LAW SUIT FOLLOWS OPENING OF LOUNGE

Manawatu Times, Volume LIII, Issue 6536, 17 February 1928, Page 7

LAW SUIT FOLLOWS OPENING OF LOUNGE

Rosy Proprietors Allege Breach of Agreements ALLEGATIONS OF INTIMIATION Contending that defendants had broken an agreement not to rc-start in the same lino of business for three years anywhere within ton miles of Palmerston North, Michael and Catherine O’Sullivan, proprietors of the Kosy Lounge, Palmerston North, petitioned in the Supreme Court yesterday for an injunction and damages from Samuel Kaliel Murray, restaurant proprietor, Palmerston North. Plaintiff set out in his claim that in July, 1926, he purchased defendant’s interest in the Kosy Lounge, goodwill and fixtures. On December 8, 1927, Messrs. Murray Bros, commenced bush ness in premises in Palmerston North known as the Eoyal Dutch Lounge, and it was submitted that defendant and his wife, in breach- of the agreement entered into between the two partis supervised the fitting up, stocking and furnishing of- tho lounge and since then had been engaged as principals, servants or agents in connection with the' business; that tho cutlery now used in connection with tho Eoyal Dutch was branded "Kosy Lounge.” Clause 11 of tho agremont, alleged to have been broken, reads: Tho vendor covenants that neither ho nor his wife shall carry on or conduct or be directly or indirectly concerned or interested or employed in any capacity in the business of restaurant room proprietors or confectioners in Palmerston North or within ten miles of tho Post Office for a period of three years from July 10, 1926. Plaintiff sought an injunction restraining defendant from continuing to act in breach of the agreement and £2OO by way of damages. The Defence. Defendant denied that ho was a partner of tho firm of Murray Bros., or that he had any interest in the firm or business except that he had manufactured and sold to Murray Bros certain furniture for the Royal Dutch Lounge. Defendant also admitted purchasing from Collinson and Son. cutlery bearing the words Kosy Lounge, but it was cutlery that plaintiffs had originally agreed to buy but had failed to do so.

Mr. J. P. Innes, who appeared for defendants, submitted that plaintiff could not secure both an injunction and damages and quoted authorities in support of his contention. His Honor noted the objection, but mentioned that the practice had always been to grant damages for past breaches and an injunction against further breaches. Plaintiff’s Story. Michael O’Sullivan, in evidence, stated that he had frequently seen defendant superintending the furnishing of the Eoyal Dutch and Murray had been there • frequently since the opening of the lounge. On another occasions, witness said he saw defendant and his wife come out of the Eoyal Dutch and secure tho premises for the night. After tho opening plaintiff said he also saw defendant giving a signwriter instructions about ono of the Royal Dutch signs. As for as he knew defendant did nothing else- for his living. Plaintiff produced a record of his daily takings for December 8,9, and 10, of 1927 (tho Eoyal Dutch opened on December 8) and compared them with tho same dates of 1926. The drop in takings was approximately half.

To Mr. limes, plaintiff stated that there may have been some small lounges that had opened since December 8, but they -wouldn’t make any effect on the Kosy takings nor upon the Koyal Dutch. The trade was a fluctuating one. Maurice John O’Brien, lorry-driver, of Palmerston North, stated that the furniture for the Eoyal Dutch arrived from Wellington by rail on November 25, addressed to S. K. Murray. There were 54 packages. Witness said he was in the lounge on the opening day and saw defendant there writing on a card. On a subsequent occasion (a Sunday) witness said he saw defendant closing the doors of the lounge after two cleaners had finished. That was not the only occasion he had seen defendant at the Eoyal Dutch. Witness said he was also in the company of plaintiff when Mr. and Mrs. Murray had closed up the Koyal Dutch for the night. Aubrey Skilton, electrician, of Palmerston North, stated that while in the Eoyal Dutch on the evening of December 14, defendant and his wife came into the lounge, defendant going through to the kitchen and Mrs. Murray going behind the bar. Witness did not take particular notice as to whether Mrs. Murray served customers but defendant came out from the kitchen with his coat off. George Blair, storeman, of Palmerston North, corroborated the evidence of the witness O’Brien ns regards seeing defendant in the Eoyal Dutch Lounge at work. intimidation Alleged. J. A. Lissington, borough inspector, told the Court that during a visit to the Eoyal Dutch prior to the opening, he heard defendant instruct a plumber to alter a sign and it was done. During six subsequent visits witness said he saw defendant there four times. Witness further stated that on Tuesday last defftftdant met him at tho

