MAGISTRATE'S COURT

Dominion, Volume 10, Issue 2941, 29 November 1916, Page 11

MAGISTRATE'S COURT

SALE OF A PIANO

AN AUCTIONEER'S LIABILITY Mr, S. ■ E. M'Carthy, S.M., presided at the Magistrate's Court yesterday, and took tho civil cases. E. H. S. Hamilton, bank teller, late of Wellington, proceeded against A. L. Wilson and Co., auctioneers, and in the statement of claim it was set out that plaintiff engaged the defendants as auctioneers to sell hisiurniture. The defendants accepted the engagement, and ,the sale was held on April 5. It was alleged that tho defendants failed to perform the duty, of making an enforceable contract in regard to tho sale' of a piano, which was "knocked down" for tho sum of £57 to Mrs. AV. Watt, and through which the plaintiff had suffered the loss of that sura; and had also incurred expenses totalling £7 6s. in connection with the attempted recovery of tho said sum of £57. Mr, T. Ncave, instructed by Mr. H. Hill,.appeared for plaintiff, and in outlining his case stated that prior to the date of the sale plaintiff had received notice of his transfer to Christchurch, and prior to removal sold his furniture by auction, through defendants, and the piano was sold to Mrs. Watt. During the night of April 5, tho date of the sale, Hamilton's house was broken into, and the keyboard of the piano was stolen. Mrs. Watt, , tho purchaser of the instrument, refused to take delivery, and plaintiff proceeded against Mrs. Watt to recover damages. . The case was heard by Mr.■ W. G. Riddcll, S.M., and plaintiff was nonsuited, on the grounds that the sale did not comply with the Sale of Goods Act. No memoranduin was made by the auctioneers in respect of the sale, but counsel held that upon tho fall' of tho hammer a contract had been entered into. It was contended that defendants' neglected to make a proper and enforceable contract. , Mr-. E. K. Ivirkcaldie, who appeared for tho defence, contended that, as the sale was held in the private residence of the plaintiff, the duty of the auctioneer was solely to Belli on behalf of plaintiff, and -no duty devolved upon the auctioneers.to look after the furniture. The delivery of the furniture was to be taken on the day of the sale or before 10 o'clock on the following morning, and the purchaser took advantage of. the condition not to take dolivery until, the morning. Counsel contended that the plaintiff was bailee, and, being responsible for tho piano, he failed to exercise reasonable care. He,' therefore; claimed that judgment should bo given. for.defendant. The Magistrate gave judgment for plaintiff for £57, with costs totalling £7 19s. .-■...' ';■■'. UNDEFENDED CASES. J udgmeh.t for . plain tiff, . by default, was given in tho following undefended civil cases :— Maud Boworbank v. W. G.-Thomp-son, ■ £10, costs £1 6s. 6d.; G. Hardt and Co. v. H. G. Bedell, Ltd., £60 18sL 6d., costs £4; Now Zealand Poultry Industries, Ltd., v.J. Eilerson, £3 9s. <ld.,- costs 135.; Wellington Meat Export Company, Ltd., v. Mrs.. V. S. Harley (sued in respect of her separate estate), £9 3s. 6d., costs 28s. 6d.; Wm. Strachan and Co. v. Mrs. F. H..' Phillips £12: 155., costs 30s. 6d.; G. Hardt and Co. v. -Wm. Roxburgh, £6 195.'1 id.,, costs 235. 6d. JUDGMENT SUMMONS. N. M. Manson was ordered to pay tho D.I.C, £3' 45., before December 12, in default.to undergo three days' imprisonment. RESERVED JUDGMENT. Mr. W. G. Riddcll, S.M., delivered judgment in the caso of A. Shephard »•.;.!.■ Wilson, a .claim for £G4 18s., being £32 135., balance of moneys due under a contract to erect a house : at | H'aiaitai, and £32 ps. for extra materials, .supplied and .work done during! tho erection of tho 'house.- ..'ln! tho course of his' judgment tho' Magistrate stated that tho plaintiff admitted that the?plans and specifications produced were those which- ho was working from, and. stated that if he had not completed the work according to requirements, then any alterations were agreed' to by tho defendant. It was stated. in' the. specifications that all work was to bo finished to the satisfaction of the proprietor, and-the-de-fendant, being the proprietor, had- expressed himself not satisfied with some of the work done by the plaintiff.-Tho Court had therefore to decide whether those parts of tho • work objected to hv defendant came within the plans and specifications, and whether defendant's objections were reasonable. After closely reviowing the objections, the Magistrate went on to say that tho law relating to disputes connected with building contracts similar to the one under consideration was to be found in "Hudson on Building Contracts," where it was said that if the contract stipulated that the entire work had to be done for a lump sum no payment could be recovered until the whole work had been completed, unless there was some special provision for payment bv instalments or before completion. His Worship considered the contract an entire one, .and that the evidence showed that parts of the work on the building had not been completed. Upon the law laid down and authorities cited, plaintiff could not recover the balance of, money alleged to he duo to him under the contract- until the whole of the work had been completed. Ho was entitled to recover part of extras claimed, amounting to £5 155., and judgment for this amount was entered with costs totalling £3 95.. and plaintiff was nonsuited on the first part of tho claim, with costs £3 17s. At the hearing, Mr. Barton appeared for plaintiff, and Mr. A. W. Blair for defendant ALLEGED SLANDER. Mr. L. G. Rcid, S.M., heard the case brought by Charles Crawford (for whom Mr. A. 1 H. Hindmarsh appeared) against John M'Williams, contractor, represented by Mr. A. AV. Blair to recover tho sum of £200 for damages for alleged slander. The case for tho plaintiff stated that the defendant falsely and maliciously stated and published of and concerning the plaintiff the words following:—"Go away, you thief; I don't want to talk to a' thief like you." The. words wcro alleged to have been uttered by defendant on Tuesdav, April 18. According to the evidence, tho defendant bought some curtains nt a sale held by A. L. Wilson and.- Co., auctioneers, and instructed the clerk to deliver them to _ Crawford. The curtains were accordingly delivered to Crawford, hut the latter failed to doliver them to M'Williams. M'Williams called at the auction room to pay for the curtains, and informed the clerk that tho goods had not been delivered, and was told that Crawford had the. goods.' Subsequently tho clerk saw Crawford, and questioned him about the curtains, when the latter said he had not received them. M'Williams indicated to Crawford that lie would make him pay for the curtains, and subsequently took proceedings in the Magistrate's Court to recover the value of tho goods. About two months later, when M'Williams was passing Wilson's auction rooms on Lambton Quay,' according to Crawford and a number of witnesses, plaintiffsaid to M'Williams: "You're a nicn man to make me pay 235. for what I

