LAW REPORTS.

Dominion, Volume 2, Issue 546, 29 June 1909, Page 8

LAW REPORTS.

SUPREME COURT. QUESTION OF TIME IN CONTRACTS. A GAS INSTALLATION CASE. His.Honour Mr.! Justice Sim dolivored judgmcot m throe appeal cases yestorday. In tho appeal New Zealand Acetylene- Gss Lighting Co., Ltd. (Mr. Neavo), v. F. A. Pipfr (Mr, Find Jay), heard ou Thursday, June 11, iti'iad been alleged thai tho appcJlant agreed, to instat a gas plant in tho Tespondont's house at Wairoa-iti, but before tho installation was commonced respondent refused to allow the work to proceed Appellant then brought an action against tho resDondent for damages for breach of contract, and tho Magistrate gavo judgment in his favour ' His Honour said that tho Magistrate had found, as a fact, that ono of tho terms of tho contiact was that the installation was to Lo effected by tho appellant cither at tho end of March or early in April. This finding nas , justified on tho evidence. Tho question was whethor tho Magistrate was nght m treating this stipulation as being of tho essence of tho contract. Sinco tho passing of the Law Amendment Act, 1882, stipulations in contracts as to tirao whirh would not havo been, treated as being of tho essence of snch ' contracts in a Court of Fquity wero to 1 rocerre tho same construction in all Courts I This did not mako tho rules of equity on the | subject applicable to mercantile contracts, 1 and m such contracts stipulations as to time must still bo treated as essential conditions. It was admitted by Mr. Fmdlay that the contract in tno present case/could not be treated as a mercantile contract, and that tho stipulation as to tuno should bo construed according to tho principles acted on by Courts of Equity. It was open, then, for the Magistrate to conclude from all tho circumstances of the case- that tho stipulation as to time in. tho present case was of the essence of tho contract If tho question should be decided, as in this case- his Honour con- ' eidered it should bo, as ono of fact, them the decision of tho Magistrate on tho subject was final, unless ho misdirected himself as to the law bearing on tho matter. It had not been shown that thero had been any snch mis- , direction, and the Magistrate's decision on t!w point, therefore, was final The Magistrate had found also that there was unreasonable delay on tho part of tho appellant in commencing tho work, and thoro was evidence to support that finding Whero timo was of tho essence of the contract, a party who claimed 1 damages for breach of the contract must prove that he had been ready and willing to perform his pirt of the contract on the very day appointed for such performance. Tho appellant had failed, therefore, to establish that tho decision was erroneous in pomt of law, and tho appeal would bo dismissed nith costs (£5 55.) to tho respondent TRANSACTIONS IN RABBITS. A differonco between William Hurcomb, fishmonger, and his two partners, John Milcsi and Joseph Ingle, over the purchaso of rabbits (part of tho cargo of the steamer ' Turakina, which put bacL to Wellington in October, 1907, through fire) led to an action in the Magistrate's Court, in which tho respondents (who were originally plaintiffs) obtained judgment for £47 12s against tho delendant. An appeal against this decision was heard before his Honour Mr Justice Sim on Friday, JUno 18, Mr Hindmarsh appearing for appellant, and Mr. 0. Beoro for the respondents ;•-•'.