COURT REPORTS

New Zealand Times, Volume XXX, Issue 6622, 11 September 1908, Page 8

COURT REPORTS

THURSDAY, SEPTEMBER 10. SUPREME COURT-CIVIL (Before his Honor Mr Justice Cooper.) A LEVIN LAls'D PURCHASE. KIBBLHAVIHITE v. SOAIERA'ILI.-E. In this caso, which had been commenced on the previous clay, Mr C. iJ. Morison appeared for the plaintiffs, James Henry Kibblewhite and William Duncan Kihblowhite (who was joined as a plaintiff at the opening of the caso) and Air M. Chapman, K.C., with him Mr A. Dunn, appeared for the defendant, William Georgo Somerville..

Plaintiffs’ caso was that certain land known as Whirokino No. 2, which is situated near Levin, was offered by defendant for sale, and tho plaintiff, James Henry Kihblowhite, by his agent. William Duncan Kihblowhite, agreed to purchase it. The area of tho property was 709 acres, and tho terras of purchase were;—£l2oo within one month; £BOO within twelve months, with 5 per cent, added, and the balance, £I7OO, by taking over an existing mortgage bearing interest at 5.V per cent, and payable in January, 1912. Plaintiffs alleged that tho actual boundaries of the property were misrepresented to them as including certain valuable flab land, whereas, in fact, this level portion of tho country was tho property of a neighbour. Plaintiffs consequently asked that the contract to purchase should bo sot aside, and that tho sum of £I2OO which he had paid on account of tho purchase should be returned. Defendant denied that any misrepresentations had been made as to the boundaries of the property, and contended that plaintiffs had no rightful reason for desiring the recission of tho contract. Defendant alleged that both before and after the making of tho contract tho Kibblewhitos visited the property several times, and the true boundaries were pointed out to them. Tho caso for plaintiffs had been closed on the previous afternoon. Mr Chapman having opened the caso for tho defendant, called Arthur Robertson, a drover, who stated that tho sale of tho property in question was not to his personal interests, as he would probably get no more work from Air Somerville, Ho had not received any commission on this sale. He had conducted Air W. D. Kibblewhito over the property, and showed him a plan of it Kihblowhite did not see tho ■whole of the boundaries, as he said he had a bad back, and added that ho would be satisfied if he got a rough idea of them. Subsequently he remarked that ho was very well satisfied with tho property, hut that the price was rather high. Kibblewhito could have bowled witness out by reference to the plan if he had attempted to deceive him as to tho boundaries.

In cross-examination by Mr Morison, witness said he had shown about a dozen people over the property at defendant’s request. Ho had been engaged occasionally by the defendant to examine properties on his behalf. Ho had inspected about half a dozen properties in various places, and he received 8s a day and expenses. When showing people over the property his general instructions were to put them on the farm and give them the plan, from which they could pick out the property for themselves and fix its boundaries. He had no 'general instructions with regard to Mr Kibblewhite. It was no part of witness’s duties to point out the boundaries to people who came to inspect the property, but he did so. If they wanted any information he gave it to them, but Mr Somerville instructed him that if such visitors had the plan of the property they would be all right. W. 0. Beere, a licensed surveyor, stated that, in his opinion, anyone who intended to purchase such a property would make themselves acquainted with the boundaries by going over the land. William Lingard, a land and estate agent, of Wellington, stated that ho had taken a client to see this property, and had been shown over it by Robertson, who told him where the boundaries were. They had no difficulty in picking up the boundaries of the farm.

Thomas Rogers, Gilbert Hare, William It. Aislabie, and Robert Hare gave evidence in support of the defendant’s case.

