SUPREME COURT.

Lyttelton Times, Volume XCIX, Issue 11558, 20 April 1898, Page 3

SUPREME COURT.

CIVIL SITTINGS. Tuesday, April 19. (Before his Honor Mr Justice Dennisfcon. and a Special Jury.) FRIEND’S STEAM GBNEBATOE AND IMPOEOUS EUTTEB BOX COMPANY, LIMITED, V. DUNLOP. ~ , . ~ This was an action brought by Friend s Steam Generator and Imporous Butter Box Company, Limited, a company with its registered office in Ashburton, against Nathaniel Dunlop, of Wellington, commis- j sion agent, to secure specific performance or an agreement for the sale and purchase or a patent right. . , Mr Purnell appeared for the plaintiff, and Mr Stringer for' the defendant. Mr James Embling was chosen foreman of the jury. Mr Purnell Eaid.thfi.fc iu the statement pi claim the plaintiff company alleged that on Jan. 9,1897, the company agreed to sell, and the defendant to purchase, the patent rights of “ Friend’s Imporous Butter Box, for £IOOO, to be paid on or before March. 31, 1897. The defendant had paid .£l5O, and no more. The plaintiff prayed for an order for specific performance, or judgment for £350 damages, for breach oi the said agreement. In the statement of defence, the defendant admitted having made the agree--ment, but denied that its purpoi’t and,, effect were truly set out iu the statement' of claim, and he claimed leave to refer to the agreement. He also said that the invention was worthless, and not new in. New Zealand, and neither the company nor its predecessor in title was the true and first inventor. The defendant never got or took any benefit under the agreement. When making the agreement the plaintiff knew the matters aforesaid, butthe defendant did not, and the plaintiff' knew that ho did not. The defendant had, been induced to enter into the* agreement by fraudulent misrepresentation of the plaintiff company that the invention was a good and valid patent of great utility, that its utility had been established by t experiments, and that the butter box would preserve butter for a long time, and could be produced at a cost of 10s per dozen 561 b; size. The defendant counter-claimed for the £l5O he had paid to the plaintiff company. The plaintiff filed a general denial in reply to tho counter claim, and further said that all material facts were known to the defendant. The invention was initself simple, but in tho event of its proving successful, was capable of being of great value iu tho export trade. After some negotiations with Mr Friend a company was formed with a capital of £llOO. Mr Friend was to get £4OO in paid-up shares, and Messrs Dunlop and Crisp were to receive £IOO, with £lO paid up. The company was incorporated, and patent rights secured in three colonies. Mr Dunlop offered to buy the patent for £IOOO. The offer was accepted, and the agreement under which plaintiffs were now suing was entered into. The defendant, had paid £l5O in three instalments, and had left the balance of £BSO unpaid. It was for the defence to disprove the agreement. ' Mr Purnell called H. Friedlander for the purpose of proving tho agreement. Witness detailed the steps taken to form the company, but he was not personally conversant with the details of the-inven-tion.

Mr Stringer submitted that his learned friend had not laid enough evidence before tlxe Court for judgment to bo given upon it. The defendant’s case was that the invention was of no practical utility, and its worthlessness was not discovered until shortly before the action was brought. The alleged invention was a composition with which the insides of the butter boxes were coated, and would doubtless have been valuable had the invention been any good. He-(Mr Stringer) would prove that tho boxes had been prepared by Mr Chaffey,. at one time a director of the company. The ingredients mentioned in the specification would not form a composition at all, as some of the-ingredients became precipitated, and Mr Chaffey found it necessary to make two compositions and to apply several coats of varnish made of shellac and spirits of wine. The application of this cost more'than tho butter was worth. Mr Stringer contended that at the time of sale the plaintiff knew the invention to be worthless. Mr Stringer called N. Dunlop, who deposed that the ingredients mentioned in the specification would not mix, and that the cost of putting the composition on rendered the us© of the invention impracticable. The witness was cross-examined at great length by Mr Purnell, H. F. Chaffey, engineer, had coated three or four butter boxes with the materials mentioned in the specification, and had put on four coats of two separate mixtures? Witness did not consider the invention a practicable one, and had informed Mr Friedlander so in December. W. Barnett, chemist, deposed that the materials specified would require to be put on in two separate compounds. This closed the case for the defendant. Mr Purnell called as rebutting evidence: —Percy Harper Cox, manager of the Bank of Australasia, Ashburton, and a director of the company; Albert Roberts, secretary of the company; and H. Friedlander. Counsel did not address the Court,-and his Honor framed the following questions for the consideration ol the jury:—l. Is the said invention worthless and of no public utility? Answer—“ Cannot say; evidence insufficient.” 2. If so, was this known to the plaintiff at the time of the agreement with defendant? — “No.” 3. Was the defendant, when entering-into the agreement of Jan. 9, 1897, as fully cogni■shdt’oW' 'the‘Bb’ar'd' of Directors of the plaintiff company of the value or otherwise of the imporous butter,box ?—“lies.” 4. Did H, Friedlander represent to defendant that the invention was a good and valid patent of great utility, and that experiments had been made which established the utility of ths-said invention; and that the butter-box, the subject of the said invention, would preserve batter for a long period of time; and that the box could be produced at7a cost of 10s per dozen 561 b, or anypart thereof, and if so, which ? 5. If such representation was made, was it made by the said H. Friedlander fraudulently ? 6. If so, was it made by him - as the authorised agent of the company ? Answer to 4, 5 and 6—“ No. The defendant should have had all possible information, both as to practical utility'and value.” 7. If so, was the defendant .induced to enter into such contract through such representation?—“No.” His Honor gave judgment for plaintiff for £BSO, the amount claimed, with costs £8 Bs. LAW' NOTICES—THIS -DAY. IN BANCO. The following business will be taken in Banco at eleven o’clock this morning before his Honor Mr Justice Denniston. Be George Beatty, deceased.—Ward and Co., Limited v. Kent and others. Originating summons. Mr Lane. Justice of the Peace Act,. .1882, and re Edwards v. Scott. —Appeal from Stipendiary Magistrate’s Court. Mr Johnston, Vincent v. York.—For argument. Mr Stringer.