■.,■ ;,i ■-.; In giving; judgnient "yesterday,' his.' Honour' Sγ--'said -th'at.'the of' the v ? v\/,Bee"mM.-to;.heye:,been'^ba3^ , \,y";''imade,-by;-the .defendant (Hurcomb), in;" evii-.;:.( donee, ■that : .he.would>settle if-a certain claim ;;{:,,'Jfor.j £50 -'charged Vfor; :bemin©; ; were '': Vfaived.. '■; appeared ; ( to : -have: deducted s; i; total ; cost /of 'preparing'Hhe v. jiviabbits' -(£l6O ':145.; 6d),Vand,; taking •aUjthp: ■; ?.';-.other: , ,figur'es;"in: theVatatcmont'of claim ;ae iii'i-'ii ehdaht':for the .■; whichj: onjjithese: '■;V-: : -'fi^rMr : .he";o^ed;-.nWr!partnwsV.'-f''i:This';iu'dg- i ■;.:■;' merit-'<»tild'ioi.-l)!9.';Bupported;V;'lt.-wae,pase4. /'K: on the,;number.^^or'.casos.sold/by'the defend--'Air'- antl being .I 60.; had been -proved,' however, •hearing,';,that, the "defendant did not- ;;; ?:'eellvso s : largo: a 'iHumber; of 'casesi: and; "in ~ "cases': . withj ;5 ; J .''.f:Which/:tlie defendant '■. should-.he : debited,' the J'Vi.'i'.Magistrate^was,;^^therefore,^^':wrong;-It ,was adf:fijihittedllilso^y>counsel -for:tho 'respondent, .■;'>-;.> that {..the -.;;■;■-*. judgmeht ;waa"!appareritly,'based' ,;:v;'«waß.not;so deftniteiasithe Magistrate's : note : that' ;i. ; : :;.-;the; : .defendant : made the •;admission;' as . li-

-.■'.f.fcbrded, -the justifiedin; i:::tftfeating-•'it;asVxiispe'nsing':' with"any further : '% ■■; "ought' 36; have : .y : ■by.dofefl'd-. \*rt ant's 'counsel:in connection;.with.,the.partner-: ";v;:;ehip Recounts,' and 'ascertained what; amountany);;was ; o™g'!by;the\defendant"to each' i'i; pf...hia.partners.-respectively.''. If..he. did•Owe ;>,? £47 ;125.,t0 his partners,- it "was;.clear tlat '■VV;: ; hfl "did tot/'owevit;to;both of .them: ;> Part of ;s,;. : it:;mu3thave'.-been owing'to one.partnerj-and 'ji'rthe'balance to;_the;'other." . : la-this'.'respect V.*V;'elso , L:the r , jodgnienti-was''wron^.' : .V-' V:'■*■■':■■'■■ ;j^iftlTie';;appeal'.must; thereforo,'be,'allowed)' 'i'f.: and "the:case.sent' back for rehearing; before ■ : .i '■/ ■ the; Magistrate's'. Cotirt; .The question 'of 'the i jurisdiction-to hear the case hW ;;i:been;iraisfid: by' Mr... Hindmarsh.. The plains/tiffs";; demand unliquidated, bal-;-.','•{/ance'of '.'a 'partnership;account 'not exceeding ':. .;S£loo,:and .the: Magistrate's .Court hadl.juria- '■'; ;idictiony therefore, to ■ hear • the : case .by' vir- ;: 23 ! v(c); of^the'?.Magistrates' ;. ; :.: SCpurfc ', Act,;:. 1908.'' "■; Thei: respondents' must' :.,H'pay vtheVcosts'of ; .the; appeal, which' would be s:'vfixed:at^£s:ss.i;and'disbursements;:( ..; ; ; '■'■■': ■ ] 0 SyrSERE - JUSTICES; "SIT ,; AS > A ;JTTRy. }; £,'•.•!; V."On June:lß last, an'appeal ;was hoard be.::..v'ioro;:his Honour Jir. '.Justice Sim against the : ;,"^decision.'of Court, of Justices of ihe/i'eace ~;';■ sittingi'at'Lower Hutt, who-awarded £4 Is. /.::'. Sd, damages against' Alatilda'.Turner,' l for: in--:s; juries alleged .to ; -,have,; beenVsustained ■ by, ;.:s'.;>Viliiamv.Ucprge : the ; tresr. '■'._ - •; pass; of ~def enUaht' s.-, cow, on .the Hutt. Itoad ;(v ;; at ;Taita'. f :'l'he' appeal was 'on point.,of. ; .law, I ;■>,.;'the' facts,.beingy -that'a milch.cow,'■ ■ belongS U'\ ing :to the! detendant,.: strayed,-'on-'to,"the ViV.'fToad.-'andifrightenDd'.h horse drawing a.maVj 'chine■rake.':-Plaintiff, who wasJeaaing'thp vV ;horse, ; was crushed against- the fence, ■> and '/ '/the ■ rake was" damaged-; somewhat. ; At,; the J, : hearing ,of>■ the appeal, Mr.'O.'