MAGISTRATE'S COURT.

New Zealand Herald, Volume LX, Issue 18388, 2 May 1923, Page 7

MAGISTRATE'S COURT.

BUSINESS SALE DISPUTE.

MINER PAID TOO MUCH.

v Decision was given by Mr. ;J. W. ; Poynion, S.M., in the Magistrate's Court yesterday ■; in V an ; ; action;,; for-; damages : ; arising , from v the : sale and,; purchase ■■■ of a greengrocery Vand .confectionery -business ;in Hobson Street, brought by -Thomas ■ William Parsons. (Mr. V Dickson) - against Francis Oassidy; (Mr. Butler). . Finding the stock, : 'fittings, and takings not . -what he expected, he sued for, £200 damages. Mr. Poynton. said that before completing thev deal the; plaintiff ■.[ was ■ told that tha turnover, meaning ,vthe .. actual., takings,. were £28 to £30 a week. This' was told him ats an'inducement to him to purchase. He -found '■■■. they ; were V not more than ;£l2 a week. v The stock, he said; Was inferior, that in the window being wholly deteriorated in some .cases, and in others the bottles were ■ stuffed with V paper,; ; the sweets being only a layer around the centre paper; core. Defendant 'kept rio books, the trade being. ; cash > Tand no record -was {preserved of the weekly takings. In such a' case §a V; purchaser * must Vr el vr on the statement of the vendor, as there were no means of checking : it. ;".- As . usual in suchi'.'.cases, the evidence was conflicting, said the ■>. magistrate, ' but '•;' he must find that; the ; statement aa to ' the takings was not correct, and: was a material : misrepresentation, which induced the purchaser to buy, and was intended to do so. V " ;v It was contended by Mr. Butler that as the ; misrepresentation v was J not .alleged to have been a fraudulent one, the plaintiff's remedy was one for recission of contract, not ; for damages. - ; After ;- quoting V, references on this point, Mr. ; Poynton said ; "Plaintiffs only remedy is damages, and I" cannot see that it matters whether he alleges ? fraud or not. ;V; He alleges -- misrepresentation '■ and has -i proved 'it. ; . In the other parts of the ; claim - I Vam, doubtful about 1 misrepresentation. Window shows are not what they seem and■ are not intended to v be. The v fittings ;andf other stock were not of the value paid '■■ for them, but no express declaration of: their value was made beyond Baying they were' insured ; for £75, which ; was true. '; Plaintiff was a miner and neither, he nor his wife knew 'anything about the business. He relied on the defendant implicitly in all statements about it. ; s He paid far too much for it." ,'.; : ;;1-:;;'V' " x -

In conclusion, Mr. , Poynton ; said that allowing for the sudden falling off in trade as being due to change of ownership, he could not find that the takings on } a reasonable computation could have V been more than about £23 a; - week. y This greatly reduced the value .of plaintiff's investment. ; Judgment was for vplaintiff for £75 and costs. Security, for appeal was .;fixed at £20, plus amount of judgment and costs. ' . i CLAIM FOR OVERTIME FAILS. » An unsuccessful claim for (payment ' for overtime was made by •W. G. Gray * (Mr. Bartleet)jv;; chemist's assistant, ■ 'against J. Guuninghame (Mr. Terry), chemist and optician, of Taihape, before Mr. W. R. McKean, S.M. The. amount claimed was; £70 13s 9d, alleged to be due for 377 hours overtime while in defendant's employ. -; Plaintiff had been employed -at £6 a week as manager of a shop.; in Auckland owned by defendant. ; Some time after the arrangement . plaintiff wrote to i defendant regarding the : hours and the question of overtime. Be contended that he received no reply. Subsequently defendant sold. the business ; and plaintiff made the .claim,.7for -overtime. V Defendant contended that he replied to plaintiff's letter, telling him to curtail his hours so as '.'. tol comply V with ; the ; requirements .of ■ ' the law. vAs he heard nothing further 'he considered this had been done. . The business did not warrant overtime. V : :

: The magistrate, in giving his decision, said that plaintiff was very much to blame for not having a definite* arrangement as to hours and rates of pay. Mr. McKean said he had no reason to disbelieve defendant "when he said he wrote that V letter, and he held that plaintiff was not entitled to ' recover the amount claimed. V Defendant was allowed costs. •-.'-!.