LAW REPORTS.

Dominion, Volume 5, Issue 1275, 2 November 1911, Page 3

LAW REPORTS.

SUM OF £20,000 INVOLVED. DOCK SAND AND GRAYEL. AND CONTRACTOR'S POSITION. JUDGE DEFINES IT. Judgment was given in tho Supreme Court yesterday morning by tho Chief Justico (Sir Robert Stout) in a special case bearing on an action for alleged breach of contract in connection with cessation of work at tho Wellington Dock. ' The parties to tho action were Pitcaithly and Co., contractors, plaintiffs, and' John M'Lean and Son, contractors, defendants. At tho hearing, Mr. H. D. Bell, K.C., with him Mr. F. G. Dalziell, appeared for plaintiffs, and Air. C. B. Morison, with him Mr. A. W. Blair, for the defendants. The Preamble of it. In the original actions, Pitcaithlr and Co. claimed ,£20,0f10 as damages for alleged, loss of profit. It had, however, been agreed that fceiore hearing this case, certain questions of law should be settled by stating a special case for the Supreme Court. The following facts were admitted, but for argument of tho questions of law only:—On January 31, 1907, the ' Wellington Harbour Board accepted M'Lean and Son's tender for tho construction of the graving dock in Wellington, and, on February 6, 1907, M'Lean and Son entered into an agreement with Pitcaithly and Co. for the supply of gravel and sand for the work. In accordanco with tho terms of this agreement, Pitcaithly and Co. were called upon to supply all the gravel and sand for the dock until the cessation of the works. They duly supplied it for the concrete work. On September 28, 1910, a deed of release was executed .as between tho Wellington Harbour Board and M'Lean and Son. This was delivered about January 12, 1911, and became effectual, in consequence of the passing of the Wellington Harbour Board Empowering Act, 1910, which came into force on December 3, 1910. Ptfcaifhly and Co. contended that it was an implied condition of tho agreement of February 6, 1907, that M'Lean and Son should proceed with the erection of the dock an'J complete it, and that they should not enter into any arrangement whereby tho contract should be determined. In the alternative, they (Pitcaithly and Co.) contended that, if no sucli condition was implied, and if M'Lean and Son had a right to elcct (and did elect) to determine the contract with the Harbour Board. M'Lean and Son were, nevertheless, liable to pay to Pitcaithly and Co., as damages, the wholo of tho profit which would "have accrued to the latter if the contract with the HarbouT Board had been completed. Defendants (M'Lean and Son) made answer to the above c'ontoations, and denied liability.

Eight , questions.had been submitted to the Court for answers, but after hearing a portion of Mr. Bell's opening argument, his Honour said: "The question appears to be simply this: AVliether it was a contract to purchase a certain amount of gravel or to purchase according to requirements?" The Decision. In the course of his judgment, the Chief Justice stated that tho promi&e of M'Lean and Son's seemed definite enough. They were to order all gravel caul sand required in the construction of tho dock. If ( tho contract were stopped, must M'Lean and Son still order sand and gravrj? And, if they did not do so, wero they guilty of a breach o-f contract? . . . There wis no implied warranty in the contract, batwcoa the Harbour Board and M'Lean and Son, that the work could be completed in tho way shown in tho plans and specifications, and (unless thero were such a warranty) it could not be hel (I that defendants had entered into any undertaking other than to order from plaintiffs such sand and gravel as they might actually require. Tho questions submitted to the Court wero accordingly answered in favour of M'Lran and Son. Mr. Morison then asked for judgment for defendants, in accordance with his Honour's dee'sion.

Mr. Dalziell opposed the application. In the special case submitted, the facts had only been admitted for the argument of questions of law. His clients had vet grounds on which to proceed, and there were certain facts which should go to a jury.

