COURT OF APPEAL.

New Zealand Times, Volume XXXIV, Issue 5670, 2 June 1879, Page 2

COURT OF APPEAL.

■" ■ 1 1 (Before their Honors the Chief Justice, Judges Richmond, and Gillies.) HENDERSON V. NAPIER HARBOR HOARD. Mr. Maoassey continued his argument in this case on Friday, the 23rd instant. He cited Lcmprell v. Breeny Union (3 Exch. 233) as an authority for the proposition that the payments of the items sworn to by Graham were made provisionally, and could not be applied by the plaintiff to extras. <:p Justice Gillies : That case was decided on the particular provisions of the deed, and on the fact that the payments were made generally. Mr. Macassey contended that in this case the jury had not found the payments specially. He referred to the letters of the Ist June, 20th October, 30th October, and 31st October, to prove that the extras were never meant to bo paid for without a certificate. Tho risks incident to the contract must fall on tho contractor. The orders were merely directions to the contractor. The concluding proviso of section 5 of the contract showed that a written authority from the Board was necessary.

Justice Gillies : That proviso only refers to things outside the contract. Mr. Macassey urged that there was no evidence of any authority in writing by the Board, or any certificate of the architect’s for the extras. The greater part of the work was done when the letters relied on by the other side were written. Upon the point that the verdict was preverse he contended that if the •riginal finding upon the 4th issue had been kept, the defendants would have been entitled to succeed, citing Poole v, Whitcombe, 3 F. and F. 70, 12 C. 8., 776. The ultimate finding of the jury was influenced by what took place after the first finding. Kimberley v. Dick, and other cases cited on the other side, proceed on the ground of a secret understanding, which disqualified the arbitrator from acting. The Court took time to consider its judgment. KAWATINA V. KINROSS. The case of Kawatina v. Kinross, the argument of which occupied the Court Friday afternoon, the whole of Monday, and Tuesday afternoon, turned upon the effect of a number of deeds relating to a block of land called the Wharerangi Reserve, in Hawke’s Bay. The declaration stated that the plaintiffs were grantees of Wharerangi, under a Crown grant under the Native Lands Acts 1865 and 1866, which contained the following proviso;— “ Provided always that the land hereby granted shall be inalienable by sale or lease for a longer period than twenty-one years from the making of any such lease, or by mortgage, except with the consent of the Governorand that they leased the land to Messrs. Gully and Morecroft on the 19th August, 1867, for a term of 21 years, from the Ist January, 1867. On the 13th September, 1867, Gully and Morecroft assigned this lease to Mr. Kinross. On the next day Mr. Kinross assigned to Mr. Braithwaite, and on the' 2nd June, 1869, Braithwaite, Gully, Morecroft, and Kinross joined in assigning to Kinross and Burnett. The plaintiffs then alleged that they had never been paid any rent whatever, and claimed arrears from the Ist January, 1868. The defendants pleaded severally, but their pleas were substantially the same. They' set out an agreement in writing, dated the 30th July, 1869, signed by the plaintiffs, in which agreement it was stated that the plaintiffs had agreed in consideration of the sum of £586 to accept a surrender of the old lease, and grant a new one for 21 years from the Ist June, 1869, at a yearly rent of £IOO. Each plea then set out at length a deed made between the plaintiffs and the defendant Barnett, dated the 16th August, 1870. It recited that the old lease had been assigned to the defendants, who had paid to the plaintiffs £585 on the Ist of June, 1869, in consideration whereof the plaintiffs granted to the defendants a new lease at a reduced rent of £IOO. It also recited that by a deed dated 30th August, 1869, the plaintiffs agreed, in consideration of large advances made to them by the defendants, to pay interest on the advances, and to allow the rents to remain in the hands of the defendants until repayment of such advances ; and that Kinross had assigned his interest in the new lease to Burnett. The deed then went on formally to grant a new lease for 21 years at £IOO per annum from the Ist day of June, 1869, and contained a covenant by the plaintiffs to repay to Burnett the advances, and authorised him to apply the rents in liquidation thereof. To this plea the plaintiffs demurred, stating as points of demurrer that the new lease pleaded was really a mortgage, and therefore required the consent of the Governor, and that the plea did not aver that the deed had been interpreted to the natives, or that the formalities prescribed by the Native Lands Acts for the attestation of deeds by natives had been complied. The arguments as to the necessity ot averment of the formalities were founded almost

entirely upon technical rules o£ pleading. A point not mentioned in the Supreme Court was also argued at great length, namely, whether from the deeds set out in the pleas a surrender by operation of law of the old lease could be taken to be averred at a date sufficiently early to prevent one year’s rent under the old lease from having become due by the defendants. The only question of any gene Val interest was whether the second lease amounted to a mortgage. • 'i’he plaintiff’s counsel argued that the deed was really a Welsh mortgage and an ingenious evasion of the clause in the grant restricting such alienations.

The Court, however, without hearing defendant's counsel upon this point, decided that upon demurrer the deed must be read only as a lease ; there being no evidence (even if any could be obtained hereafter) to show that it was intended to operate as a mortgage. The Attorney General (.\fr, Stout),_ Mr. Ilees, and Mr. Hell appeared for the plaintiff, Mr. Travers and Mr. Chapman for the defendant I hirnett, and Mr. Conolly and Mr. Chapman for the defendant Kinross.

