COURT OF APPEAL

Dominion, Volume 10, Issue 3106, 9 June 1917, Page 12

COURT OF APPEAL

AN INSURANCE CASE

Tho Court' of Appeal delivered judgments yesterday morning. The Chief Justico (Sir Robert Stout) and Their Jfonouns Mr. Justice Chapman and Mr. Justico Hosking occupied tho Bench.

At tho last sittings, tho New Zealand Insurance Company. Ltd., appealed against a decision' given by Jlr. Justice Him, at Ckristchurcli in favour of the Tynoside Proprietary, Ltd. (a company carrying on business at Wellington as coai-mino proprietors).

In tho Supremo Court the New Zealand Insurauco Company claimed damages to tho amount of £231 17s. lid. for breach of warranty of authority, and, in tlio alternative, £231 17s. lid. for unpaid premium. Mr. Justico Kim gave judgment for the Tynesido Co., and it was argued for tho iusuranco company before the Court of Appeal that the decision was erroneous in fact and in law.

Tho Court allowed the anneal, and ordered judgment to be entered in tho Supremo Court for tho Insurance "Company for tho amount claimed, with costs according to scale. The Court further ordered tho respondents to pay the company's costs in the Court of Appeal on tho middle scale as from a distance.

The appeal wa hoard by His Honour tho Chief Justice, and Their. Honours Jlr. Justico Denniston, Mr- Justice Cooper, and Mr. Justico Chapman. Mr. 0. P. fikcrrett. K.C., and Mr. Alpers (Ohristchurch) appeared for the appellants, and Jfr. IT. Myers for the respondents.

INTERPRETATION OF A WILL. The trustees of the will of the late Hon. William Barnard Rhodes had asked certain questions arising out of its construction, and the Court yesterday answered as follows:—The children of Mary Ann Moorhouse take a vested interest, and as ono has attained the ago of, twenty-one years and tho daughter has married, the event mentioned iu paragraph 78 of tho will has happened, which allows tho property to go to the iESue of Mary Ann Moorhouse.

Tho Court ordered costs of all parties as betwcea solicitor and client to be t-aicd by tho Ilegistrar and, paid out of the estate. At tho .tearing, the Chief Justice prasided, and Mr. Justico Denniston and Jlr. Justice' Cooper also were on thb. Bench. Tho following counsel were ensoKed in tho case:—Mr. A. H. Dadiirld, lor theHrueteeß; Mr. J. 0. Peacock, for tho children of Mary Ann Moorhouse; Mr. 0. P. Skerrett* K. 0.. with, him Mr. H. Buddie, for Linda JS. Ehodes Moorhouse; Sir Francis Bell, K. 0.. with, him Mr. T. F. Martin, for A. 11. G. Uhodcs and all others interested iu the residuary estate.

SUPPLIER AND DAIRY CO. . Another caeo decided was that in which. Harry Edward Good, of Wanganui, grazier, appealed on laiv and fact asftinst a decision given by. Mr. Justice Edwards in favour of -William James Robertson Hruco, of Wanganui, farmor.

In the Supremo Court, Bruce, suiag on behalf of himself and all others having tho same interist, claimed! en account of tho proceeds of oert-ain butter and checso of which the defendant Good was alleged to havo taken possession and "which ho was alleged to have sold. The plaintiff alleged that ho and numerous other dairy farmers delivered to a company called tho Wanganui Co-operativo Dairy Co., Ltd., tlio cream produced by thoir herds, upon terms that the company should, as their agent and on their behalf, manufacture such cream into butter and consign the butter to England for sale: that the company should deduct from tho proceeds of tbo sale ono penny per pound; of the butter manufactured; and also the proceeds of thirteen pounds of butter in respect of each hundred pounds of butter-fat supplied, and a proportionate part of the expenses of tho csport and soilo of tho butter; and that tlio company should account to each of tho snppliors for tbo proceeds of the cream supplied, by him. The plaintiff further Alleged that tho defendaut, under colour of a debenturo granted by tho company to tbo Union Bank of Australia, Ltd.. and subsequently assigned to tho defendant, wrongfully took possession of and sold certain butter held by tho company, and that ho had refused to accouut to the suppliers for the proceeds of such pales.

Good's defence was tbfll tho plaintiff and the other suppliers sold their cream to tbo company, and that the butter, tho produce of the cro'am, was tlio oroperty of tho company: that possession thereof was lawfully taken by him. ond that it wafl lawfully sold by him under the powers given by the debenturo already mentioned. Five additional defences were set up by the statement of defence, but at. tlio argument upon further consideration tho first, fifth, and sixth defences only wo.ro relied upon by counsel for the defendant. By the fifth defence tbo defendant alleged Uv.it. if tho company wns tho agent of I.lib plaintiff, then the company was a mercantile agent within the meaning or the Mcrcantilo Law Act, 1908, and was in

posnession of Ihc butter with tlio consent of t.ho plaintiff, and coukl and did as such mcrcantilo agent plcdgo the butter to tlio bank. Jiy tho sixth defence, the defendant questioned the capacity of the plaintiff to bring iho action as a representative action. His Honour Mr. Justico Edwards save judgment for the plaintiff, end it was this judgment that the appellant called in question before the Court of Appeal. i Tito Chief Justice and Mr. Justirc Cooper wero for dismissal of tlio appeal, while Mr. Justice Denniston and Mr. Justice Chapman held, that it should he allowed. The judgment of Mr. Justice Edwards in the Supreme Court, therefore, stood, ond the appeal wad dismissed without any order being: made about costs.

Sir Francis Bell, K.C., moved for provisional leave to Appeal to tlio Privy Council, and this was granted.

Counsel engaged in the case were:—Sir Franciß Bell. K.C., Mr. C. P. Skerrctt, K.C., and Jfr. 0. A. Izard for tho appellant: Mr. 0. B. Morison. K.C.. and" Mr. B.rown for tho respondent.