. went up to accused's room. There a little difference concerning a letter ivluch accused had givon witness for delivery at the Government Life Insurance Office. After ail altercation, witness went downstairs to the kitchen, where Miss Mundy, the , proprietress, was. Tait came down'also, and went into the street, where witness followed him and told him that ho had better,come hack and prove what he hail said. Thoy come back into tho hall together and commenced .to argue. Miss Munday carno out, and after asking them to bo quiet, came in between them awl tried to separate thein. Accused M Call a certain name, and. kept on repeating it, whereat witness lost his temper and hit accused about the face. The next thing he knew : was that his head Itas being punched, and lie was bleeding freely.;. He began, to get dazed by tn< loss of blood, and then felt three or four more blows pear the hefirt and elsewhere, no was cut in several places, and blood'was coming from all the wounds. Ho went out to Miss Munday and said: " Vve been stabbed. • Witness had not seen any -instrument in accused s hand, with' whioh the. wounds m'ght have bwn inflicted. Dr. Gilray tent him to the hospital, whero'iie remained- for eleven days. Accused ,was' under the influence of liquor, but was'not- exactly drunk. To MrV Herduian: Witness had gone to accused's room: he had subsequently ceuicu accused liack trom tho street, imd later he had struck at accused. . Martha Munday, proprietress of the boardinghouse, in the course of corroborative evidence stated that when the men came back from the street they went into the diningroom and accused rushed at M Call, iand. Wdeavonred to strike him - with a stiok. "hen both of them fell struggling on the couch, accused'being underneath. Witness endeavouied to separate them, but ..she. received" a which compelled her to desist. She went out into the passage, and : a little while after M'Call oarne out saying that, lie had been stabbed. She. noticed that M'Call's face was bloedjng, .Then' the, constable came to the house and arrested accused. .. Dr. Thos. Gilray, in evidence, said that there Wo si* scalp , and face wounds, two on the -left side, and two on the groin. The wound on Miss Munday's leg necessitated « stitch being put in It. . ... , - ■ Tp Mr. Herdman: $0110 pf -tj»« wounds was of all dangerous. „. , „ .... Dr. Foster, surgeon at Wellington Hospital, also described the position pnd, the, number of tlio wounds, .and added that they were all liable to bo dangerous. : ' . V ■ ■ Cross-examined ■by : Mr. Herdman, . .witness said that he did not leee the wounds before they, were stitched up, and said , they were liable to be dangerous only because of the I position. . ' ; Constable Carmody gave evidence, as to arresting accused. He went to the house and followed accused up to his room. There he asked him for the knifo, and when Tait did not produce it he searched and found it on the table, opan. ■ 1 ' - , Acling-Dctectivo Abbott was. also .called for tho prosecution,; - ; Accuscd pleaded not guilty,. and was com- ! mitted to tho Supreme Conrt for trial,' bail ■being fi*ed at w650 iaad two sureties of J250 each. ; - ; ;v

STREET BETTING.

THE PROSECUTION SUCCEEDS. A judgment of s6me interest >na defining the scope .of the Gaming; and 'Lotteries -Aot was delivered bj* Mr. W* Ci. Riildcll, S.M., in the case Police v./ Hap. Ham was charged with that, on April 20, ho used Willis Street for the purpose of bookmaking, contrary to subsection 55 of Section-11 of, the Wellington City Bylaws, 1909. . i ' The SYidenco against defendant was that ho was seen, on April 29, in Willis Street, in tho vicinity pf the Empire Hotel, on tho morning and again in the afternoon, op which dato there was a race meeting at Palmerstqn Norths that,, during the.hours referred to, he handed race-cards' to several perso&s; tKnt, oti a nunibey of occasions ho received from different peiv' sons something, Which lie put into his pocket; that, after epejiking with these or Some other persons, he niiitlp ; pi)triep in a notebook; that, on one,occasion,:he gave a man some'money; that he and his father, a 'bookmaker, were seen consulting a: raco*card. . "A, bookmaker,"'- said his 'Worship, in, Kis judgment, "is defined in the Gaining' Act; 1308,-as apy person who sets or' carries ' on' business ;as a bookmaker or turf commission'agent. . . . .The by-law does not confine itself to bookmakers a? defined in