Mr Chapman also called the defendant, who stated that ho bought the land in question in September, 1906, and gave £6 10s per acre for it. He built a house on it, and altogether spent about £SOO in improvements upon the place. During the negotiations which took place between defendant and plaintiffs with regard to the land defendant gave plaintiffs a full and accurate description of the property, and also a plan of it. Before witness purchased the place in 1906 he rode over the ground, and had no difficulty in locating the boundaries of the property. , The defendant’s evidence was not concluded when the Court adjourned until the following day. MAGISTRATE’S JURISDICTION (Before Mr W. 6. Riddell, S.M.) POLICE CASES. ' For drunkenness, John Hislop was fined £l, in default seven days imprisonment; and George Clarke was fined 10s, or forty-eight hours. John Forrest Perry, who did not appear, was fined £■!> or forty-eight hours, for having behaved in a disorderly manner whilst drtmk. Charles Donald Hoskins, alias Hoskyns. pleaded guilty to_theft of a covert coat, valued at £2 15s, the property of the Dominion Clothing Company. He was sentenced to fourteen days’ imprisonment. CIVIL BUSINESS. (Before Dr A. McArthur, S.M.) XnSTDEtFBNDBD CASES. Judgment was given for the plaintiff by default in each of the following undefended cases —Universal Supply Company, Ltd. ( in liquidation) v. Matilda Burgess, £6 6s 2d, costs £1 3s 6d: same v. Bella Sage, £3 ss, costa 10s; E. H. Grease and Son, Ltd. v. H. Storey, £2 19a lOd, costs £1; Dickerson and Co. v. G. D. Jones, £5, costs 10s; F. C. Hjornng and 00. V. Estate of Joseph Petrie, £2OO, costs £8 19s; John Duthio and Co., Ltd. v. John Cook, £l6 7a 4d, costs 17s; Wellington Publishing Co., Ltd. v. Ernest Aitken, £36 11a sd,

costs £1 3s; Commercial Agency, Ltd. as assignee, and Briscoe, and Co., Ltd. ao assignor v. John C. Sims, £3l. costs £3 14s: "NV Zealand Times” (.Company. Ltd. v. J. L. Munson and ■Sons, 7s, costs only; Commercial .'.goney, Ltd., assignee, and the WelIngton Gas Company, Ltd. assignor v. Hose A. Swino.ra, £5 8s Id, costs £1 os Gd ; Voitch and Allan v. W. Joe Gott, os. costs only; Commercial Agency, Ltd., assignee, and W. M. Bannatyne. and Co., Ltd. assignor v. William Griffin, £2 12s 4d. costs 17s; Dresden Piano Co., Ltd. v. James Astwood, Co IGs 4d, costs £1 6s 6d; Michael McGrath v. Joseph James Moore 13s 3d, costs 9s; Willington Traders Agency as assignees of Kempthorne, Prosser and Co.’s New Zealand Drug Company, Ltd. v. Alfred Rayncr, £23 14s Id, costa £2 14s; Morris Fruhauf v. Joseph Amoretty, £34, costs £2 14s; Green and Davis v. Joseph Wi Neora, £l3 17s 4d, costs £1 Os 6d. JUDGMENT SUMMONSES. In the judgment summons case of 11. Osborne and Co. v. Gcorgo Peek, a debt of £4 15s, the debtor was ordered to pay on or before September 24th, in default seven days’ imprisonment. In tho case of T. H. Coltman v. P. Koarnev, a debt of £4 10s, tho debtor was ordered to pay on or before September 24th, in default seven clays’ imprisonment. No order was made in the case of the Rouse and Hurrell Carriage Building Co., Ltd. v. Roland H. Pegley, a debt of £22 9s 9d. RESERVED JUDGMENTS. EMPTY CORDIAL BOTTLES. LEWIS v. HARBOUR FERRIES. CO. Tho return of empty aerated-water bottles was the subject of a reserved judgment given by his Worship Dr A. McArthur in tho case of A. M. Lewis, trading as Thomson, Lewis and Co. (Mr Morison) v. The Wellington Steam Ferry 00., Ltd. (Mr DalzieU), a claim for £43 lus for the non-re-turn of three hundred and fifty dozen bottles, which had been supplied to the defendant company for sale at Day’s Bay, tho plaintiff alleging that the bottles were to bo returned when empty, or within a reasonable time. His Worship considered tho arrangement between the parties was tho usual one between those engaged in this class of business. Tho plaintiff supplied the defendants with full bottles of aerated waters at a certain price, it being distinctly understood that tho bottles, which are more valuable than the contents, should be returned. In ordinary hotel business, bottles were returned virtually each week day, and as a consequence could be used by the plaintiffs from ten to fifteen times a month, but in the case of private customers the returns might only be made once or twice a month. In the present case the circumstances were different, tho defendant having least lime to attend to returns when the plaintiff most needed the bottles. The Court found that if tho bottles were not returned it was the custom of the trade that they should bo paid for, always, however, allowing a good margin for loss and breakage. Early this year the defendants made arrangements to get their supplies from a person other than the plaintiff, and then the question of return came to tho front. The only record of returns was kept by the_ plaintiff, and the Court considered his books satisfactory in this, as well as in other particulars. His Worship considered the defendant company was bound to use tho bottles in a proper and reasonable manner and to return them at the time appointed for their return, or within a reasonable time after request if no definite time had been agreed upon, in the condition in which they were delivered by the plaintiff subject to the deterioration produced by wear and tear and . reasonable use, and by injuries caused through no fault or neglect on the part of tho defendant. The defendant company had had the bottles and should show why it could not return them. In the opinion of the Court there was a contract between tho parties that the bottles were to be returned in a reasonable time and failing such return the shortage was to bo paid for. Judgment would he for the plaintiff for £33 18s 4d, tho amount to be reduced by any goods or bottles returned at invoice prices. A TWO-FOLD CLAIM. SAMPLE v. SHELTON. His Worship also delivered judgment in the case of Kate Ellen Sample (Mr Dunn) v. Frederick James Shelton (Mr Dix). The plaintiff stated that by agreement dated March 20th, 1905, the plaintiff demised to the defendant, part of section 691, city of Wellington. It was a term of the lease that the lessee should pay and discharge all rates, taxes, assessments, and impositions, levied or to be levied on tho premises. Tho defendant made default in the payment of rates, and the plaintiff was compelled to pay tho sum of £l6 16s to tho Wellington City Council for rates due for tho year ending March 31st, 1908. Further the plaintiff agreed to sell to the defendant a piano for the sum of £4O, to be paid by equal monthly payments of £l, with interest at the rate of 8 per cent, per annum. There was now due by the defendant under the agreement, the sum of £7 8s 7d. The plaintiff +1 erefore claimed from the defendant the two sums of £l6 16s and £7 8s 7d, making in all £24 4s 7d. With regard to the first part of the claim, his Worship said that tho lease terminated in March, 1907, and the tenant held over by consent of the Jandlord, and was still in possession. There was, therefore, after the determination of the lease, a tenancy with no agreement as to its duration. Such a tenancy was now deemed to be a tenancy determinable at the will of either of the parties by one month’s notice in writing. Tho defendant therefore contended that as he was merely a tenant 7rom month to month, he was responsible for tho rent only, and not for tho taxes. After quoting several authorities to show that, “if there he a lease for a year, and, by the consent of both parties, the tenant continue in possession, the law implies a tacit renovation of the contract. They are supposed to have renewed the old contract.” Therefore. in his Worship’s opinion, tho defendant was holding under the same

