MAGISTRATE’S COURT

Evening Star, Issue 21284, 13 December 1932, Page 8

MAGISTRATE’S COURT

TUESDAY, DECEMBER 13. (Before Mr J. R. Bartholomew, S.M.) DEFAULT CASES. Judgment, with costs, was given for plaintiffs in the following cases by default :—Laidlaw and Gray Ltd. v. Fred. Weir, £6 13s, account stated; D. T. Kaler y. James Marshall (Oamaru), 10s, costs of claim; Moncrieff and Stewart Ltd. v. W. Miller (North Balclutha), £1 4s, goods supplied; Bing, Harris, and Co. Ltd. v. Thomas V. Gibson. (Waimate), £2B 12s sd, goods supplied ; Bing, Harris, and Co. Ltd. v. Stanley David Newman, £5 3s 7d, goods supplied; Wellington Woollen Manufacturing Company Ltd. v. J. P. Cooper (Otautau), £27 16s 7d, goods supplied; Reddells Ltd. v. Henry Evans (Tahakopa), £7 15s, goods supplied; Dunedin Motors Ltd., as assignee of A. H. Macpherson, v. E. Little (Invercargill), £3l 14s 2d, work done. ORDER FOR POSSESSION. 'Annie Mitchell Erridge proceeded against A. Wills to recover possession of a tenement situated in Lamg’s terrace, Sutherland street, and also £23 11s, rent due.—Judgment was given for plantiff by default for £23 11s, with costs amounting to £4 11s 6d, and an order was made for possession on or before December 27. CLAIM FOR COMMISSION. His Worship gave his reserved judgment in the case in which Eustace Lindon Macassey proceeded against the Radio Broadcasting Company of New Zealand (in liquidation) to recover £54 10s 6d for work performed at the request of the company. Mr J. M. Paterson (instructed by Mr J. S. Sinclair) appeared for the plaintiff, and Mr J. B. Callan for the defendant. The Magistrate, in the course of his judgment, said that plaintiff claimed £54 10s 6d for work and attendances performed for defendant company as a valuer on the valuation of the furniture and fittings of the 4YA broadcasting station of defendant company at Dunedin made on or about December 14, 1931, on stock valued as provided by the scale of mercantile charges fixed by the Dunedin Chamber of Commerce. No agreement as to remuneration was made by the parties, and the question to be decided was the amount of remuneration plaintiff was entitled to for his,services.

Reviewing the evidence. His Worship said that the fact that the Dunedin Chamber of Commerce, in conjunction with the Real Estate Institute, fixed a scale of charges for valuing furniture —a work which was only in part done bv members of the institute—did not by itself establish a charge payable by the public. These bodies had no legislative powers. The scale might be evidence of what was a proper charge, but until it became a matter of notoriety by being generally acted on there could not be said to be any recognised or established charge binding on the public. The scale could only become operative by its acceptance by the public who. were chargeable. This case was analogous to that of Young v. Dwyer, His Worship stated, which was a case of a similar claim for valuers’ fees based on an alleged custom. Mr Justice Reed stated: “ The question as to the existence of a custom is a question of fact, and must be proved by the person setting it up. The essentials are notoriety, certainty, and reasonableness. To prove notoriety the evidence must show that amongst the class of persons affected by it it is so well known that in any contract of a nature affected by the usage it must be taken that the parties must have in-vni-hd that the custom should form j art of the contract. As to certainty t!ic:c must he proof of the uniformity of the custom, there must be such a degree of certainty as to its operation as if the terms were embodied in the contract itself.”

Similar evidence of notoriety must be given of the Chamber of Commerce scale to render it binding on the class of persons affected by it. Mr Waters’s evidence that members of the Ileal Estate Institute charged this rate for any valuation of stock or furniture for any purpose was obviously a general statement of his belief, and not of actual knowledge, and was contradicted by express- evidence of other witnesses. Mr Macassey stated he had never departed from the scale in the case of hotels, but had never charged it m probate valuations. Mr Little’s evidence, which was particularly valuable in view of the number of valuers employed by him, including members of tin Real Estate Institute, said this scale had never been charged, and in fact he had no knowledge of its existence. Similar evidence was given by Mr Hayward. It had been pointed out that a large part of' such valuation work was done by other than members of the Heal Estate Institute. It appeared, therefore, that the Chamber of Commerce scale for the valuation of furniture was not only not generally acted on, but that even its existence was unknown to those extensively engaged in this business. So the scale could not be regarded as a customary or recognised charge governing this class of case. Plaintiff was entitled to claim for services rendered as on a quantum meruit, and in view of the evidence submitted His Worship found that the sum of £lO 10s was proper remuneration.

Plaintiff was entitled to costs up to the time this £lO 10s .had been paid into court, and costs amounting to £1 5s would be allowed. Defendant was allowed costs amounting to £9 3s, and the additional amount of one witness’s train fare, yet to be calculated. SEQUEL TO COLLISION. The Vacuum Oil Company Proprietary Ltd. (Mr D. Solomon) proceeded against Edmund Alexander Duncan (Mr J. M. Paterson) on a claim to recover £132 10s Bd, the statement of claim setting out that on July 27 last William Brinsdon, employed by the plaintiff, was driving plaintiff’s petrol tank wagon along the Main North road over Mount Cargill towards Dunedin on his correct side of the road, and on the business of the plaintiff. It was stated that the defendant was driving his motor car along the same road in the opposite direction, and it was alleged that while approaching the short-cut road to Waitati the defendant so negligently managed and drove his motor car "that it collided with plaintiff's petrol tank wagon. It was stated that, as a result of the collision, the plaintiff’s petrol tank wagon was seriously damaged, and the plaintiff had suffered much loss and inconvenience. Evidence was heard on behalf of the plaintiff, and the case is proceeding.