His Honour agreed to defer iudgment, rind adjourned the case until Wednesday next, when Mr. Dalziell will have an opportunity to state specific grounds as to why judgment should not be entered. DOMINANT MOTIVE. ' WAS IT UNFAIR PREFERENCE? r „^.^ e Supreme Court yesterday the Chief Justice .(Sir Robert Stout) was engaged in hearing the appeal of the Offic,lavXsa?nee a S a »ist a decision of Dr. A. AI Arthur, S.M. In the original caso A. D. Kennedy and Co., Ltd., wine and spirit merchants, Wellington, as assignee Sfn. . n "OMrl George Stansell, sued the Official Assigneo iu Bankruptcy of the property of John Robert George Standi to recover the sum of £73 9s. Id., alleged to be due as balance of an account lor £lfi !>s. Id.

a ! h ® Si'jS'i'al defendants were M'Grath and Willis, solicitors, but at the first meeting of creditors it was decided that the Official Assignee should defend tho action, and M'Grath and Willis were subsequently struck out as defendants, the Official Assignee being substituted. Kennedy and Co. in their statement of elairn allege! thit on May 30, I!)U J '?.t' 1 and Will.s received on account °LzS.\ Ilobert George Stansell a sum of wlO-u los. .id., being the balance of purchase money payable to Stansell by Robert Dwyer on the sale of the intonst of Stansell in the IJailwav Hotel, lower Ilult. On tho same day Stansell, .being indebted to the plaintiffs in the sum of J gave nil Ofdw writing upon M Giath and Willis, directing them to pay plaintiffs £173 Os. Id. The order wns duly presented to M'.Grath and Willis, who, it was alleged, were directed by btansoll to pay, au.l they promised to pay tho sum out of the fund on June 5, l'Jli, provided tho temporary transfer of the license of tho hotel to Robert Dwyer was passed by the Licensing Committee. Tile tTansler was duly passed, and Ivennedv and Co. received £100 on account, but the balance of the order was refused, M'Grath and Willis stated that they had received notice of Slansell's bankrupts Hence tho action.

In giving judgment, tho Magistrate had said: Both parties in tlio transaction wero bona fide, but the action gives rise to three points :-(a) What operates as an assignment; (b) the offsets of bankruptcy on assignment; (c) the question of fraudulent preference. As to what will operate as an assignment of a chose in an action it is clear that no special form of words isnecessary. Any words will suffice which show a clear intention to transfer a chose in an action, or which distinctly appropriates a specific portion of a specific fund to, or to the us© of, tho assignee Regarding the effect of bankruptcy on assignment, his said: "It is clear to me that if the assignment be given for valuable consideration, it is binding at once on the assignor, and cannot bo re. voked by him. It binds also the assignor's trustees in bankruptcy, and any execution creditor of his. . . As to fraudulent preference, his Worship said that the party supporting the naymont (in this caso the plaintiff) must show that it was not made with tho viow of preferring him. Tho evidence in the caso showed that tho debtor did not give tile order to give the creditor a preference. Tho pkintiff must succeed as the assignment was a valid one, and the subsequent bankruptcy of Stansell did not affect it. Judgment was accordingly given for the amount claimed, and the usual costs to be paid out of bankrupt's estate. Against this decision, the Official Assignee appealed 011 the ground that the magistrate was wrong in fact and in law in holding that the transaction, whereby Stansell gave Kennedy and Co. the order, did not amount to a fraudulent preference, that the magistrate was wrong in linding that the dominant motive of Stan-

sell was not to prefer Kennedy and Co.; and several other grounds. Mr. W. 11. D. lieil appeared for the appellant, and Mr. O. 11. Beere i'or the respondent. After hearing legal argument, his Honour reserved decision. CITY TO PAY £1250. WIDENING OF WILLIS STREET. Decision was given by the tion Court yesterday in tho case in which Thomas Coverdale sued the Wellington City Corporation for £2520. Tho Chief Justice (Sir liobert Stout) presided, and, sitting with him as assessors, were Messrs. George H. Scales and L. 11. B. Wilson. At the hearing, Mr. O. N. Beere, will? him Mr. G. 11. Fell, appeared for the plaintiff Coverdale, and the City Solicitor (Mr. J. O'Shea) appeared for the corporation.

l'iaintiff, Coverdale, claimed the amount stated above, as ccmpensation ior loss arising from the taking of land at tho corner of Willis Street and Old Customhouse Street. The land had been taken in connection with tho widening of Willis Street. Its dimensions were given as 10ft. depth, and about 56ft. in frontage to Willis Street. Its exact area was 558 square feet. The claim was equivalent to £45 per foot of frontage. Details of tho case were reported in yesterday's issue. The Chief Justice stated that the Court had/arrived at a unanimous decision to .ward £1250. No costs were allowed, but each party was ordered to pay its own assessor £10.