borough' offices and shook hands, remarking-, “Aren’t we friends.” “I said yes,” added witness. “Defendant then walked with me along tho Square to the Union Bank corner and tried to pump me as to what I was going to say» When he left me defendant shook his fist remarking: “I’ll get even with ydu.” Continuing, witness stated that onWednesday a Mrs. Harris, employed at the Dutch Lounge, called at his house, saying: “I have come to put you wise. I overheard Mr. Sam and Mr. Fred Murray talking about what they were going to do with you.” To Mr. Innes, witness said the Eoyal Dutch building had been altered to suit, the requirements of the lounge and they had to be licensed. ■ Marie G. Harris, employed at the Eoyal Dutch, said she went to see Mr. Lissington as a result of overhearing a convocation between defendant and his brother Fred M.-rray. Witness said she knew the witness Lissington and not wanting to sec him in trouble, thought she would warn him. ,“I went up of my own accord,” added witness, “out of a good heart.” -Mr. Innes: Wore you .asked by any of the Murrays to go and sec Lissiugton? . Witness: No. Emma Hartley, employed at the Kosy Lounge .and formerly of tho Eoyal Dutch staff; said that defendant used to bo at tho. Royal Dutch about four times a week and his wife also. Mr. Fred Murray eras in charge. , This concluded plaintiff’s i;asc. Counsel Accepts no Responsibility In opening defendant’s case, Mr, Innes intimated that ho accepted no responsibility for his client having endeavoured to interfere with tho witness Lissington and ho would offer no apology because that class of conduct was not to be tolerated. It was probably more the act of a stupid, thick-headed donkey because defendant should know the procedure of the Courts in New Zealand. "The Defence. Defendant, from the Witness box, told tho Court that he was in the furniture trade in Wellington before coming to Palmerston North. After ho sold the Kosy Lounge to plaintiffs ho went to Wellington where he stayed for about 12 months, and then returned to Palmerston North, talcing up <v furniture factory until December 19. Ho closed down then because ho was offered a position as manager of a place in Dunedin and was to take charge at tho end of January. Tho Eoyal Dutch was started by his brothers Fred and Jack, and witness denied having any interest in the concern. Witness had sold his brothers tables for tho lounge but had never assisted them nor had he been employed there. The same could be said about witness’ wife. To Mr. Onglcy, witness stated that he was working in his factory up to December 19. He denied that he ha? let cleaners off the premises one Sunday morning nor had he taken off his coat' in the lounge when it was open. His Honor: Is what Mr. Lissington has said about you trying to interfere with him, true? Witness: Not all. I asked him if wo were still friends. % His Honor: Did you say. you would get even with him? Witness; That ij not true. His Honor: Let jne advise you not to dabble with witnesses on tho other side in future, or you will get into very serious trouble. ■ Wardia Murray, wife of defendant, denied having any interest in the Eoyai Dutch nor having worked there at any time. Fred Murray declared that he and Jack Murray were the only ones with an interest in the Eoyal Dutch. Sam Murray, tho defendant, had no interest whatever. Hazel Morgan, employed at the Eoyal Dutch since its opening, said she ted seen defendant and his wife on the promises svcral tiinss but neither had been working there at any time nor had thy given orders to any one. Mary. Hans and Thelma E. M. Chatfield gave similar evidence. Joseph BarsantL builder, who made the alterations to the Eoyal Dutch premises, said he received his instructions from Mr. Fred Murray on behalf of Murray Bros. This concluded defendant’s case. His -Honor remarked that while defendant’s actions were extremely suspicious, it was tho onus of plaintiff to prove tint cither defendant or his wife had carried on this business or was concerned or interested in it in any capacity. Because they had taken an interest in a brother’s business could not be considered a breach of an agreement. The case was adjourned until this morning to allow counsel to address tho Court.