The Court took time to consider its judgment upon the remaining points.

Thursday, Mat 29. LAbLEIt V. JiROODEN AND OTHERS.

This was a special case stated for the opinion of the Court under the 19th section of the Court of Appeal Act. The defendants were, in October, 1875, the owners of the ketch Amateur, lying in Lyttelton harbor, and instructed Messrs. Heywond and Son, of Lyttelton, to sell her for £3OO. Messrs. Ifeywood sent to the plaintiff on the 23rd October a telegram in the following terras :—“ Will you buy ketch Amateur ? Carries 22,000 foot. Equal cash nett £360.” To this the plaintiff replied, “ Hope to see you Monday. Think Amateur would suit.” Negotiations took place after the dates of these telegrams between Messrs. Hey wood and the plaintiff, who went to Lyttelton and saw the ketch, and eventually offered £2OO for her, which Messrs. Hey wood were authorised by the defendants to accept, and accordingly a formal bill of sale was signed by the defendants, transferring the vessel to the plaintiff, which contained no mention of her timber-carrying capacity. The plaintiff soon afterwards found that the ketch would not carry more than 16,000 ft., and complained to Messrs. Heywood, who wrote to the defendants, enclosing plaintiff’s letter, and informing them that they (Messrs. Heywood) had stated to the plaintiff on the authority of the captain of the ketch that she carried 22,000 ft. To this letter the defendants answered insisting on the truth of the captain’s statement, and forwarding a declaration by him to the effect that he had carried 24,000 ft. in her. The defendants did not, in this letter or any of the subsequent correspondence, expressly state that Messrs. Heywood were not authorised by them to warrant the carrying capacity of the vessel, but they declined to recognise the plaintiff’s claim for compensation on the ground that the statement made by Messrs. Heywood—“ Carries 22,000 ft.” —was true. The plaintiff brought an action for breach of ■warranty, which came on for trial in the Supreme Court, at Christchurch, on the 15th April, 1878. It was proved that the vessel would not carry 22,000 ft., but no evidence was adduced of any custom in the timber trade to warrant the carrying capacity of vessels in a sale. The plaintiff is himself a timber merchant. In his evidence on the trial he stated that he saw the vessel during the negotiations for purchase. She was empty. He did not see the register or know her tonnage, but he -compared her in his own mind with another vessel which carried 23,000 ft. He swore that he relied entirely on Messrs. Heywood’s statement that the Amateur would carry 22,000 ft. At the close of theplaintiff’s case on the trial it wns agreed that a verdict should he entered for the plaintiff tor £2OO subject to the opinion of the Court of Appeal upon the special case (of which the above is an abstract), the Court were to bo at liberty to draw such inferences of fact as a jury might. Mr. Bell, for the plaintiff, contended firstly, that the telegram of the 23rd October amounted to a warranty, and was not a mere representation, citing Benjamin on Sales, 2nd ed., p. 499; Broom’s Commentaries, sth ed., p. 344 ; Taylor v. Bullen, 5 Exoh., 779 ; Shepherd v. Kain, fin, and Aid 240. Secondly, that it was not necessary that the warranty should be set out in the bill of sale, citing Stueldey v. Bailey, 31 L.J., Exch. 483 ; and thirdly, that Messrs. Heywood and Co. were agents authorized to warrant, citing Benjamin ou Sales, p. 507 ; Eeuu v. Harrison, 3 T.R., 759 ; Pickering v. Bush, 15 East, 38; and Wright v. Crookes, 1 Scott, N.R., 685. He relied upon the correspondence which took place between Heywood and the defendants after the sale to show that the defendants had admitted that Messrs. Heywood and Co. were authorised to warrant the vessel. Mr. Travers, for the defendants, was not called upon. The judgment of the Court (Judges Richmond, Gillies, and Williams) was delivered by Judge Richmond ; I am of opinion that the plaintiff has failed on two of the three points on which ho has relied. In the first place, I think that the representation made by Messrs. Hey wood’s telegram did not amount to a warranty. The evidence taken at the trial shows conclusively that the plaintiff inspected the vessel himself ; he was a person competent to form an opinion as to her capacity, and he judged for himself and afterwards bought. It ; 8 unnecessary to say what would have been the result if he had simply said “ Yes ” to the telegram ; such a case would be au entirely different one from the present. Here I can see nothing more than a representation, preliminary to the .sale, which never formed part of the contract o.f sale ; and I think opinions of the Judges in Stuckley y. Bailey are against the contention of the I am also of opinion that the plaintiff has failed to make out the agency of Heywood for the purpose of a warranty. The letters relied on by Mr. Bell certainly do not warrant the inference which he wishes the Court to draw from them. The correspondence only amounts to this : the defendants say, “ If our captain stated that the vessel would carry 22,000 ft. he only stated the truth there is nothing more than that. It was not necessary for the defendants to repudiate Heywood’s authority to warrant because in none of his letters or telegrams does Heywood claim to have had such an authority. The verdict must therefore be catered for the defendants.