THE COURTS.—TO-DAY.

Evening Star, Issue 7749, 22 October 1888, Page 2

THE COURTS.—TO-DAY.

SUPREME COURT—IN BANKRUPTCY

(Before His Honor Mr justice Williams.) Re Mungo Hutton.— Motion for order of discharge. The Assignee said that this had been set down by Stout and Mondy for the 29th inst., and would therefore stand over for the present, pending, ho presumed, the return of Sir Robert Stout. Re George William Mason. —Motion for order of discharge.—This Was also ordered to Stand over, as the necessary papers had not been filed. , Re John Infield.—Motion for order of discharge. Mr Pinch appeared in support of the application,—His Honor saw from from the Assignee’s report that there was no opposition to the granting of the order.— The Assignee said that that was so. Debtor had been a steward on board ship and had perhaps got into a rather extravagant way of living, but that was all that could be said against him.—His Honor s I suppose there is no redson for suspending his discharge.— Order granted. Re John Draper. Motion for order closing bankruptcy and fixing date for application for order of discharge. Mr Solomon appeared in support of the motion. Order granted; to come up on the next sitting day after the expiration of fifteen days. . . , , RELEASING Orders.—Motion for order releasing the Official Assignee and directing the payment of moneys in certain estates to the Public Trustee. Mr Solomon appeared on behalf of the Assignee In support of this motion, and after evidence had beett_ given by James Smith, cadet in the Assignee’s office, to the erfect that the provisions of the Act had been complied with, Honor granted an order releasing the Assignee in respect to the following fifty-three estates: T. Austin and F. Lewis, B. E. de Lautour, G. P. Stewart, D. flrunton, G. M‘Kay, VV. A. Boulton, Charles Boulton, J. W. Duff, R. Johnstone, G. Hyndman, G. E. Dermer, W. Loggie, Elizabeth Thornton, A. Jack, D. Greig, W. T. Bunting, John Paterson, E, C. Morris, J. Alves, F. M’Callum, E. Landorf, J. Prentice, ,W. Renton, Neil M'Fadyen, Ross and M‘Neill, A. M‘Kinnon, A, Rutherford, P. Rankin, J. Callender, C. Nicholson, A. H. Smith, A. Murdoch, J. Crawford, J. Sandtmann, J, Collins, R. Melrose, James Curie, Blaikie and Malcolm, A. E. Mellick, E. Shecdy, W. Grant, 0. J. Thorn, G. W. Bridges, P. Daly, W. Bridgman, 0. Morris, W, Mason, Owen Mulhare, Chuie Foong, j. Spiers, A. A. Catomore, and C. Jacobson. —Mr Solomon asked that the Registrar should fix a lump sum for the Assignee’s costs, and His Honor directed that this should be done.

RESIDENT MAGISTRATE’S COURT,

(Before E. H. Carew, Esq., R.M.)

