MAGISTRATE'S COURT.

Dominion, Volume 3, Issue 858, 2 July 1910, Page 7

MAGISTRATE'S COURT.

(Before Mr. W. G. Riddell, S.M.) RAILWAY CONSIGNMENT NOTE. DEPARTMENT'S CASE FAILS. Tho Railway Department prosecuted Perham, Lavsen, and Co. arid Orville Handle that they did, at Rangalaiu;, wilfully ■ make a false statement as to tho quantity of timber delivered upon a New Zealand railway consignment note. The quantity was entered as 5520 foct, whereas in fact it was 7000 feet. Mr. Fell appeared for the Department, and. Mr. Blair for tho defendants.

Mr. Fell explained that under. Section 15 of the Government Railways Act defendants were liable to a penalty of riot more than £50. On March 9 last, Perham, Larson, and Co. consigned 5520 superficial feet of timber at Rangat'aua, and, on the same date, had sent an invoice t-u tho cdhsignco of tho goods, Mr. O. G. Bond, Lower Hutt. This invoice stated"Please receive, in good order and condition, 9389 superficial foot." When tho timber arrived at Lower Hutt, the consignment was 6hecked, and found to measure 75813 superficial feet—a shortage of 2060 feet. This meant-a lossof £4 revenue to tho Department.

Mr. Blair, for the defence, submitted that it had not been proved that tho defendants acted wilfully. Such proof was essential to the caso for tho prosecution.

His Worship hold tlmt it was for tho prosecution to prove a wilful false statement. Defendants, however, should bo called upon to make somo explanation.

Evidence, was then given on behalf of tho defendants to tho effect that the mistake was a bona fide one.

His Worship dismissed both informations.

Mr. Blair asked for costs, but tho application was refused..

; AN EXEMPLARY FINE. A fine of £5, with Court costs, 75., was imposed upon a man named. Swenson, who pleaded 'guilty to a charge of cruelly ill-treating_ a horse, working it while it ivas suffering from a soru back. According to tlio police ovidence, tho case was a very flagrant one. ■ When tho saddle pad was removed from tho animal's back, soveral raw arid suppurating sores were disclosed. INTOXICATED JEHUS. Gu.staf Adolphus Dolling pleaded not guilty to a chargo.of having been drunk while in. charge of a -horse and vehicle in Upland Road, and was convicted and lined 205., with tho option of seven days' imprisonment. A. similar charge was preferred against Charles Smith, wlio pleaded guilty, was. convicted, and fined tho same amount, with the samo alternative.

FINED FOR ASSAULT. ,- Charles Nordoll. was - convicted and fined 205., in default seven days' imprisonment, for assaulting Edward Robson. . , /UNSOBEIi ONE: IN A BAR. il .Euvther;,Rearing of the charge;against Susan Doores Williams, Jicerisee'of Barrett's Hotel, of permitting drunkenness ..on her licensed premises,. and of the charge against Percy James - (an employeo) of having' unlawfully supplied q n°i r r to Gcol =° M'Kinty was taken, oub-lnspcctor N-Drwuod prosecuted, and Mr. Blair appeared for the defendants.

Sergeant Kelly deposed that about H. 15 p.m.; on the evening in question lie saw; six men in the lounge bar of the hotel. . Percy James was behind nix? •?/' Kmty and a man named U :\eill. were ■ standing at the' counter, each with a glass of liquor. M'Kiutv was intoxicated.' Witness'told the barman that M Kmty should not have been served, and James replied: "I have not served him:" M'Kinty then placed no glass on the counter, and James underneath. AVitntiss spoke to of l°i sajd M ' Kll %>as a friend of his, that he was "a bit drunk," but no would take him home; A soil of tho hatJ , L i s attention directed l>a J,, , aI , K ? James again denied having SC rved Inn, -When requested wn.Vl y \MKinty staggored, and was then arrested. ■ \ Mr. Blair remarked that the defendants did not deny that M'Kinty was all i „ caJ l°4 Percy James and lhomas Kelly - as witnesses.' Both liquor Kmty had b ° CU refused

n hip <,b ® erV6<l that he was not altogether satisfied that the evidence as to selling was conclusive. From tho fac that M'Kinty had a glass S front m him: and wafe holding it,, one might infer that he had been supplied but witnesses had; said he had been refused-beer, and that the glass belonged to another person. This in-' formation against James would bo dismissed. , .

With regard to the other" charge (that against the lieenseo) j a conviction must be entered. The barman had admitted that he know M'Kinty ™ drunk when he approached the counter. It was his duty, seeing that theio were only a few persons in tho bar to have at once ejected him. Ho must have known, or should have known, tlio risk to which he was exposing his employer by allowing M'Kinty to remam. A fine of £5 would bo imposed.

Mr. Blair asked that the fine be increased to allow of .appeal. This was agreed to, the fine being raised to £6. Security of appeal was fixed at £10 and payment of the fine. ' '

ONE MAN, THREE FINES. John Henry Rippori was charged, on remand, wit-h that,'- having on June 25 received.2s. from one Captain Bonner, in terms requiring him to account for tile same, he failed to do so. Accused pleaded guilty, and was convicted and lined 205., with witnesses' expenses Bs., in delault 14 days' imprisonment. Ho was also charged with having, on Juno 27, stolen a ring valued at 355., irom some person or persons unknown, lie pleaded guilty to this charge also, and was convicted and fined 205., with witnesses' expenses 125., the . opljkyi being 14 days' imprisonment. ■ A conviction was also recorded, and a fine of 205.,' with the option of 14 days' imprisonment imposed, on. Rippon for having, on June 27, stolen a coat, valued at 12s. Gd., from John Franklin.

