NO CASE FOR JURY

Evening Post, Volume CXIII, Issue 142, 20 June 1927, Page 15

NO CASE FOR JURY

FALSEHOOD IN CLAIM

DISAPPOINTED IMMI- : GRANT

AN ALLEGED WARRANTY

(From "The Post's" Representative.) '"": - LONDON, 4th May. A 'young man who sold up his home and took hia wife and four children to New Zealand in the belief, it was saidjvthat ha had been appointed a gas manager of Nelson City,- brought' an action a few days ago claiming damages'.for alleged breach of warranty, negligence,.. and fraud. The case was heard in tho King's Bench Division before Mr. Justice M'Cardie and a special jury.*

Plaintiff was Mr. William Edward Barnett, Grosvenorroad, Ald.ershot, an(l defendants were Messrs.-/V^i Coward and Co., Ltd., Buckingham Gate, Westminster, who denied the allegations. Mr. C. Gallop* for Mr. W> H. Moresby, appeared for plaintiff, and Sir Malcolm; Macnaughten, K.C., and Mr*- L. Graham H. Horton-Smith were for defendants.

Mt;: Gallop said plaintiff was a gas engineer, and after serving in the Army daring the war he started business in 1922 as an estate agent at Bournemouth, where his parents had a board-ing-house. Mr. A. M. Scott, a director of defendant company, came to the boarding-house as a. paying guest. : He told; Mrs;; Barnett that if ,he.could; I).e of any assistance to her .soir'heVwoUid he glad :to /help; him. Ityvyas. allegijd, by plaintiff that defendants had described 'themselves as London agents of city an<l -borough 1 councils in N*w Zealand. ttVas admitted; bj; defendants that they ; were agents ot city and berborough councils' in New Zealand for the purchase of goods,.but ( the. plaintiff said they represented; themselves to be agents in a ;f»r- wider sensci than that,; .that they were semiofficial individuals- in '.■ a position to . make statements on behalf of councils and institutions overseas. In June, 1923, Mr. Barnett had an interview; with Mr. Scott, as he desired to-better, his position. Plaintiff afterwards sent particulars of his qualifications to defendants, who replied by .letter, stating that the gas works at Nelson, ffew Zealand, were without a gas manager, that the works were in a bad state, and that-if anybody like plaintiff would put in an appearance,there and be prepared carry oftt the consulting engineer's yecommendtttions they would be prepared" to take him on.'' '' Be»dy; brain ■ skill will reap the harvest *?■'-and- '.'. Nothing venturer nothing wonV w*re phraser, tbsvfthe letter eontsuned. - Tho letter >vas signed by JjrJ: Scott- for -.tl: - defendant firm, and i$ ? aWd;'^T^hall be pleased to give^ybn * reeommindation." On 12th July,ithe ; de*er.lants wrote to thii Town ClerSfotiNelson; City, bringing to his nbtiefeViin application received from plairitliK^ho desired to make his homo in New Zealand with bis wife ana four childrenV;;ipji'i6th July plaintiff said he had another interview, wjth Mr. Scott oh the basis that if; he proceeded to New Zealand he could have a five years' agreement as gii engineer to Nelson City asa salary of £600 a year and emoluments olyiZOQ a year. Plaintiff said there -'-wasTv.no ■ question of it lieing a speculative :trip, and that vMr. Scott urged him to;go, as it was nov suggested recklegsly. Plaintiff got a rorin for an assisted passage, which was signed by the defendant company., as Londpai,agents for the^NeUipn^City}Council. V -\ DESTITUTE IN DOMINION. Mr. Barnett and his family sailed for New Zealand, on.- 22nd September, and when he arrived he found there was no appointment for him. He got temporary- work from 7th December, l?23;:ito, sth. February, .1924,, earning £76. { He was,, however, left in a destitute* !siiate, md had: to get the New Zealand' Government to provide funds for his return home in July, 1924. A letter sent by the Town.Clerk of Nelson to defendants.'. stated that there was no intention of appointing a gas manager; that the gas works had not been without a manager, nor were they in a-tiad;state;- The;letter added that defendants ;had no authority to act as agents for the Nelson Council. Defendants replifedSthat-it was made, clear that there was -in; no'sense an appointment. Counsel said, he had advised Mr. Barnett that in his opinion there was no foundations for alleging that Messrs. Coward orj Mr. Scott were actuated by the slightest improper .motive. He withdrew the aHegaton" of fraud, and expressed the view of plaintiff that the charge was • mistakenly made.; It was an error;of judgment, and ought not to have been miade. . ■'.. ,]■:,

Mr.V-Justice / M' Cardie asked what right iiiefendants had to call themselves London agents of the Nelson City Council.- / . . Sir Malcolm Macnaghten said they were the buying- agents of the Nelson Council. ■

Mr. Justice M'Cardie said Mr. Gallop was at liberty to withdraw, the charge of fraud, but the public interests must be guarded in a case* like that. The matter was of direct interest to thoee who might be inclined to go to one-of the great Dominions. Defendants 'said, ','We hereby undertake to find employment for the person nominated." ■.■■'■'■.-.