Lees v. Allen and Another.—ln this case, heard on Friday last, His Worship gave judgment as follows:—“ This is an action for damages for breach of contract for hon*deUvery of fifty tons bran. The defence to the action is that Moritzon, from whom Lees purchased, had no authority to sell except for cash, and that early in the day on which delivery was to be given Lees renounced the contract by telegram. Respecting the authority to sell, the defendants on August 10 wrote to Moritzson and Hopkiu as follows ‘ We can offer you fifty tons bran at 60s, delivery in fourteen days, subject being unsold.’ On the 22nd August Moritzson sold to Lees at the price stated, less 2i per cent, for cash within seven days of shipment. The evidence is that Where no special terms are mentioned it is the usage of trade that upon a sale of bran payment is to be made within thirty days, less 2h per cent, discount, or by bill at three months at the election of the purchaser. In Smith’s ‘Mercantile Law,’ p 119, it is laid down: ‘ But if ho be a factor in a sort of dealing or trade whore the usage is to soil on credit, then if he sell on credit to a person of good credit at the time, he is discharged and will be entitled to his commission, though such vendee may afterwards become insolvent, provided that the credit he gave was reasonable and usual, and that his principal was made acquainted with the transaction within a reasonable and usual space of time. I think, therefore, Moritzou acted within the scope of his authority. The validity of the contract does not, however, depend upon that matter, because certain correspondence passed between defendant and .Moritzon, which shows defendant accepted the contract subject to the terms being cash on delivery, and Lees telegraphed on the 31st August to defendant: ‘ Have arranged pay for bran, Timatu, as soon as shipped.’ Assuming then that the sale was for cash on delivery to the vessel, Lees expressed his readiness to pay at the earliest time| the defendant was entitled to receive payment. On the following day Moritzon and Hopkin telegraphed to defendant: ‘ Lees going to Timaru in Wakatipu, Monday; will take delivery of bran, and pay cheque.’ To which defendant replied on the same day: ‘ Decline cheque; must withdraw bran from sale.’ Of course the fact of being told by his own agents that Lees would pay by cheque would not justify defendant in renouncing the contract, although he might refuse to accept a cheque ; but there is no evidence that Lees even told Moritzon that he proposed to pay by cheque. I now come to the defence that plaintiff renounced the contract. The plaintiff’s telegram of September 1 reads thus: ‘ Am not going take bran now, after been offered again,’ To interpret the meaning of this I must refer to what had taken place earlier in the day, and there is considerable conflict of evidence about it; but the telegrams from plaintiff’s son to his father, which were not objected to as evidence, leave no doubt in my mind that his version is the correct one. They read thus: ‘Have seen Allen, Sajs bran is under offer. Will let me know at eleven.’ ‘ Allen thinks he can let me have twenty-five tons. Will let me know two o’clock. Shall I take it ? Address G. and T. Young.’ Then the plaintiff’s telegram to defendants seems to have been sent. The position, then, was this : On the 31st August defendants gave notice that they withdrew the bran from sale. On the 4th September they informed the plaintiff’s son they thoughtthey could let him have twentyfive tons. The son telegraphed to his father as to whether he should accept it, and I think it a reasonable interpretation that the glaintiffs telegram referred to the twentyve tons, not to the fifty tons; that he refused the possible offer of twenty-five tons of bran. The defendants’ repudiation of the contract on the Ist September remained unrevoked; and if they were, as they say, ready and willing to give over the bills of lading for the bran at any time after it wasshipped, it was their duty to have made it known to plaintiff, and in the absence of such notice it must be taken that they continued of the same mind not to carry out their contract. As to the measure of damages, it seems plaintiff could not at the time have purchased fifty tons for shipment by the Wakatipu at any price, and as defendants knew the bran was required by plaintiff for the Sydney market I think it fair to estimate the damage as the difference between what plaintiff could have purchased at in the Sydney market and the contract price, plus expenses—that is, what the bran would have cost landed at Sydney. The amount claimed, 30s per ton, seems to be within the mark. Judgment for plaintiff for L 75, with costs (L 9 10s). Commercial Property and Finance Company v. J, Matheson. —Claim, L 45 Os 6d, instalments of interest on mortgage.—Mr Kettle appeared for plaintiffs, for whom judgment was given by default. John Wells v. Alexander Graham.— Claim, L 5 4s fid, commission on sale of the lease of the National Hotel. Mr Fraser appeared for plaintiff; Mr Solomon for defendant.—Plaintiff produced a document by which defendant had authorised him to make an offer for the hotel, and said that he had charged at the rate of 2$ per cent., which was a low rate, the commission in such transactions varying from 2J to 5 per cent. Defendant had, however, demurred to the charge as being too high.—Evidence for plaintiff was given by James Glossop and Ormond Butler.—Defendant’s version ef the affair was that he was himself negotiating with Mr E. Wilson for the purchase of the place, and understood that what Mr Wells had done was merely the action of a friend, for which no payment would be required. He had signed the document produced, but did not know the contents,—Robert Wilson (one of the trus-

