THE PROHIBITION BOARDINGHOUSE.

Lyttelton Times, Volume CXIX, Issue 14683, 14 May 1908, Page 3

THE PROHIBITION BOARDINGHOUSE.

/MISBONr. THE EXHIBITION ?>> COMMISSIONERS. SUBMITTEI)Tb THE SUPREME COURT. At a sitting of the Supreme Court in Banco yesterday, before Mr Justice Dcnnistou. Mr , George Harper (representing William Mitisou), and Mr Caesidy (representing the Exhibition Commissioner) appeared to present argument on certain questions, submitted by Mr V. G. Day. S.M., who is acting as arbitrator between the- parties, for a decision of "tie Siajcvfli© Court. • Mr Harper in. outlining the case, said | that on April 14, 1906, the General Manager of the Exhibition, Mr G S. Munro, wrote to the in charge of the Exhibition, giving particulars of a profposal made by Mr Minson, the chairijnan of the Home Industries Commit- | tec, for the provision of aceonunodaItion for the ischool children .visiting the Exhibition. ft was .tstated" in the letter that Minmn at first, suggested that the Government should erect a building at a cost of £IOOO, arid that he himself would pay for the cost of equipping the .building, £6OO. The charge was to !be Is 6d a day for .meals, and 6d a day for beds. The Exhibition authorities were to pav the cost of conducting the house and" we.ro to take a full 6d for sleeping accommodation from each ■ boarder until £SOO had been' obtained, and after that the • receipts from that source were to he divided with Minson. Miiison later made an alternative offer ti> undertake the whole cost of erecting, fitting and conducting the boarding house, the proceeds to be taken by himself, if the Commissioners would pay u subsidy of £SOO. That suggestion was recommended vby Mr Monro for acceptance in the letter referred to, as,, lie said, it would ensure to schoolchildren a groat educational opportunity, and would be of pecuniary benefit io the Exhibition by reason of the price paid by the cliildren for admissiou to the Exhibition. The payment of the subsidy was approved by the Goramisbionors, subject to the details of the building, drainage, and other arrangements proving satisfactory. That was the foundation of the position upon {winch Mr Minson went to arbitration, consequent upon the refusal by the Commissioners to' pay him. the subsidy agreed upon. . The arbitrator found that on. June 18, 1906, Minson "iarm;ed■" the undertaking out to Frank A. ■Cook for £I3OO, saying ■nothing to Cook about the £450 subsidy.

His Honor: He took it as a commission. ' '"■■■■■ Mr Harper said that Minson erected and, furnished a building, and on completion it was found there was accommodation for only 496 persons, instead of 500 as agreed upon. The Commissioners refused to take over the building as the arrangement entered into -.between Minson and Cook was made (-without ■ their knowledge. With the '•knowledge and consent of the Commissioners, persons other than school children, or their parents were accommo!dated in the building, and it was used las. an ordinary boarding house. Cook on three occasions to a'oeommo'date school children at all.' After 'November 1, 1906, the Commissioners iceased to act, Munro thenceforward controlling tho Exhibition as General 'Manager. Mr-Harper contended that apart .from any question of a countericlaiin for damages, the subsidy agreed 1 upon was to be paid to Minson on the i erection of the building, the payment being, quite" irrespective of anything -iwbicn might occur later in the carrying Owt of the scheme. The fact that the payment of £450 was ternied a "subsidy " showed that it was intended to give Minson, financial assistance in. erecting and equipping the building. I His Honor asked Mr Cassidy if* lie ■■contended that the subsidy was not duo j until the whole undertaking had been 'carried out.

l" Mr Oasskly said that that was his '.position. Minson undertook to. fit'd Jail' the money required to pnt the whole undertaking through properly. i Mr Harper said that the contention ■of the other side was that because Minion undertook, in consideration of receiving a,.subsidy., to take over the '(•vrhole concern, they were to wait till the end, and see whether lie was to 'forfeit the money or be penalised in the •liquidated sum of £460 for some minor 'breaches of the undertaking that ho "took over.

His Honor: The whole point is as to the breaches. The agreement was a wretchedly slack one.

