MAGISTRATE'S COURT.

New Zealand Herald, Volume XLVI, Issue 14235, 4 December 1909, Page 5

MAGISTRATE'S COURT.

HOW MUCH FOR THE

FURNITURE?

A HOTEL TRANSACTION.

( The hearing of an adjourned case between Alexander Johnston, and William Gibson Rao, arising out of a change in tho proprietary of tho Empire Hotel in July last, was rosumed before Mr. C. C. Kettle, S.M., at tho Magistrate's Court yesterday. The plaintiff in the first case claimed £120 13s 10, as balance duo by the defendant in respect to tho lattor's agreement to purchaso the residuo of tho plaintiff's lease for £1250, and to take the stock and furniture at a valuation. Subsequently tho plaintiff entered an amended claim for £107 13s. Mr. Hall Skolton appeared for plaintiff, and Dr. Ramford defended. The bone of contention hinged upon tho question as to whether certain fittings were the property of the plaintiff to sell, or whether they were fixtures which should go with the lease. After evidence for the plaintiff had been heard, Dr. Bamford applied for a nonsuit, and the magistrate said ho was of opinion that plaintiff should be nonsuited. The opinion ho had come to after hearing tho case was that by a misadventure the word " fittings " had been omitted from the original agreement. Plaintiff gave his evidence in a straightforward way, but in giving it he made the admission that in the original agreement the stock, fittings, and furniture were included. Tho omission had evidently been the grounds on which plaintiff made his claim. It was to bo regretted that there had been such a loss, in expense and time over tho case. If there had been a mistake made it was far better to get. an arbitrator to settle it. Ho would nonsuit plaintiff with costs.

GUARANTORS' LIABILITY. In the case Mutual Lifo and Citizens' Assurance Company, Auckland branch, versus James McCullough, heard on Thursday last, and reported in our issue of yesterday, a transposition of names occurred, which gave an erroneous impression of the facts of tho case, which were actually as follows:—Tho company sued .Tas. McCullough as guarantor under a bond whereby ho and one George Carroll undertook to indemnify the company against any loss suffered by them in the event of any default on the part of one J. Pearoe, who was employed as a canvasser by the plaintiffs. Poarco accepted certain proposals for insurance on behalf of the plaintiff company with clients who subsequently allowed their policies to lapse, and it was a form in tho original agreement between the company and Pearco that, in the event of such policies so lapsing, any moneys received by hjm as commission on account of such policies should be refunded to the company when called upon to refund these commissions. Pearce had left Auckland, and the company called upon his guarantors, under their bond, to refund tho amount to the company. Part of the claim was admitted by defendant, but. he disputed the sum of £10, which he alleged had been paid to Pearce as salary, and was, therefore, not recoverable under tho bond, because it was not money to be " earned as commission." In the meantime George Carroll, land agent, had been added as a defendant at, the request of counsel for tho defendant McCullough (Mr. Denniston), he being held to be equally responsible for the guaranteed sum. Dr. Barnford appeared for the plaintiffs. I he magistrate reserved his decision till yesterday morning, when he pave judgment for the full amount claimed, with costs against defendant, holding that tinder the terms of the agreement the fact that an amount of £1 p Gr week was stated to bo paid /as a l»onus did not prevent the company advancing such sum out of moneys to bo earned a? commission, and that such weekly pay should not be held under the agreement to be a salary.

CLAIM FOR COMMISSION. The manager of t'-e Great Northern Pronortv Agency, W. B. Stephens, sued Mrs. IT. .Tonkins for £3 commission, alleging that he had sold her confectionerv business to Mrs. Elizabeth Fletcher for £60. Mr. G. W. L. Robinson appeared for the plaintiff, and Mr. A. E.. Skelfon for the defendant. Stephens gave evidence that, ho was an estate agent, and, had received verbal instructions from Mrs. H. Jenkins to sell her business. . ; The Magistrate: I suppose you did not mention commission to the defendant. Plaintiff: I introduced mvself as an agent. » . ■ The. magistrate said he had sat on the Bench for 20 years, and had hardly ever had cases before tho Court in which transactions of this kind were carried out in writing. In this case plaintiff had received no written instructions from defendant, and had failed to prove that he had received verbal instructions. He "Would, therefore, give judgment for the defendant with costs.

JUDGMENT BY DEFAULT. Judgment was given for plaintiffs with costs in each of the following cases-— E. Moran v. Michael Mahon, £7 2s 6d>" Andrew Eriekson v. D. K. Porter, £4 3 3 '