SUPREME COURT

New Zealand Times, Volume XXXII, Issue 7079, 17 March 1910, Page 8

SUPREME COURT

WEDNESDAY, MARCH 16. (Before his Honor the Chief Justice.) CLAIM FOR SPECIFIC PERFORMANCE. Hearing of a claim for specific performance of an agreement of sale, in regard to a property in Marlborough, w'nich had been beforo the Court tn the previous day, was concluded. Tho plaintiff was Thomas Morland, farmer, of Raknia, and tho defendants Frederick Hales, Benjamin Coleman, James Brownlie, John IMivor, and Thomas Wilson, gentlemen, of Wellington. Edmond. Somerville, sheepfarnier, of Southbridge, was joined as a third party. Mr G. Harper, of Christchurch, with him Mr T. I'oung, appeared for plaintiff; Mr C. P. Skerrett, K.C., with him Mr H. V. O'Leary, instructed by Mr J. J. McGrath, for the defendants; and Mr T. W. Stringer, K.C., of Christchurch (with him Mr I'. Levi) for Edmond Somervillc. The defendants were owners of the Birch Hill estate, jn tho Wairau Valley, comprising 'IB,BOO acres. On November *Bth, 1909, tho defendants agreed to sell the property and stock to the plaintiff for £37,600, and the plaintiff ten days later paid £SOO deposit agreed upon. Before the expiration of this ten days' option, the defendants, without knowledge of the plaintiff, agreed to sell the property to Somerville, and repudiated tho agreement with the plaintiff. The plaintiff was still ready and willing to perform his part of the agreement, and desired the Court to order the defendants specifically to perform the agreement, and to place him in full possession of the property and stock. The defendants contended that no binding contract had been entered into which would prevent a withdrawal of the offer, and alleged that prior to any acceptance by the plaintiff they withdrew the offer, as they were entitled to do, and sold to Somerville, with the plaintiff's knowledge. The defendants also alleged that, before they, sold to Somerville, the plaintiff, either by himself or by his agent, had definitely signified to them that he did not intend to accept the offer. The hearing of evidence was concluded in the morning, and his Honor heard argument in the evening-, to suit the convenience of Southern counsel, who were leaving by the Lyttelton boat. His Honor reserved his decision. RESEIRVED JUDGMENTS. IS IT AN OBSTRUCTION? His Honor delivered his reserved judgment in the case of John Eli Ellis v. the Hutt County Council. There were two main questions raised, his Honor said: (1) Whether a certain mill-dam erected in a stream in the district over which the defendants have jurisdiction is an " obstruction " in the meaning of section 62 of the Land Drainage Act, 1908; and (2) whether, if it is an obstruction, the defendants should, before making an order under that section, have given notice to the owner of the land. His Honor went into the facts at length. It appeared that in 1898, the occupier, with consent of the owner of the land, erected a dam in front of the land, across the Wahvetu. In 1907 the-land changed'hands, and the plaintiff is the lessee. The dam was slightly raised between 1898 and 1907. The defendant council, without notice to the owner, issued an order for the removal of the dam. Before the issue of tho order, neither the owner nor the tenant received any notice under the Act. If the order is not complied with, then the occupier or owner is liable to a fine not exceeding £1 for every day during which the order is not obeyed, and to pay the cost incurred by the local body in removing the obstruction. The question was: Does a dam come within the words of section 62, .'" all weeds and other growth or refuse and obstructions of any kind calculated to impede the free flow of water" in : the watercourse or drain ? His Honor held that it did not so come, and, therefore, to j the first question answered " No."

In view of what his Honor had already held, the second question was not of importance. At the same time, his Honor was of tlie opinion that notice was necessary. Judgment was therefore entered for the plaintiff, with costs. Mr C. B. Morison appeared for the plaintiff, and Mr A. de B. Brandon for the defendant council. THE LOSS OF AN EYE.

Reserved judgment was also delivered in the case of Falconer John McDonald, v. the . Mutual Life and Citizens' Assurance Company, Ltd. Mr P. J. O'Regan appeared for the plaintiff, and Mr H. D. Bell, K.C., with him Mr E. J. Fitzgibbon, for the defendant company." This was a special case stated for the opinion of the Court. The plaintiff was insured against accident by the defendant company, the policy stating that the plaintiff was to be paid £SO for "permanent partial disablement.?' In the definition of .disablement was included " the complete and irrecoverable loss through accident of the sight of one eye." The plaintiff sustained injury to his eye, which was permanently damaged and of. no practical use in bis vocation. According to Dr Hislop, "The affected eye still has perception of light, and the ability to perceive in a very blurred manner the general outline of prominent objects, but there is so much corneal opacity that the eye is of no use for the purpose of the assurod's occupation, and, indeed, is of little practical use for any purpose except to distinguish daylight from dark. In .the medical sense it is not totally blind, but if the other one were similarly affected, the assured would find great difficulty in earning a living." • . The defendants admitted that Dr Hislop's statement was correct. The question was: Could the plaintiff recover for permanent partial .disablement? Could it bo said that he had suffered " the complete and irrecoverable loss" of the sight of one eye. His eye could see, his Honor said, though it may be that he could see with it like the blind man of old, half restored to sight. He "saw men as trees walking." The. doctor did not say,that there was "complete" loss of sight. "Complete" must mean '' perfect," "total," "full," etc., and his Honor must assume that the words were used to define the kind of loss for which the company was to he responsible. He could not, therefore, omit the word " complete." He must enter the question in the negative, and.

judgment must be entered for the defendant, with £5 os costs, and any iisbursements.