CIVIL BUSINESS. (Before Mr. W. R. IJaselden, S.M.) LEASING THE HOTEL ARCADIA. CLAIM FOR COMMISSION. An interesting caso, arising out of a claim for commission alleged to be duo to an agent for negotiations which had resulted, in the execution of a hotel lease, was heard before Mr. W. R. Haseldcn, S.M , yesterday morning, when Joseph Thomas Horn, land and estate agent, of Wellington, sued Frederick' Charlrs Hand, of tlio Motel Arcadia, .and the Hotel Arcadia Company, Ltd., for the. sum of £25. The amount was

claimed to he duo as balance of tho payment of £50 arranged to be paid to tlie plaintiff hy tho defendants in tlio event of the former bringing about the sale of a lease of tlio Hotel Arcadia. Mr. 'J'oogood appeared for the plaintill and Mr. Williams for tlio defendants.

■ Mr. 'J'oogood said that tho plaintilt Horn had received instructions from defendant to open negotiations for the sale of tho lease of tho hotel. Tho commission to bo paid to him on tlio execution of tlio lease was £50, payable in instalments of £25, the first to ho due on the execution of the lease and tho payment of tho first instalment of tho purchase money, and tlio second t.o bo duo on the payment of thq balance. The plaintiff subsequently negotiated with Mr. D. O'Connor, vvlio agreed to lease the hotel, and duly completed the agreement in tonus of a 5-ycars' lease at £25 per week. O'Connor afterwards alleged misrepresentation on tlio part of Hand and his agents in connection with tho negotiations and obtained a rescission of the lease on tlio basis of a compromise witli Hand, being released from tho payment of tho balance of the purchase money (£500). 'Horn, tho aptenL, claimed that as lie liad successfully completed his negotiations and secured a binding, lease, ho was entitled to tho balance of bis commission irrespective of tho rescission of tlio lease and the non-payment of tlio balance of the purchase money. . Payment contingent upon a certain event must hold, argued counsel, even should that event be prevented from happening by tho deliberate action of tho other parties to the negotiations after agreement had ■been arrived at and executed.

Joseph Thomas Horn gave evidence that during the course of his negotiations with O'Connor, tho two went through tho books, which disclosed, acHorn, tho fact that the average number of boarders at tlio Arcadia was 60 per week, at • Bs. per diem. Hand,, the witness stated, did not ap-pear-to know much about the-business, having onl.y been u member of tlio company for about tlireo weeks prior, and' referred him to a Mr. Paterson, tho previous owner, for particular, tr Connor -gave evidence that Horn, the agent, had misrepresented t ie takmgs of the hotel to the extent that the average number of boarders at the-hotel was CO per week, at Bs. per day, whereas about half of them were only rated at 4s. per day. Horn had assured him, and lie relied upon that assurance, that the affairs of the hotel would be thoroughly investigated, irrespective of whatever might havo hcen- stated of the hotel by Paterson. He (the witness) had accordingly based his estimates of tho venture upon the assumption that tho GO boarders paid os. per day. Had he known that only about half paid Bs. per day, while the remainder paid 45., Jic would not havo gone into it. He had subsequently discovered the actual position, commenced an action, in the Supreme Court on the ground of misrepresentation, but as ho was unable to obtain hearing within a reasonable period ho accepted a compromise.

l'.redorick Charles Hand, of the Arcadia Hotel Company, stated tliat the • 1)ec " * losi »g concern. When U Connor instituted proceedings at the supremo Court witness acccptcd the advieo or Mr. Toogood and .entered upon a compromise. Ho was told that no "had 110 liopo." He agreed with tho suggestion made at the time that the best, interests of tho hotel .would 1,0 served by avoiding litigation. nj ii ' ams ' defendant, said that Horn had assured O'Connor that a careful investigation would bo made of the affairs of the hotel. Ho had neglected to ascertain the full facts of tlie ease, and although ho (counsel) did not suggest that Horn had wilfully misl opresonted matters, still his neglect to make full inquiry led to O'Connor basing his estimates, upon inaccurate .imoimation. I'urther, tlie payment of tho second instalment wa* absolutely contingent upon tho payment of the second instalment of 1 tho purchase money It was, as it wero,> guaranteed against tho.failure, of O'Cononr to pay tlie second instalment. The instalment wps not paid, .and second instalment of the commission was therefore not earned. Mr. Toogood in repiy, argued that ' . " a d been any misrepresentation Horn was not responsible, as lie. had relied upon Paterson's statements tor Jus facts. He contended that Horn having successfully completed his nogCuiations for tho lease, and the ment having been duly signed by" tlie parties, was entitled to his commission whether the second instalment of tlie purchase money was paid or not. That the second instalment was not imid .was no, fault of Horn'o.

After hearing further argument his Worship reserved his decision.

TRAVELLING EXPENSES. Judgment was given for tho nlaintilf m the ease of W. A. Evcnson v. John iU JJrearfcy, <t claim for £2 10s., stated to be due m respect of travelling expenses incurred in connection with tho sale of a,hotel. ■