SUPREME COURT.

Lyttelton Times, Volume XCVI, Issue 14310, 2 March 1907, Page 7

SUPREME COURT.

Friday, March 1. (Before his Honor Mr Justice Chapman.) | MILLION v. BELCHER. | The case of Millton and -another v. Belcher and others, claim £376 7s 4d, in consideration ■ of overpayments on the purchase of part of the Motukaika Estate, at Timaru, was heard. Mr Stringer, who appeared for plaini tiffs, stated the case. There would be 1 little dispute as to the facts. The plaintiffs bought from defendants an estate consisting of several blocks varying in area and price, and, after negotiations, offered a lump sum of £2900, the offer specifying certain sections of certain areas. These were set out by a private subdivision survey. , The agreement provided for a re-adjust-ment m the case of discovery of any variation of the areas, at various amounts, according to the various sections. There was a long correspondence regarding the settlement of the purchase, the plaintiffs offering payment of the full sum at once, without prejudice to their right of subsequent readjustment in the areas. The payment was made at last, and the present action was to reclaim over-pay-ment on the excessive area charged ( for, interest improperly charged, and ’ a small legal charge. The defence set up was that the parties agreed on the sale of 3098 acres more or' less, and that no representations as to the areas . and values of the blocks were made. This the plaintiffs now admitted, but as sauce for the goose was sauce for the gander, the defendants must now admit that any area above 3098 acres charged for was an excess, and plaintiffs would claim £155 10s in respect of 19ac lr 30p so overcharged and paid for at the rate of £8 per acre, which was admitted by the defendants as the rate of compensation. The question of interest arose by the fact that an offer of settlement of the full amount was provided for in the agreement. The offer was made, including interest to date, but waa deferred. The total interest charged was £250 0s lOd, and the interest up to the date of the offer was , £52 14s; plaintiffs, therefore, sued for the difference. A charge of £3 5s 6d for a legal document was also made by defendants and paid, and plaintiffs sought also the recovery of this sum. • Mr Russell, who appeared for defendants, admitted that hie clients had ’ overcharged by the amount sued for, £155 10s. 1 Mr Stringer proceeded to call evidence. I ' H. J. Beswick stated that he acted as plaintiffs’ solicitor in this action. He i put in a letter offering immediate settlement of the account. This was in effect declined except under certain conditions, and he afterwards again tendered payment. He read a long ’ correspondence on the matter, includ- | ing the letters which instituted the ; 1 Supreme Court proceedings. The settlement was effected in December, i some months after the first offer. Mr Russell cross-examined the witness on technical points. Mr Stringer called no further evidence. Mr Russell said the claim was mad© up of interest, £197 6s lOd; overcharge on land, £155 10s; compensation, which had been abandoned, £2O ss; and charge for the deed, £3 5s 6d; total, £376 7s 4d. He submitted that the claim for interest should come out as a whole, because plaintiff was in possession of the land and its profits, and did not give notice that the purchase money was allocated and idle, as the law required. He would only be entitled to interest after the date on which he notified the defendant (some time after) that he was paying interest 1 to the Public Trustee. He never gave any notice of the amount of money on which he paid interest, and aa a matter of fact ho borrowed £16,000 in November. On this he was possibly entitled to interest; but a man could not claim interest on money that was not costing him anything while ho was in receipt of the profits of the land. He then discussed the plea of defence, which he said had obviously been | hurriedly drawn by someone who had j not properly understood the posit Lon, , because, as it stood, it bound him to confess judgment for the £155 claimed. He desired to have the defence altered, and would contend that the plaintiffs were fully entitled to compensation. But if that were so, the plaintiffs would, it would be found, be compelled to pay for ten acres of land that had been washed away. ' Mr Stringer’s reply to _tho_ .point raised bv Mr Russell regarding interest was that equitable principles could not be raised, because the vendor had taken up an unreasonable and improper attitude, and it was entirely due to hie action that the bargain was not settled. . , . His Honor said he would take time to consider the case. The result would be judgment for the plaintiffs, but the amount had yet to be settled. IN CHAMBERS. In delivering judgment in the case of Nedwill v. The Colonial and Foreign 1 Agency Co., liis Honor said that the i plaintiff was a medical practitioner, and he complained that smoke from . the defendant’s factory chimney en- j tered hTs. house and permeated almost, every part of it. The disagreeable smell of smoke and a profusion of, ■ smuts on the plaintiff’s lawn wore also i a subject of complaint. The defendants previously had an iron chimney, which had been removed at the instance of the City Council on the com- ... plaint of the plaintiff. In a correspondence between the parties, the 5 defendants stated that they had con- ' structed the chimney in accordance with the by-laws, and while they did so they “ had as much right as Dr Nedwill to live in the country.” They - denied that their chimney caused the nuisance. . His Honor said tliat lie could not ignore the strong affirmative evidence of Dr Nedwill, liis daughter, his ser- '• vant and several others who testified to the fact of the nuisance with detail and circumstance. He had no hesita- j tion in coming to the conclusion that ■ the smoke emanated from the defen-1 dants’ factory chimney. A great deal , of the evidence for the defence was the purely negative evidence given by I persons who had not felt the nuisance. | <1 He was convinced by the affirmative evidence, which seemed to him to be supported by the surrounding circumstances and to some extent by the de--3 fendants’ letters. ' The defendants seemed to have relied on the by-law, though willing to carry the. iron chimney up to 45ft. He found that the smoke enveloping the house was of such a nature as to seriously interfere with the comfort of the inhabitants. He saw no reason to doubt p that the nuisance could be prevented by adequate measures. As to the noise complained of, the complaint appeared in the amended statement of claim, and represented a grievance which had probably grown out of the 1 irritation produced by the dispute over [j the smoke. Judgment would ho for 3 the plaintiff for £2 damages and an inn junction, the terms of the injunction to he settled by the Judge, if necessary. Costs were granted per 7 scale as if £2OO had been recovered, 1 and witnesses’ expenses and disbursements to be settled by the Registrar. All further questions would be reserved. In reply to a question, his Honor said that the injunction would take effect fourteen davs from date. Mr G. Harper appeared for the plaintiff, and Mr Harvey for the defendants. JOHN BRIGHTLING v. THE CHRISTCHURCH TRAMWAY BOARD. His Honor read tho opinion of the ~ Court sought by Mr H. W. Bishop as

