The Perennial Publication.

Oamaru Mail, Volume XVI, Issue 5089, 26 September 1891, Page 4

The Perennial Publication.

The following is the judgment of the Chief Justice delivered in the test case of the Picturesque Atlas Company (not Bowerman Brothers) v. Harbottle, at Wellington last week His Honor said that upon a survey of the whole of the Foreign Companies Act, 1884, he didnot arrive .it the conclusion that the legislation rendered it illegal for the foreign company to contract or otherwise carry on business before it had established an office in the colony where legal proceedings might be served, or before an attorney appointed by it had deposited a copy of his power. In his opinion, therefore, the contract in this case was not illegal and void by reason of the non compliance by the plaintiffs with the provisions of the Act. As to the not taking out the license under the Stamp Duty Act before making the contract, he thought the only result of that was the incurring the liability to the penalties, and no inference was to be drawn that the dealings were invalidated oy the breach of the Act and the incurring of the specified penalties. As to the nondelivery of the numbers of the serials for so long a period and the delivery of the whole, then, he thought, notwithstanding the second stipulation in the contract as to non-delivery at any specified date not releasing the subscriber from liability to pay on delivery, that the facts showed such acts on the part of the plaintiff as justified the defendant in concluding that plaintiff had abandoned the contract, and consequently that the defendant might elect to treat the contract as rescinded. No provision was in the contract as to delivery at " any specified date " ; there was nothing, therefore, upon which the second stipulation could operate. A period was mentioned within which delivery was to commence, tliac period being before the end of 1887. Assuming, however, that this period was what was referred to as a specified date, it seemed to him quite unreasonable to suppose that the parties meant the stipulation to cover a delay of three years and a half. He also thought that it appeared sufficiently clear from the contract that the subject matter about which the parties were agreeing was a book to be delivered in parts and at intervals, and not to be delivered at once and as a complete book. It was to be assumed that the delivery in parts and at intervals was essential, and that the plaintiff" was seeking to compel the buyer to accept an essentially different thing from that bargained for. It was clear, also, that the lion - delivery after the complete publication of the series for eighteen months was not a delivery as soon as possible after the publication. It might be that if the delivery had commenced in due time, and there had been only delay in delivery as to some of the late numbers, the defendants could not have treated this delay as an abandonment, but the defendant, upon the facts as stated in the case was, he thought, entitled to rescind the contract and refuse to accept any of the parts. It was not stated in the "case that the defendant ever became aware of the delivery of the book to others in Wellington, in the years ISS7, ISSB, and 1880, and the completion of delivery here in October, 1880 : if he had been aware of that, the evidence of plaintiff's acts as justifying a conclusion by the defendant that the plaintifl had abandoned his contract, would, he thought, have been strengthened. He thought the plaintiff company's right to recover was barred by the failure to deliver, and gave judgment- for the defendant, with L 5 5s costs.