tees for the proprietor of the hotel) and James Samson were called on behalf of the defendant. —His Worship said that he could scarcely credit Graham’s statement that he had signed the document authorising Wells to act lor him without knowing what it was that he had signed; but the statement cut both ways, for if defendant was not capable of knowing what he had signed it was not improbable that he would apply to someone for advice in buying a business. His Worship thought that plaintiff was entitled to his commission, and judgment would be given for the amount claimed, with costs. Peter Leitch v. Mutual Agency Company. —Claim, L 4 14s 4d, balance of account for oats sold on commission by the defendant company. Mr Calvert appeared for plaintiff! Mr J. R. Sinclair for defendants. Plaintiff's case was that he was a farmer at Kuri Bush, and in June last sent ninety sacks of oats to the company with instructions to sell on his account. A week later he was informed by the company that the oats had been sold at Is 8d per bushel, and, Calling at the cilice a few days subsequently, he received a cash advance of LI6. When applying for a final settlement plaintiff was informed that sixty-six bags had been sold at Is Bd, and the other twenty four, being of an inferior quality, had realised Is 3d. Plaintiff sued for the balance alleged to be due on the basis of a sale all round at Is Bd* as originally stated by the defendant company. The Witnesses called by Mr Calvert were Peter Leitch (the plaintiff) and S. J. Loring (railway goods manager). —Mr Sinclair said that the case for defendants was this j That the oats were sampled oh coming to hand and a sale made at la 8d ; but when the bags dame to be handled it was discovered that a portion of the oats were of a very inferior quality and could not be delivered. When Leitch called at the office he was exceedingly anxious to get his money, but was told that a portion of the oats had not been delivered, and that the company could only advance what was estimated as the value. The company were willing to take the oats themselves at Is 3d, Some time after this the company were fortunately able to sell these oats at Is 6d, and gave Mr Leitch the full benefit of this sale, which was the extreme value of these inferior oats. Defendants paid L2 4s 7d into Court, and disputed the balance, Evidence was given by Alexander Matheson (manager of the defendant company), fl. M, Driver, and Francis Carr (storeman), after which His Worship said that Mr Calvert had made out a pretty strong prima facie case, but it had been explained away—at any rate, toa largo extent. Plaintiff was clearly not entitled to get more than the oats sold for. It might be a question whether the company were right in selling the balance of the oats as they did; but, on the whole, he thought that the company were entitled to sell as they did, as the oats were not withdrawn from sale. Judgment would be for the amount paid into Court.—Mr Calvert asked for costs. The case, as submitted to him, was sufficiently strong to warrant him in taking proceedings. There were at that time discrepancies in the weights and in the accounts which had been explained to-day, but were not clear originally.—His Worship made an order that the costs incurred by plaintiff to-day should be paid. Sarah Wilkinson v. G. A. Tapper. Claim, L3B lls 7d. The statement of claim set forth that one John Morgan contracted to build plaintiff a house for the sum of L 280; that L2 per day penalty was to be deducted if the place were not finished by the 31st March last; that defendant, at the request of Morgan, agreed with plaintiff to complete the contract for the balance due under the original contract; and that, in breach of such agreement, the defendant refused and neglected to complete the said contract, and the plaintiff was compelled to have it completed at his risk and expense, whereby she suffered damage to the amount claimed. Dr Fitchett appeared for plaintiff; Mi Solomon for defendant. Evidence was given by the plaintiff and her son, H, M. Davey, and John Morgan, after which Mr Solomon applied for an adjournment, which was granted till Wednesday.

CITY POLICE COURT. (Before Messrs J. Roberts and J, Robin, J.P.s.)

Breach of the Peace. —John Beresford Fitzgerald was charged with committing a breach of the peace by assaulting a sailor named John Carter and knocking him down in Princes street on Saturday evening.—The charge was clearly proved, and accused was fined L 5, with costs, in default a month’s imprisonment with hard labor. Disorderly Behaviour.— Mary Sullivan was charged with behaving in a riotous and indecent manner in Princes street on Saturday evening, and also with assaulting Constable Ramsay while in the execution of his duty. From the evidence it appeared that the charge arose out of accused’s conduct iu connection with the assault in the previous case, she being in company with Fitzgerald and behaving in so riotous a manner that she had to be arrested. Before being overpowered, however, she managed to inflict a severe blow on Constable Ramsay’s eye that effectually blackened it.—Accused was sent to gaol for a month on the first charge, and on the second was fined 20s, with the alternative of seven days’ imprisonment.

Unseemly Conduct in a Church.—Two boys named Archibald Anderson and Ernest Lewis were charged with disturbing the congregation at worship in the King street Independent Church on the 17th inst. by putting out the gas.—The prosecution said that they did not wish to press the charge, but merely to have the boys cautioned severely, as the congregation were frequently annoyed by boys in several ways.—The accused were cautioned and discharged. Stray Animals. James Jennings was fined 2s fid, with costs, for allowing a horse to wander at South Dunedin, Oeorge Harrington was charged with allowing a cow to wander at Caversham, and was convicted and discharged. False Pretences. John Lewes was charged with obtaining from Joseph Feltham at Mosgielon the 11th inst. by false pretences the sum of 4s; also with obtaining from Annie Heath by false pretences the sum of Is fid; also with obtaining from Merton by false pretences the sum of 2s fid. Accused said he committed the acts while drinking, and was not aware of what he was doing.—The Bench convicted accused, and ordered him to come up for sentence if called on.