'•ondiiions and terms as those of the lease which had been determined, and was therefore liable ior tho amount of rates claimed, £l6 16s. As to tho terms on which the piano was bought, there was a distinct conflict between tho plaintiff and tho defendant. This threw his AVorship back on documentary evidence. The receipt was, of course, not an estoppel, but considering tho conflict, it must have a certain weight. It stated: “Tho piano is now the property of Air F. J. Shelton.” The draft agreement or bailment, whatever it purported to be, was never signed by tho defendant, and moreover, tho letters of the plaintiff’s solicitor never spoke of tho sale of the piano. .Where interest was concerned, his AVorship thought it only right that direct evidence should he given of the agreement with regard to it. He could not allow the amount claimed for interest on the sale of the piano. Judgment was therefore entered for the plaintiff for £l6 16s, with costs £2 6s.

LIABILITY OF AHNORiS. LAING v. HANSON. His Worship Air Riddell delivered judgment in the caso of David Laing (Air Dunn) v. Sydney John Hanson (Air Blair). Tho action was on a promissory not given by tho defendant, an infant, in part payment of a purchase of land. A special plea of infancy was entered. Tho evidence of the defendant’s mother showed that he would not he twenty-one until February, 1909. His AVorship thought the case must bo decided on tho authority of AlcFerran v. AlcFerran (15 N.Z. I/.R. 392) which states that an infant who enters into a contract with respect to a subject having a permanent nature, is bound by the contract unless ho repudiates it within a reasonable time after ho attains the ago of twenty-one years. The defendant might not actually have said that ho intended to repudiate his contract with the plaintiff,_ but he had not entered into possession of the property purchased, and ho was still an infant. Tho contract was voidable by- the defendant within a reasonable time after he attained the age of twenty-one. and that being so the plaintiff could not succeed while ho was under that ago. , Tho plaintiff was accordingly nonsuited without costs.