MORE BOOK CASES.

New Zealand Herald, Volume XXIX, Issue 8889, 27 May 1892, Page 6

MORE BOOK CASES.

"CONTEMPORARY GALLERY OF ART."

At the Resident Magistrate's Court yester-

day morning, before Dr. Giles, R.M., Arthur Beckwifch Marsh sued George W. Owen for the sum of £9, being the price of a work published by him entitled the "Contemporary Gallery of Art," and which the plaintiff

alleged the defendant contracted to purchase.

Mr. E. W. Burton appeared for the plaintiff, and Mr. Thco. Coopor for the defendant. Mr. Barton said that this was one of a class of cases that were getting very familiar in the colony. It was a contract in which the plaintiff, a publisher in New South Wales, sued for a work ordered from him by the defendant. Canvassers were sent round with the work, which on the face of it seemed a very handsome concern, and was printed in Paris. Mr. Owen, after having ordered the book, refused to accept delivory on the ground that lie had settled with his creditors, and was not in a position to pay for it. Subsequently Mr. Owen was tendered the whole of the work, and upon his refusing to accept delivery the books were left on the pavement. However, the work was afterwards taken into Mr. Owen's office by somebody connected with it. John Robort Heck ley, delivery agent in the employ of the plaintiff, deposed that he saw Mr. Owen on business in connection with the Contemporary Gallery of Art" May 9, 1891, at his office in Custom-street. Witness told Mr. Owen that he wished to deliver some parts of the work, and that he had with him parts 1 to 25. Witness on that occasion handed Mr. Owen the order, and said that their agent had offered him parts at various times. Mr. Owen said "Yes, but I refused to take them." He also stated that he had had some difficulties with his creditors since he signed the order. Witness reminded defendant that the trouble with his creditors occurred previous to his signing the order. Witness said that if the defendant did not take the parts that wore offered him he would have to take the whole lot at the end of the delivery. Defendant then told witness that ho could not afford to take them, and he would not do so, adding that he had refused to take them long ago, and ho refused to tako them still. Witness then told defendant that ho would have to sue him. Witness saw Mr. O'Toole go into Mr. Owen's office, last Thursday, with a parcel, and saw him come out again with the parcel flying over his head. The value of the book was £9. There were about 100 subscribers to the work in Auckland, and 771 in Wellington. There wore 30 parts in the work, and the price charged was Gs per part. Cross-examined: Mr. Marsh was the plaintiff, and as far as witness knew, he was not in the colony at present. The work which was delivered to Mr. Owen, last Thursday, ho claimed to be the complete work. The contract stated that there were 120 photogravures in the work, and there were 120 photogravures in the complete "Gallery of Art." The parts as delivered to Mr. Owen were then put into the hands of witness, who stated that there were duplicate copies of section IV., and section I. was missing. The work was not of much value without being complete. Mr. Owen did not tell witness that ho had been misled by the canvasser. He did not say that he had rejected the work because it was not according to representation. By Mr. Burton : Witness had part I. in Court, and was prepared to deliver it to defendant. John O'Toole, book-canvasser and collector, deposed that he went to deliver the work to .Mr. Owen on Thursday, May 19, at his office, in Custom-street. Witness took the complete work with him, and, handing it to Mr. Owen, asked for a cheque. Defendant was shown the order, and replied that he did not want the work. Defendant said that he would not change his determination not to receive the book, and told witness to take the books away. Witness then left the work behind him, notwithstanding the fact that another man who was present attempted to make him take them away. The work was then placed on his shoulder and fell on the footpath as he went out. The parts remained on the footpath for about two hours, until some--body came out of defendant's office and took possession of them. About 15,000 copies of the work had been sold in Australia, and about 400 copies had been sold in New Zealand. Cross-examined : The first parts were delivered in Australia about three years' ago. Mr. Burton said that this was the plaintiffs case, except that they now tendered section I to Mr. Owen. Mr. Cooper objected to this being done. Dr. Giles said that it was understood that the delivery of two copies of section 4 was a mistake, and that the plaintiff was willing to rectify it. Mr. Theo. Coopor submitted that the plaintiff should bo non suited. Ho contended chat the plaintiff resided out of the colony, and that no power of attorney or authority from the plaintiff had been submitted by Mr. Burton. There was not a tittle of evidence to show that either Mr. Hecklcy or Mr. O'Toole had authority from the plaintiff to bring this action. Dr. Giles said that the bill of particulars purported to be signed by the plaintiff. Mr. Cooper showed that the signature to the bill of particulars was in a clerk's handwriting. Mr. Burton said that he simply appeared for Mr. Marsh. Mr. Cooper : By whose instructions? Mr. Burton : I decline to answer that. Air. Cooper : We are entitled to know. Mr. Cooper said that with His Worship's permission he would recall Messrs. Heckley and O'Toole, and would move on the same point at the conclusion of tho case. Mr. Burton objected. Dr. Giles considered that Mr. Cooper could call them as witnesses for tho defence. John Robert Heckley deposed that Messrs. Burton and Keesing had no'j been instructed to act by him. Ho did not know the handwriting of the person who signed the bill of particulars. The handwriting was like March's in some respects. Mr. Burton stated that the bill of particulars was signed by a clerk in his office. John O'Toole deposed that Mr. Burton had heen authorised to appear in this case by cable. He had not got the cable. He was an authorised collector of Mr. March's. Mr. Burton said that he was instructed by cable, and declined to produce his instruction, as it was part of his case. Mr. Cooper then pressed the point, that Mr. Burton was not authorised by power of attorney to appear on behalf of the plaintiff, who was at present out of the jurisdiction of the Court. Dr. Giles said that the point was rather a nice one, and ho would have to take time to look into it. Mr. Cooper said that there had been no delivery of the complete work. It was too late for them to offer to complete the work. One of tho questions was, what damages was tho plaintiff entitled to? George William Owen deposed that he had signed the contract about four years ago. The canvasser represented that the work was to contain biographies of the leading men in Mew Zealand, and he was at that time taking notes for that purpose. The photos in the work itself were far inferior to those in tho specimen copy shown him. The canvasser, when he waited upon witness, asked him numerous questions regarding his carecr, and had a secretary taking down notes, evidently with a view of publishing some biographical notes. Ho signed a contract, and some months afterward a youth called upon witness with one or two parte which he refused to accept on tho grounds that the pictures were inferior to those in the specimen copy, and he also felt that owing to tho state of his finances ho could not afford to take them. Some time last year he refused for a second time to take delivery of the work. On Thursday, May 19, he refused to accept delivery of the complete work. He had never been tendered delivery of the work in parts. It was his conviction that the parts were inferior to the specimen. On May 19, he had an invoice delivered to him, and this was the first notice in writing that he had received about this work. Mr. Burton then recalled John O'Toole, who stated that only one specimen book had been in use in the colony. The counsel on both sides then addressed the Court on the legal points raised. Dr. Giles said that ho would nob give a definite judgment in the matter until he had considered the question of Mr. Burton's authority to sue. Otherwise the de-

fendant was entitled to something, even if it was only nominal damages. In any case he was afraid that he could not fix damages very high. He would award some such damages with costs, unless he came to the conclusion that the plaintiff was nonsuited. He reserved judgment. Mr. Whitaker then stated that he appeared for Harry Bennett, the defendant in a case of a similar nature, which he wished to have adjonrned. The case was adjourned for a week.

Another case against Alexander Rose was set down for hearing, and was adjourned for three weeks, Mr. Theo. Cooper appearing for the defendant.