Mr Harper said that the breaches were committed by Cook, and if tlie matter were referred back to the arbitrator he would have to go into the question. His Honor: It was a preposterously Idrawn agreement.

j Mr* Harper said that Cook made a ■claim for the subsidy, and on the mattier going to arbitration it was found [he was not entitled to it. His Honor said that on the three (occasions when Minson couid have made [the most money by not adhering to his '.jigreoment he did not adhere to it. If ihe chose to make money out of a breach of the agreement the amount lost to the other party by the breach should | be the measure of the damages. I Mr Harper said that it was a, nues[tioiii of how many children were refused accommodation. Tlie arbitrator was filling to go into that matter.' It was by tlie oilier side to deprive Snfinson of his subsidy or commission as .'liquidated damages before any assessment of the amount of damages had ibeen made. There was nothing to show that Minson was expected to personally carry out the undertaking- There was nothing, to prevent, the assignment. • and' the assignment was known V,o Munro. The questions submitted by the arbitrator wore as follow:—(1) At Jtvhat time was the subsidy payable? (2) Had William Minson power to enter into an. arrangement with Frank A. Cook without the consent of the Commissioners? (3) Did: the facts as stated constitute a waiver of the condition precedent to the payment of the subsidy? (4) Did the refusal of Frank A. Cook to accommodate school children during certain periods amount to a breach of contract, entitling the Ccmjiiisfcioneris to damages foT such breach, or if it was held under the fitfit question that the subsidy was not payable, .until the contract wa-s fully curried out. did such refusal constitute a.bar to the ■aid W. Minson claiming the subsidy?

Mr jCassidy contended that Minvoii lad no power to assign the. contract, which was based upon, personal confidence, and he had no right to enter into an arrangement with Cook without (•the consent of the Commissioners. Tlie ; icontnw>t was made with Minson, as chairman of the Home Industries Committee.

His Honor: Surely it was a remarkable position for the chairman of the (Homo Indnsitrios Committee to bargain with th(! Commissioners for his own ipersonal interest in a matter of that kind?

Mr Cassidy said it was quite clear that the scheme was originated by Minson < and that the contract was not an, assignable one The assignment to P. A. Cook was dated May 8, 1906, the name date as the arrangement was made with the Commissioners, Minson hand ing over all rights and responsibilities to Cook for a consideration of £I3OO. Minson's assignee failed to comply with the essence of the whole undertaking. Mr Harper had*said it' was a. minor breach, hut he hoped bis Honor would not take that view of the matter.

In giving judgment his Honor said that the dispute appeared to be the result of a loosely and carelessly enter- • ed-into agreement, by a mere letter from one party, instead of a power conferred on the other hand. if any proper agreement had been drawn up it would liave obviated the proceedings and placed the parties in an intelligible position. He had to decide if. under the circumstances, there was evidence which would justify,a refusal to pay the contractor part.of the consideration, for his contract. ft had been stated that the matter wa.s based upon personal confidence, but he could see no trace of that in the evidence. The letter set out that the contractor and contracteo agreed to do certain things. Both parties desired to make money out s of it. There was no evidence of personal confidence, and, that being so, the real question Was whether or not tho contract had been terminated at any time. The, contract Mas. in effect, carried through, with certain breaches committed on. the part of one of the parties, and it was permitted by the official representatives of the Exhibition to be carried through. He could not hold that the breaches went to the root of the contract, or that they justified the Commissioners in not carrying out their part of the contract. The Commissioners got what they bargained for, with the exception of the breaches. Minson could assign, and no provision was made to prevent him doing so. .The Commissioners had not proposed, during the tenure of the,agreement, to claim damages. He. thought, on the whole, that the subsidy would be. payable, as it was for the purpose, of erecting the building. It would be due at least during the erection of the building, the assumption being that it was to assist such erection. ' It was unnecessary for him to say when it was payable. In regard to question 2, he was inclined to think Minson had: the right to enter into an agreement to assign. He would not a nwer question. 3, as to the " condition precedent," because he did,not admit there was any condition, .precedent. They amount of damages for breaches of contract must be left to the arbitrator. Put shortly, Minson was entitled to the. subsidy, less such damages as the arbitrator should find arose, out of the conduct of the person' who was Minson's agent, or who was responsible.