arbitrator in terms of the Arbitration Act, 1890, as to the proper modo cf computing the value of a tramway held under several , separate concessions under the Tramways Act from several local bodies. In regard to the I Linwood Town Board’s concession, his Honor said it was admitted that I Brightling was entitled to the value of tho track as a track, less depreciation, and not merely to the value of the material as chattels. This did not carry a goodwill value, which was excluded by the deed, and he did not think that the answer required further expression. As to the Christchurch concessions, he was satisfied that the proper measure was the value of the material which Bvightling was entitled to carry away, and not, as in the case of the Linwood concession, the value of the track. Tho power to buy' any part of the line and to order Brightling to lift the rest destroyed its value as a line, and this was what was intended by tho deed. The arbitrator must, however, have regard to the convenience to the Board or getting an early surrender and the value of this to Brightling, which was equivalent to the present value or the net profits of running that part of the system regarded as part of tire whole for tho balance of the respective terms. The arbitrator must also consider the fact that it might be to the advantage of the Board that it had not to call on Brightling to make good the road after he had, in a hypothetical sense, taken up the rails and sleepers. If the arbitrator thought there was such advantage to the Board, Brightling should have a due allowance for this. In regard to the Avon Road district concession, this was acquired in the same way as the Christchurch concessions, and the matter came before the arbitrator in the same way. He did not think that the questions as put quite covered those which the arbitrator . would have to consider, owing to tho great length of Brightling’s term. -He thought the arbitrator should look at the matter in this way if he found that it would have paid the owner to work the lino by any of the authorised modes of traction, then looking at the great length of the term, he might treat it as virtually a line in position. If he found that by reason of the right to stop the Linwood line, of the large powers vested in the Board of constructing other lines, and of the probability that it would not have, suited the Board to assist Brightling by co-operating with him, but would have suited its purpose better to have refused to do so, then he I must regard this line and the goodI will attaching to it in the same way j as he (tho Judge) held he (the arbi--1 trator) must regard the city lines. Moreover the arbitrator must take into consideration that the owner might by holding the line have for an appreciable time obstructed the Board, and so held out for a higher price, supposing that pride had been" arrived at by negotiation and treaty instead !of arbitration. If the arbitrator i thought this consideration gave the vendor any position of advantage not counteracted by the advantages held by the Board, he might add a sura for this. Directions were given as to the basis upon which the amount to be paid to the Board for unexpired concessions was to he computed. Mr G. Harper, instructed by. Mr G. T. Weston, and Mr T. G. Russell, instructed by Mr Louglman, appeared for Mr Brightling and the Tramway Board respectively. PROBATE. Probate of the wills in the estates of the following deceased persons was granted:—-Daniel Dolan (Mr Neave), Michael M’Goverin (Mr Barrett), and J. K. Johnson (Mr Helmore). ENFORCEMENT OF AWARDS. In the matter of the' Arbitration Act, Gaskin and Gaskin, on the appliI cation of Mr T. G. Russell, an order was made for the enforcement of the award as on a judgment of the Court. A RULE NISI. ’ Mr Fleeher, on behalf of the District Law Society, applied for a rule nisi ordering a solicitor to show cause why he should not be struck off the rolls. The application i was granted, and his Honor directed ! that the matter should be heard at the first banco sitting following the tenth day after service. MISCELLANEOUS. In Barrett v. Mullins, pn tho motion of Mr T., G. Russelll service of summons upon one defendant was dispensed with. Mr Weston- appeared for the defendant. On the motion of Mr Slater, letters of administration were granted in the estate of William C. Marsh. Mr Upham moved for an order for seven days’ extension of time for filing a bill of sale. The order was granted. [Per Press Association.! AUCKLAND, Ma'rch 1. In the Supreme Court yesterday decrees nisi were granted by Mr Justice Denniston as follow:—William Hendry Sharp r. Louisa Maude Grace Sharp, husband’s petition, on the S grounds of misconduct with Harold I Shepherd, , who was joined, as co-re-spondent; William Porrett v. Jessie Ann Porrett, husband’s petition for desertion; Edward M. Taylor v. Fanny i Taylor, husband’s petition for desertion and misconduct with Charles Clark, who was joined as po-respondent; Catherine Watts v. Herbert John Watts, wife’s petition for desertion.