PECULIAR POSITION

Dominion, Volume 18, Issue 192, 9 May 1924, Page 9

PECULIAR POSITION

QUESTION OF INDEMNITY SUPPLY OF MILK TO CITY A peculiar position was revealed before Mr. Justice MacGregor in the Supreme Court yesterday, in an action by William Thomas Strand, farmer, of Lower Hutt, against Henry Albert Ward, formerly manager of tho. municipal milk department, Wellington. As defendant was outside the Dominion, plaintiff had applied to proceed for service against him. According to the statement of claim, under a writ of summons, the city corporation obtained judgment against William Henry Reid for £3lB, but this had, U«t been satisfied. Plaintiff had previously guaranteed to the corporation, payment of the money for which judgment was obtained to the extent of not more than £3OO. Defendant had agreed to indemnify the corporation against clainis under tho guarantee. Plaintiff claimed from defendant £313 13s. Mr. O. C. Mazengarb attended, pursuant to a suggestion which His Honour had made, in order to explain the position from Mrs. Ward’s point of view. Counsel said he could not enter an 'appearance for defendant. The position was that Ward had lived on terms of perfect happiness with h,is wife, and left for San Francisco m June, 1922, for the purpose of obtaining a patent for a milk bottle holder. His Honour: He must have been a hopeful man. Counsel said that defendant had communicated regularly with the family until about May, 1923, but since that date, no letters had been received from him, and letters sent from New Zealand had been returned unclaimed, although the postmarks on the envelopes showed that they had been advertised. During Ward s absence, Mrs. Ward had. derived a small income from the. lotting of a home at Lower Hutt, in. which defendant had a small equitable interest. As defendant had not appeared, the present proceedings could not be effective outside New Zealand, therefore the only object must be to levy execution on this home at Lower Hutt and thus get Mrs. Ward out of it. Mr. O’Shea (citv solicitor): I object to this expression. His Honour: But what else can.be your object? Are you not proposing to lew execution on tho house? Mr. O’Shea: Yes, but we don’t like it said that we are depriving Mrs. Ward of her home. His Honour: That is only putting it another way. Mr. Mazengarb is putting his case as strongly as .he can from Mrs. Ward’s point of view. Mr. O’Shea: Well, I am only putting it as strongly as I can from Mr. Strand’s point of view. Mr. Mazengarb said that the statement of claim showed that the action arose in a peculiar way. The allegation in the statement of claim was that Ward had, at one time, agreed to indemnify Strand, and now the. city solicitor, without enforcing the judgment on Strand, was taking proceedings on Strand’s behalf against Ward in his absence. Counsel could do no more than place these facts before the Court and leave it to the Court to say whether the action could go on or be adjourned. Air. O’Shea said the position was that when tho milk scheme was started in 1919, guarantees were required from purchasers who were vendors. Ward was manager and wanted to get it through. (Reid was a friend of Ward’s and Ward wanted to guarantee him, but did not want to do so while an employee of the depirtment. Ho therefore "got Strand to do it. Reid was sued for money due for milk, and left tho country without settling up nnd forfeited some shares in a milkvending company. The corporation proceeded against Strand, and Ward then confessed judgment. An indemnity was given to Ward, and it was on that that Strand was suing. After evidence had been heard, Mr. O’Shea intimated that ho would bring the case on to-day, but he stated later that a settlement had been reached.