, Sir Malcolm Macnaghten said an official of the Emigration Department wrote the words, "Going out as an engineer to'the municipal gas works at Nelson," without the knowledge of defendants. Ho should not have done so without referring to defendants as to whether it was correct. It was

through a blunder by Officials in the New Zealand: Emigration Department that plaintiff was allowed to go out as an assisted emigrant. ' His Lordship said he did not approve, of the admitted obvious facts of the case. • . :.'•■. ' ■; .-. :; ■ ... POSITION FILLED. Plaintiff gave evidence. He said he, now held a Government-appointment in Nigeria. Mr. Scott gave him the impression that it was difficult to find a suitable person to manage the gas 'works. Mr. Scott asked him'to get a nomination form for an, assisted passage. He gave the form, which he did not fill up, to defendants, and a few < days later it was returned to him by post. He paid £127 for his passage, and'the;New Zealand Government paid £.92 10s: 'On arrival at Auckland the boa. secretary for emigration gave him a sealed envelope. It was a letter from-; the : Town, Clerk, of Nelson rev grettiiig that he had been disappointed. The official said it was useless.for him' to go to Nelson, as someone had been appointed .to the position of gas en- ' gineer while witness was on the voyage. He suggested witness'should return to England, remarking, k " We are prepared to book a passage' back for you, as we don't want a recurrence of this thing." It was a shock to.witness. His wife was unfit to go back then. lie went to the Waverley.Hotel, and tried to', get "work Vat. Auckland, but failed,.. He was. given tickets to take train to. Wellington, where he remained a few days in search of em-' ployment. Mr. Barnett said that the special damages he claimed amounted to £1403. Cross-examined by Sir Malcolm Mac-

naghten, witness said he. did not-read the letter from 1 Mr. Scott in the light that he was to go to Nelson and put in an appearance. Witness admitted he had sold his house at Bournemouth .before,he had hfeard-anything';about Nelson, f'';.:■'-:■',)''. !\~:.-.:-- ,--.v-.. ;':'('' ''■.-, Mr. Justice M'Cardie: "What do you mean by tolling the jury that ypuwere selling your house tn coneequenee.of an interview wijth Mr:'--:;Bcottf ''•;'lt'is|-a falsehood. Why did you tell' them that?"

Witness: "When did.l tell them that'/ ':'.■:: ■■'[;' ....'■:' \ ;^-

Mr. Justice M'Cardie: "You told the jury you sold the house because of the | advice of Mr. Scott, and you are actually claiming damages because you acted on that ■ advice. Now it turns out you had been trying to sell the house before you got the advice." Plaintiff: "I am sorry if I have told them; it has been a mistake. I gave all the papers to my solicitors." Sir Malpolm: "The house was sold on 14th June, 1923. The suggestion I make is that it was then you went to Mr. Scott to see if he could do anything for. you, and you told Mr. Scott you were not thriving: at Bournemouth, and wanted employment somewhere?" — "No, sir, that would not be correct." Mr. Justice M'Cardie: "Why"did you sell the house at Bournemouth?"—" Because I intended.to buy a business that I could live over, similar to the business I had--as Boscombe." . FALSEHOOD IN CLAIM. Sir Malcolm Macnaghten said that the same falsehood to which his Lordiihip had alluded appeared in the states ;nent of claim. .".....'.', .

His Lordship quoted from thestate•nent of' claim as follows: "By reason of the matters complained of plaintiff gave up his calling as an engineer, and sold his", house, and furniture at a loss."

Witness, in further cross-examina-ion, stated that at the Dominion Office he was told that defendants could fill up the form for an assisted passage as Agents for Nelson City Council if they were the agents. , ' Mr. Justice M'Cardie referred to a letter in which defendants wished plaintiff a safe voyage, "and.hope you won't be long in New Zealand before yon find yourself in a salisfactbry position." ' That^was not consistent with plaintiff's story of an agreement, added his Lordship: Plaintiffi "I did not read it in the light that I was going out to look for employment.^'. In re-examination, witness said' his house at Bournemouth had been put up to public auction before his first interview with Mr. Scott, but no offer was received. When he sold the house he, had no intention of selling the furniture, which was not sold until sth September,,!^. •.,:.. GOVERNMENT'S CLAIM. Mr. Cyril B. Burdekin, assistant'emigration Officer at the offices of the High Commissioner for Now Zealand, stated that plaintiff told him he had been offered an appointment as engineer at the Nelson municipal gasworks. He inquired 'about assisted passages, and witness gave him a nomination form. When it came back, signed by defendants, witness thought it corroborated plaintiff's statement, and he wrote on it, "Going out as engineer to muncipal gasworks, Nelson." That was for the | benefit of any officer who might handle the file at ft subsequent date. Tho New, Zealand Government had made a claim on defendants to reimburse them in tho cost put to by plaintiff. That claim had never'been abandoned.

In: answer, to Sir Malcolm, witness stated; that the claim was made on 29th October, 1924, and wholly repudiated on sth November, 1924. It had been held' in abeyance because other proceedings wore pending. ,; At the conclusion of plaintiff's case, his Lordship ruled that there was no case to go to'the jury. He added that, no injustice had been done to plaintiff by liis rulings. His Loidship sa.id ho thought the claim was baseless, and that the correspondence put in was wholly inconsistent ■with the allegations plaintiff made. • • Proceeding, Mr. Justice M'Cardie said::''l desire to add ono thing more which I think is a very grave aspect in this case. It is quite- clear both from the statement of claim and from plaintiff's evidence in tho witness-box that he was inviting tho jury to say thatihe sold his houso at Bournemouth

because of the statements made to him by defendants with regard to the Nelson Town Council./ That allegation in the statement of claim is baseless, and plaintiff's evidence, in my view, was evidence which he knew was false, because it was plain he had agreed to sell his house at Bournemouth before the Nelson Town Council waa mentioned to him, and he had arranged that his house should be offered for auction before he even saw defendants. • Yet plaintiff is putting forward to the jury what I describe quite plainly as a most fraudulent head of -claim.: No injustice has been done'by myi ftthdrawing the case from the jury.' There must, therefore, in this case,,be" judgment for defendants, with costs." . 85, Fleet street. : '' .