.-Beordirepre-1 ';:■■:'seiited,.Matilda 'l'urncr (appellant), and -Kir. S-Bunny/appeared for the respondent.;',. ..: : I '~-..-'■ y.; In';. , , delivering .judgment -.yesterday, his fv.';'_ Honour'. said that,; in ,'allowing. her' cow .to' ';■■■ :,wanderjon the,road;;tho'-appellant'had com- ,'■ mitted an offence under the Police Offences £;•; Act, 1908, and , the Public; Works -Act, -1908.' .:■/.:• She was;liable,';alao, for all auch.injurious "'■-:.-consequences /.as,'might.- be expected .to . re•;...B'alt. .Was,' , then, the. shying of the horse y.v such -a consequenco?L- That-appeared- -to "his : : ::;.Honpur. to be.a question of fact, which had : ; f : to ; ._be .determined -by the Justices sitting'as ■\ya'.jury, i As they :had given judgment in ;. 'favour,; of , the; respondent, . they must be ;'.:■ ■'. taken . to;. have. answered: ; that question.', in .-.'the ;-affirmativo,-, and their; decision on the :( .subject:, was- final.; - On. that finding, the : ;;■'..respondent .was;entitled;-to ■■ recover damages ;;;; without proof of any impact or actual phy-;-?sical; contact.' ;.;N' .- ,'.-.,-.,- : .-: .'- .' £■;-; ; - Tho appellant had that \. the 'decision of the: Justices > was: erroneous .',-:'■/.. in,' point.... of,. law, :■■ and the appeal would : be ; :■ -'-; dismissed, 'with, ; costs;': (£5 55.) to the ro-vv'epondeht.r--;r \ : ■-.-';'': /; : -.■■■•--A' -'".-'■■'■ ■-. : ■;; H ;;T-;:';MAGISTRAfE's;COURT.;;,; -■ (Before Mr.iw.*G.;Riadell,S.M.)\ \; ; NIGHT;,ADVENTUEES.; '.- '-■'■■'■~. j'AVm./."'Andrews','a'nd :;&arold 'Andrews were ■■'■'.:■ ehargod -.with unlawfully; assaulting' John : .';' O'Sullivan and Prank. Walsh. /The forraor de- , J" : fenilnnt :ivns nlso. charged with assaulting, t ;Ch!is..Hutchinson. -Mr. Jl'Qrath, on behalf of .'; ■ AViii. Andrews, enterod a plea of guilty to all :: /'."three charges. Harold. Andrews; did not ap-- ; "pear; : ' ,'■ .;;'■■ ;.■:'■ .-'■■ •■-., i; ,: . - -._•,. '. ~ The .facts, of .the .case, as stated by Station- ':'■ '■;• Sei'gt. Dnrby, were that/'onthe-.nigKt of Satur- ; day,; June'l9,''dofendante, as they. wero. goin».

Home met the threo men whom they. wore charged with 'assaulting.. They had a few words,-and then began.to fight./ .!'. 'On the charge of assaulting O'Snllivan, his Worship fined ; oach accused 205., in default soven days' imprisonment, and, on the charge of Walsh, fines of 405.-,.in dofauit 14 days'.imprisonmont were imposed.. Wm. Andrews was further fined 20s. for assaulting Hutchinson, with an alternative of seven days' in gaol, sentences in all cases to bo concurrent. : 'I-. THE; TELEPHONE. Two-cabmen quarrelled on. May 31, and,.as a result, each sued tho othfer for , assault. Mr. Westori appeared for -ffm, Carey and Mr. Bnddlo for iliohaol Lane. ... The evidence tondered \was to the effect that the cabmen on the Lambton Quay stand objected to; Carey using ..th0. , . , street : telephone which they subscribed for.:' When Carey attempted to use the telephone Lane attempted to stop him; and they had a scuffle. Lano stated in "hia , evidence that Carey waa in the habit ■of hiving two or three cabs on the ' stand, . and, whenever a telephone call camo when he ' was :No. 1 on the rank, he would send..one..of his other cabs'away, so thai he still retained first position, and the privilege of taking the next telephone order. ■ : -". :His Worship held that both defendants had been guilty, of assault, but the assault committed by Lane ■ was the mere eerious. Lano, was convicted' and fined 205., and,costs £1 Iβ., and Carey 10s., and -costs' £1 Is.' The default was filed at 43 hours' imprisonment in each case. On the application of Mr. Weston security for appeal was fixed at ,£lO. OLD MAN ASKS FOK " THREE MONTHS."