A CLAIM FOR DAMAGES.

Evening Post, Volume LXVII, Issue 128, 31 May 1904, Page 6

A CLAIM FOR DAMAGES.

• STRONG COMMENTS BY THE JUDGE. "A TERRIBLE EXHIBITION," Tho caho of Arth.nr Kbenczer tichultz v. William Kelly, 'chum £201 damages for alleged failure of defendant to fullil an ,-igraement as to helping plaintiff to get a wholesale licence, was continued yesterday aftewoon nnd to-day before Sir. Justice Coop«r. Mr. West on appeared for plaintiff, and Air. Wilfoid for defendant. Defendant had raid to plaintiff a lenso of premises in Upper \villk>-!>tiect together with a grocery and wholesale wine, spirit, aud bottling business carried on therewith, with stock-in-trudc and goodwill. Plaintiff alleged that thore was a ■verbal agreement that defendant was to surrender his wkolonnle license and do all acts nccctisary to secure in lieu of it a Ijcenso for plaintiff, to allow plaintiff to combine the wholesale wine, spirit, and bottling business as plaintiff wu» compelled to do under the lease. Defendant did not carry out this agremont. Thu defence was a denial of the agreement. Tlio main point was whoUier the sum (£10) that plaintiff whs to pay dofondant for the license, a paired or did not appear, in tho htock-slici-t that passed »t the time of tho sale. Plaintiff maintains tlfttt it was in the stock-sheet as a £10 itvm, and that he bought tho license along with the rest' of the purchase. Defendant maintains that tl» licenwo was not in the stock-sheet, and wns a matter of sepirato sale. > His Honour, in summing up, pointed out that plaintiff produced in Court a stock-sheet, which no swore was a corscct copy of the original stock-sheet ; in this copy thw £10 item appears. Dofemfcvnt produced in C.ourt a steck-shoet which be.. swum -was^t4Vu, original stocktjhoet, and in this the it«m aid not appear, and the 3 £10 Avas made up m quite another way. Ilin Honour interrupted Mr. Wilfordw address to tho Court, in order to point out this position, and to coinmcM thereon. It was evnlent tlwt either plaintiff and his aoivhad cdmmrttel perjury in untruthfully supporting tho copy of stock«beet, ookr k defendant and his mm had committed foi'gei^ ami perjury in respect of tho orrginal stock she^t. His Honoxir found It imposmblo to bjiv. on the demeanour of tiro witnesses, which sido wa» tollrng tho truth. Father and son on each sido wero equaHy interested, and tho indepond«nt evidence did not go far enough to enable him to decide. To decide in »uch a case where, tho e-videnco w«s evenly balanced was for a jury. > lie could not giw judgment on eit-hcr sido without convicting the other side of forgery or perjury. Tho onus wds on plaintiff to prove, hjfl case. Mr. Weaton addressed the Court with tho idea of (satisfying Uie onus. Tho point ho most emphasised was that, apart from the "evidence,, it was altogctJicr improbablo that plaintiff would tako up a lease bearing tho onerous covenant that the lessee UMist continue the wino and spirit and bottling business, unless plaintiff first made an j^eeemont with defendant to secure defendant's license. His Honour stated that the only written agreement put in said nothing about the license. Tho caso should be a caution to people to put their arrangements in writing. Tho arffienky arose through plaintiff's not seeing that what he now ,suid was tlie bargain, was put in writing. In view of what he bad pointed out would be fchc effoob of giving judgment for eitlter plaintiff or defendant, he would tako the courao of non-saitiflg pjwntiC, thue leaving him tlio opportunity , of taking tho caso before- another tribunal and a jury. A« tbevo had been gross and corrupt peri'ury, or forgery, on ono side or the ei/hcr, io wottkl order all exhibits, except the lease, to be impounded. Ht» Honour also referred to the ease as "a terrible exhibition." Costs were allowed against plaintiff on tho lowest aeafe, b» Uoootir pointing otrt "that he wished to avoid expressing an opinion in any way for or against either side.