MADE IN ENGLAND

New Zealand Times, Volume XXXIII, Issue 7867, 1 August 1911, Page 7

MADE IN ENGLAND

A GRAIN BUYING CONTRACT.

NEARLY £IOOO INVOLVED. His Honor Mr Justice Denniston delivered reserved judgment yesterday iu a case xirosenting some unusual features, and involving a claim for a considerable sum of money. The plaintiffs were Montgomery Jones and Company, grain merchants, carrying on business in Liverpool, England, and tho defendants were Ccrry and Company, a firm of merchants trading at Blenheim, New Zealand. The proceedings in tho first instance were by two summonses lor liberty to the plaintiffs to issue execution against the defendants upon two judgments against them obtained by the plaintiffs in the King’s Bench Division in England lor the sums of £1331 Is 5d and £2617 2s 9d respectively. On March 4th, 1900, a member of the defendants’ jinn, Mr John Mackenzie, entered into an agreement on behalf of the firm with tho plaintiffs for the sale to the latter of the New Zealand Chevalier barley crop, 1900, to average a sealed sample put into the hands of the plaintiffs at a price of 30s per -iSOlbb gross. Tho agreement contained a very .stringent clause to the effect that for the purpose of proceedings cither at law or by arbitration, the contract should be deemed to have been made in England, and to bo performed there. This gave the courts of England or arbitrators appointed in England exclusive jurisdiction over all disputes which might arise under the contract. It was further provided that any party to the contract residing or carrying on business elsewhere than in England or AValcs should for the purposes of proceedings at law or in arbitration bo considered as ordinarily resident or carrying on business at the offices of the Liverpool Corn Trade Association. The service of proceedings upon any such party, by leaving the same at the offices of the Liverpool Corn Trade Association, together with tho , ppsting of a copy of such proceedings to his address abroad, was to bo deemed sufficient service.

Corry and Company bought the barley and sent it jo England iu due course, but disputes arose as to tho quality of the grain, and these disputes were referred to arbitration. Mackenzie was dissatisfied with the result of tho arbitration and appealed to the Liverpool Corn Trade Association, which disallowed the appeal The awards in tho two cases which wero tho subject of tho two summonses before the Court were made on December- 29th and ly. On June Bth, 49/0, alter Mackenzie had left Ehglaud, plaintiffs issued writs in the High Court of Justice, Liverpool district, Requiring tho defendants to enter an appearance ■within eight days of service. These writs ■were served by leaving a copy with the cashier of the Liverpool Corn Trade Association, and by posting a copy to the defendants at their place of business in Blenheim. Tho letter did not, of course, reach its destination until the fnd of July, tho time for entering' appearance having expired on Juno 16th. No appearance was entered I and judgment was entered by default. On October 12th a memorial of this judgment was extracted, and was'filed in the Supreme Court on November 25th. It was on these facts that plaintiffs moved. The defendants’ answer was to challenge tho correctness of the accounts on which the balance sued for was arrived at, stating that on proper accounts the balance, after allowing the amount of the awards, would be shown < to be in his favour. His Honor, giving* judgment, said/ it was quite possible that tho defendants could, had they been actually .instead of merely constructively represented at the place of service in Liver•pool, have successfully defended the action wholly or in part. His Honor added: "Even had I seen my way to allow tho defendants tho right to challenge the Judgment of the English Court had tho application been made promptly, I think they have put themselves out of court by the delay in’ taking any steps in tho matter. -They knew at the end of July, 1910, of the issue of tho writ, of its service on their prescribed agents, and of the fact that it was an eight days writ. If they then, knew or believed that they had grounds for objecting to the proceedings of tho court, or to the judgment which they must have known would be given on default of their non-appearance, they should have at once taken the necessary steps for their protection. As all tho proceedings ore on their face in order, and as, in my opinion, the defendants have not shown any sufficient cause against the grant of the summons, I must make in- each case the order asked for."