THE COURTS—TO-DAY

Evening Star, Issue 15293, 19 September 1913, Page 8

THE COURTS—TO-DAY

SUPREME COURT.—CIVIL SITTINGS.--(Before His Honor Mr Justice Williams.) BATOER V. ROBERTSON. Mr AA . C. MacGregor for the plaintiff, John Batger: Mr W. A. Stout and Mr H. Macalister for the defendants, Robertson Bros., of Auckland. Batger sued Robertson Bros, for the nondelivery of 1.846 sacks of oats, the balance of 2.500 sacks purchased and paid for. Batger claimed £BBB. or iu the alternative damages for non-delivery. The case was tiled at Invercargill in June. The jury found that Batger was entitled to recover £BBB. Counsel for the defendants had moved far a nonsuit, and the whole case, including that motion, was reserved for further consideration, with lilcrtv for the Judge to draw inferences of fact if necessary. The defendants gave notice of motion for further consideration, asking that plaintiff be nonsuited cr judgment entered for the defendants. The case came before the Court in that form on the 15th August. To-day His Honor gave judgment. The concluding portion of the judgment is as follows ;

By the 37th section af the Sale of Goods Act the buyer is deemed to have accepted I the goods when the goods have been delivered to him and he does anv act in relation to them which is inconsistent, with the ownership of the seller. Here the goods were delivered to the plaintiff. They were placed on a ship designated by Hie plaintiff, which was bound to Great Britain. _ This was .done without the plaintiff informing the seller. The case for the plaintiff is that the goods throughout remained the seller’s goods. If that is so, what the plaintiff has done is to take an other man’s poods without his knowledge and ship them to the ether end of the world. That is certainly an act which in the 'uerds of tho stafiito is inconsistput with the ownership of the seller. The plaintiff’s case is that in respect of the 1.846 bags there was a failure of consideration, which gives him the right to rescind the contract and to recover hack his money. Such a right as stated in ‘Pollock on Contracts’ (Bth Edn., page 622) is subject to the rule that a contract, cannot bn rescinded after the position of the parties lias been changed so that the former state of things cannot be restored. It was not- until after the goods were on the high seas, far out of the reach of the seller and far from the warehouse where the seller had deposited them. thM the plaintiff refused to accept them. It was then j impossible to restore the former state of things. The plaintiff’s intention to rescind should, in mv opinion, have boon communicated to the defendants at the earliest opportunity, so as to enable them to take possession of their goods if they were so minded. If after such notice the defendants took no action the goods would have been at their risk. The statement of defence alleges that if the plaintiff ever had the right to reject the oats the plaintiff Mas lost the right and is estopped from staling that the oats delivered to him were not of the description sold. I think this defence has been made out. that the oats when shipped became the property of the plaintiff, ami -were at his risk when the Star of Canada was stranded op the 23rd June. J.lie case is one where there was acondition which has boon waived by the conduct of the buyer, and flic bnver can only treat, the breach of the condition as a breach of warranty. In such a case (he bnver lias a. right- of action against {be seller under section 54 of the Sale of Goods Act. Had such an action been brought-, so far as one can judge from the evidence and findings in the present rase, the damages would hn.ve been very biding. The present action is not. however. brought under section 54. but is an action for the non-delivery of the goods purchased. The ease is an exceedingly complicated one, and presents many difficulties. I am of opinion, however for the reasons I have given, that the defendants are entitled to judgment. Judgment for tlie defendants, costs as per scale on amount claimed, disbursements and witnesses’ expenses to be fixed by (bo registrar at Invercargill; 10 guineas'costs ot the motion for nonsuit. IN CHAMBERS. Probate was granted re Allan Rovd, Emma Jennings. Agnes K. Andepsop. Christian Archer, Patrick M’Gettman Chus. D. R. Ward. John Rlair, Janies MT.nnis, Edward Whelan. In the estate of Edward At . Alexander. Motion for directions for service (Mr Woodhouse) —Accordingly, as suggested* Letters of administration were granted rc Na| v '>'£ Rates. In the estate of Thos. Mawhinnev. de-ceased.—-Alotior. for appointment of administrator (Mr Duncan).— Accordingly. IN BANCO. P/U'SEY V. BEATTIE. Appeal from the decision of Mr Hutchison at- Oamani. Robert Beattie and Benjamin Smith Pausey reside in Christchuch. Beattie bought a farm at Otopopo and arranged with Pausey, his brother-in-law. to go and manage it till Beattie wont down. Pausey says it was arranged that ho should gethalf the profits made nut of the farm after paying interest of 5 per cent, on the existing mortgage of £3.000. Beattie says that Pausey was to he paid 55s per* week. Pausey sued Beattie in the Magistrate'll Court at Oamani, claiming £3 a week. The point was raised that if Pnusev's version was correct it. was a partnership, and that in any cas - e lie could not sue. for £3 a week, and that if the Magistrate took Pausey’s view of the contract the pay would he 35s a week. The Magistrate decided that. Pausey could recover on a quantum meruit on a contract of hiring in which the remuneration was to be half the profits made out of the property after paying 5 per cent, interest on tho existing mortgage.

Beattie now appealed, on tho ground that the determination of the Magistrate was erroneous in point of law and. fact. The specific grounds were that the Magistrate wrongly decided that Bausey could | recover on a quantum meruit on a. eon- j tract of hiring; that the finding of ihej

facts was not justified by the evidence -j that tho finding that there was a hiring was erroneous ; that the finding that the contract was put an end to by Beattie before the remuneration could bo ascertained was erroneous. Mr E. P. Lee, M.P., appeared for Beattie, the appellant; Mr P. W. Onglcy for Pausoy, the respondent. After argument, His Honor said ho would take time to consider. GEEN V. GEEN. Summons for maintenance under the Family Protection Act. ' Air F. W. Ongley for the applicant, Benjamin Geen; Mr .El P. Ijgg for Ernest Gecn, executor of the will of Janet Geen, deceased. Mrs Geen left an estate worth approximately £<loo, divided amongst 11 grown-up children, nothing being bequeathed to tho father. Ho is now 68 years of age and unable to work, and ho applied - for an order. Ho left the home in 1906. His Honor held that tho deceased’s will did no wrong for tho Court to rectify. If Benjamin Geen could not maintain himself ho could compel his sons to maintain him. Xo order was made. CITY POLICE COURT. (Before J, R. Bartholomew, Esq., S.M.) Drunkenness.—A first offender, who did not appear, was fined 10s, in default 48 hours’ imprisonment.—William Powell was fined 10s, in default 48 imprisonment. _ Drainage Board Cases. Robert Henry Wright was charged with executing certain drainage works otherwise than in accordance with the Drainage Board by-laws. Air Scantlobnry explained that the case had been previously adjourned so that the defendant could carry out certain works, and those works had now been completed, so the board were agreeable to the information being withdrawn.— I Tlio information was accordingly withdrawn was similarly charged, Mr Scantlcburv asked for an adjournment,- which was granted till Friday week. Application for' Affiliation Order— An application for an affiliation order was made against Peter Curry. The ease was adjourned till next Friday, bail being allowed defendant in one recognisance of £7O, and two sureties of £35.