the, statute, but extends' tq any, person l .who acts in euoti. a .way as to come within its scope," * Evidence was not given/by defendant, but 'several .witnesses wlio were called 'etatfid that they had worked for him as coalman on different occasions,,and,h«d, borrowed small Bums"of : moliey;';ivhlch: they'usually repaid in Willis Street. _ Their evidence .wafl- not conoluaive.,. . Detective Cassella had siforn-that,defendant was a bookmaker, and, though he might be engaged in another business, in the fate of his actions 6n April. 29 it was not proved that he was not engaged also in bookmaking. | Hig Worship quoted hyo cases, Conrad v. Johnson, 22 N.Z., L.R. 7M, where a conviction'was entered, the only difference in the ovidenee being that, in the case cited the defendant acknowledged that he was a book-, maker, while here evidence was brought to 6how that he fallowed another occupation as well i and Dnnning y. Swcetman, whore dofendant wns cohvicjeu on appeal, his offenoe being the distribution) ot handbills in Togard to betHis Worship entered a conviction and fine of *S3, and costs 135., in default sevon days' imprisonment, I ,'': Mr. H'Grath appeared for: defendant. ' ■

! ALLEGED/FALSE -PRETENCES AND . j FORGERY, ' Charges preferred ''against ; Stephen : Kolze, , &lias' Blaokstirae,' described as'', an 'insurance ■■ agent;; numbered six. l ' The first w<m> . that, on ' June 1, he 4id obtain from one Mary Lawson tho sum of.il by pieans of-a certain fplso pro< tcnco with,' intent ,to defraud. Four of . the :■ other charges were of & similar nature—viz., obtaining. JBl: by false pretences 'from Mary White on June 1, from J. B. Mowbray on May 29, from Rebecca Rosen on May' 29, and from 'fhos,:. Costello oji June 5.' The sixth charge ,w(is that of forging, on May 27, the namo of Joseph Chariton to a form of application and receipt'for orish'Vftlue of bongs 'accrued, op: policy No. 7379, issued by "the Government Life Insurance 'Department : on' the v life .of Joseph > Charlton; -••• :• •' ■ '; ' Aoeuacd, whp was represented by Mr. 'Jack, son, pleaded not guilty, and was remanded .tq Ju'ne : l6,'biul being fixed, self in 380 and, two ; sureties «f #0 each. ■ , , TRESPASSING. QN A RACECOURSE, Alfred Famll, charged on remand with trespassing .on Treutham Racecourse and refusing to leave, after-shaving been warned, to do §o,' was convicted and.fined,J2l and.costs (X 8 145.). ,'Ur. Bell appeared for the proseoutjqn and Mr. Jackson defended. - . ' OTIIER CASES. Three first offenders for drunkenness were dealt with, one fomale who failed to appear being fined 10s., or-21 hours' imprisonment, one male 'remanded to Juno 16 for medical t treatment, and another male fined 5s.V or 24' hours, Flora M'DonaW, ivho had two, former oifences 'against her, was. fined 205., in default seven days' imprisonment. . . Lot importuning, Elizabeth Black, ahas Grant; .Jims:,freeman, was .'sentenced to one month's imprisonment. _ _ ■ ' Two charges were preferred against Thomas O'Briin. On the first—one of drunkenness-rhe wjs fined 10s., with the alternative of 21 hours in gaol, .and on the second—using obscene language—fee was fined <£5, or 21 days' imprisonment. CIVIL BUSINESS, (Beforo Dr. A. M'Arthnr, S.M.) . - . Further evidence was, heard yesterday afternoon in the adjourned case Bertensl\aw and Evenson v. AVm- Traill,: a claim for J25, commission alleged to be due on account; of the .purchase of the Tauherenikau. Hotel, said to. have' heen arranged by plaintiff, His Worship reserved judgment till June 15. MOUNT COOK POLICE COURT.' 'At tho Mount Cook rolico Court, yesterday, '■ before Thomas: Bland, J.P., Charles Hernon, charged with being drunk and disorderly, was Gped .CI, in default seven days' imprisonment. Jphn Collins, charged with insobriety, was fined 55., in default 21 hours' imprisonment.. Two first offenders for drunkenness were convicted and discharged. . . ;