! : A feeble- old man named Matthew Pickering pleaded -guilty to'a charge of being an idle and disorderly person in ,that he had insufficient lawful means of .support. - ■'■-■.'"•■" . Station-Sergeant Darby said . that accused, who had a long list of previous convictions against him;-; had been going from house to house begging alms. When arrested by Constable Stevens he expressed gratification,' and hoped he would get three months. His Worship, imposed the prewired sentence. , ; .;-. : " ~ INDECENCY. :, ' . \:'An; old > man .named- Thomas... Bichardson pleaded guilty on two .■counts'; of a charge of indecency.: Sentences of six months' imprisonment wero- imposed on both .charges, the terms to' be concurrent. , ,- ! :>; ']''~ A-TEAM FAKE.' . j ' A,joungf. man named George Tracey• pleaded guilty "to .a charge of attempting to evade payment ,of a. tram late. Mr.' O'Shea, for [the prosecution, stated that on June. 19, de-i feridant. attempted.'to travel on a Constable' pStreet icarj paying-only :for. one v section, and I ( producing ; 'a.; twopenny section; ticket when' I asked' ; :for the. extra fare. "He was convicted , and ordered.to pay costs (XI; Us.), in default seven days'; imprisonment. Fourteen days were allowed in which to'pay tho fine." ! : . : ■-■-.:■ ;■•; ''■ |f;;;;miNT3ENiNCE CASES. . '■'; : . ''.Arrearsvto,' the amount of £4 10s. on a maintenance order"; were remitted, and tho order was reduced to 3e. per' week. : -' .";•■'.. -■■ ■;'/;'■[ : :--..-' : ',- ''■ -. " ', •■ .-:•■ -, ."For. disobedience, of; :'«'■. maintenance, order, Charles Heron was convicted .and sentenced to one month's imprisonment, Warrant to be.sus-. pended so long as ss. .a week is paid off the arreare of--iß.l<s::-:;v.- ; ; : ••■/.'■::■■■;■ .-.-..'■ .■• 'For.failing to support his wife,' Annie Auetin, Walter,, Austinr.i.was", sentenced to one lnonth^;'iiivprjsonnl<in't.',!.■' V . ; j'-Frank : -Harrison, »for. failing : to maintain lira wife, .Alice''Emily,'"'Harrison, was convicted and fined 20s. and costs, (£1 Iβ.), with an'alternative'of seven; daye'--imprisonment. '■ Kobert -Keillv was: adjudged •"■ the putative fnthe'r of , an illegitimate:child,-and ordered to pay ss. a week towards its-maintenance,' and costs (^2:25.), firstfjpaymont to, be, iuido on July. .5, i .Mr.- Kelly for. the prosecutrix,,;c.. ..j,:;v W;-t,;;: VI . >- '- .: .. ■; ; ' '^'.v: .o^S'caseS;-:/:;';';■;;,:.; : -For-insobriety two'; , first offends™ .were convicted -andvdischarged;- and four others, who failed to answer to their bail, were fined 10s., with the ■alteinatvw'#';24. hours in gaol: Clara Algar, who bad been once' previously convicted within'. the'• past .-six ■■■months, .was fined ss.',', in default 748 hours' , imprisonment,' and James Henry Browning, w.ho.had a similar record and-.disoharged.; '•; ... ■. • .iFoiraoiteringJjin^a-rpii'blic'place,' to Cuba Street,. : .after,;,beihg;directed.by a.constable to-move "on;* Alfred/John Hearl was fined-lOsAand costs, (95.), in- default 48 hours' 'impriSonDtent.';.'.'"" , -"'\. T '.;.',. . ..-, .prohibition border, was .against' Walter Patrick MiUane, to.obtain forone year in four.districts. / • -' '■~•'..• ■