know nothing about." - M'Williams then, it was alleged, used tho words complained of. For the defence tho pleawas justification. Defendant's version of the conversation'was that Crawford started off by telling him that the "Curse of Cromwell", was on him (defendant). M'Williams replied: "Now, Crawford, you bo honest, and nobody will make you pay for anything you ought not to pay for." Crawford then said: "You say I am not honest; I am not a man-sweater like you." The defendant then said: "Well, you go down to tho Police Court, and get your record. This is the second time you have stopped mo in the street in this way, and next time you do it I will put you where you ought to be. I don't want to he stopped in the street by a thief." Mr. Blair produced evidence showing that plaintiff had boon convicted several times of theft. Mr. Hindmarsh contended that the convictions were old, and that the words complained of implied that plaintiff was a thief at the present time. - Judgmeut was reserved. SUPREME COURT In the Supreme Court yesterday, the rehearing of tho action brought by Alfred Ernest Cocker, a tram conductor, represented by Mr. J. O'Shea, City Solicitor, against Mrs. N. Nightingale, garage proprietress, for whom Mr. T. M. Wilford appeared,'to recover £698 damages for alleged' injuries received in a motor-car accident, was taken by the Chief Justice (Sir Robert \ Stout) and a common jury. The evidence was on ,the lines of that given at the previous hearing. A law point raised by the defence and reserved for further argument was as to whether the driver of the motor-car concerned in causing the_ accident was engaged in his own business or that of his employer. This point was not submitted to the 'jury, and will he argued this morning. The issues submitted to the jury and tho replies thereto, were as follow:— ' (1) Was tho accident whereby the plaintiff : was injured caused by tho negligence of Marshall, the servant of the defendant?— Yes. (2) Could the plaintiff, by the exercise ot reasonable care immediately prior to tho accident, have avoided the injury to himself? — No. (3) What damages (if any)-is tho plaintiff entitled to recover ?—Medical expenses, £15; wages, £156; and general damages, £9. Total, £180. A MANAGER CHARGED WITH THEFT. Tho hearing.of the Napier case in which Sydney Mastell, late manager of the Hawk'e's Bay Fruit, Produce, and Cold Storage . Company, Ltd., ; was charged with stealing 'various -. sums, totalling £139 16s. Id:,. on' various dates, the. property of the said company,, was continued before His Honour Mr. Justice Hosking. "Mr. H. 15. Lusk, of Napier, appeared for the Crown, and Sir John Findlay,. K.Q.. with him Mr. J.'B. Dolan, of Napier, represented the defendant. The case for tho prosecution closed early in the afternoon; when Sir John Findlay, after! a brief opening speech, called evidence, tho first witness being the accused, Sydney Martcll, The taking of evidence had not concluded when the Court, rose.last, evening. ■