SUPREME COURT—CIVIL BUSINESS.

Otago Daily Times, Issue 277, 8 November 1862, Page 5

SUPREME COURT—CIVIL BUSINESS.

Friday, November 7xir. (Before Tlis Honor, Mr Justice Gresson.) Glenn v. Jones. —Mr Gillies obtained a rule nisi for anew trial in this case, tried on Thursday. THE GUH-AT BILLIAttD MATCH. -DISPUTED AGKNCi". Hopkins v. Harding.- (Special Jury.)—Mr Cook for the plaintiff, William Hewy Hopkins •Mr Wilson for the defendant, Joseph Harding. The action was to recover Lll7 5s for work and labor done, for money advanced as the defendant's agent, uud for commission or reward. Th* particulars of deraan ! were .-—Advanced to Mr Lamb, on his leaving M<." ourne to pi a/a billiard match with Mr Farquhar Lr LSOO n side, LSO ; for Mr Lamb's passage money, Lls ; era mission at 5 per cent, on LI,OOO, Mr Lamb having won the reuireh, Ls'ij cab hire, 'fee, L' 2 ss. The defendant pleaded ihat he was neve: i ndebied.

Mr o'o)k.-tafed the ea -■:■. He contended strongly for the agency ; and said ■ tt although there was no special agreement as to t rate of. commission, there coul'i be no doubt that, ;s a matter of right and custom, the plaintiff war, entitled to a fair remuneration.

The following evider.ee was given :— William Henry Hop ins said he was an imrerter and commission agent, ad had known the defendant fo;- three ,or four ye;, -i. In June Jast, there was negotiation between : iem as to a billiard match agreed to be played between Mr Lamb and Mr Farquhar. He knew of his own knowledge that the defendant had made the nviteh. The del- ndant applied to him to tu&e over to Melbourne certain articles of agreement, to see Lamb, and to arrange to bring or send him over. The defendant said he cr;uld not leave h*s busmen and that if he (the plaintiff) would undertake ", a _ood deal of time would be saved. He agreed but othing was s lid about remuneration, nor was ii' ere., ay thing to induce him to believt. that he w'a-. to bear any expense he went to in tl« matter. The defendant said that be (the plaintiff) whs to pay Lamb's passage, and also LSO in cash, drawing upon him (the defendant) for both aivances. He paid Lamb the L 65, but did not draw, because he was couiing over immediately himself. He produced Lamb's receipt. Lamb came to Dunedia consequent upon the arrangement. Lamb gave: him the following receipt: — "Receivedfro.n Mr Hopkins the sum of fiftypounds, on account of proceeding to Dunedin to play Mr Farquhar, and- also receipt for passage, value fifteen p muds. (L 55.) . " John Lamb." Hn wrote from Melbourne as follows ;— '* Collingwood, June 30th, 1863. ''Mr Joseph Harding,—Dear Sir, —I could not come to any arrangement with Lamb on your cond:* tioiis. He has so many horses in training, that he would not leava hardly on any terms. He will come down with me on the 24th bf next month on these terras, and upon these terms onJy. I have concluded, aud I expect a quarter share of the entrance money tothe match, from-you and Jones, and I am s-ure I am entitled to it:—l. That he receives L2OO if he wins the match, and 25 per cent on the winnings of his backers, alter the amount of stakes. 2 That he receives LSO, win or lose, and all expenses. I have concluded the match with him. He wili be sure to come with me on that day, but you rau^t send me, per return steamei*, a guarantee for the LIOO I have given him one. Do not neglect this part of the business. It will be no use your coming over, for he will play on no other terms, and these I have concluded with him. He now practises regularly. I am, <&0., •

~-nc ,r "W.H.Hopkins. "•*• —You can put your money up with safety, It is a gift to him, Lamb."

That ktter could not be understood without referring to the articles for the match, which were contained in the letter to Lamb which he (the plaintiff) took over, and of which the defendant-had a copy. Thedocument produced was that copy. It was read, as follows :— ' ■■■-•■-

"15th June, 1862, :; ' " Provincial Hotel, Dunedin. .Dear Sir,—l have received yours per City of Hobart, andxm the strength of receiving it I made the match with Mr Farquhar by stoking LIOO a-side, and in the event of-your not comma:, I put in a proviso, soas uot to forfeit only a small amount. The niatch is to come off, if played, on the 4th August., The conditions of the match are very good. You sha'l play on' the old Bull and Mouth table, with balls 216, and as Mr Hopkins was present at the signature of the agreement, he will be able to inform you as near as possible what they are. Mr Jones, of the Provincial hotel, is stakeholder, and all the money to be staked on th* Ist day of August, 1862. " Now, I, J. Harding will pay" you, Mr J. Lamb, the sum of LICO, if you win the billiard match, also your passage to aud fro from Melbourne to .Dunernn. «j. Harding. " Witness—Hopkins. " I also undertake to pay your expenses to and from Dunedin to. Melbourne i you lose through any -m.isf.mune of ;>l:ty,'and gire you the'sum of LSjD, if you lose for iha loss pftiuie. " ' ' "-' - - - «| # Hakdikcj,

" VTitnePs— Hopkins. "' And if you make up you? mind to coiae, let me know by first steamer. I should "like you to come on or before the July, and for your passage money y^u can draw on me or Mr Jones, of the Provincial Hotel. The mach wiil be a very close one, as Farquhar is getting iv fine piay." '' Order.—Please purchase a set of 2-16 balls, and n;ive them weighed in a sc;le to prove tluir equality it v.eijiht, and be very particular about them, as it is fc"-i//essly laid down.

... . ' " J. Hakding." •: '~V Wltness) received. the following letter while in Melbourne :—

~n q. r " 15th July, 1862. Uear fair,—l received yours per City of Hobart, and cannot leave my instructions in writing, as tbe risk ami odds are too great. I should be most happy to see Mr Lamb on the terms I have stated, and sent by me with you. You know 1 cau only for.'eit one hundred, and very likely get out ot that, so that my loss will not be much. Allow me to thank you for your kindness in seeing Mr Lamb and taking the trouble you nave.- I am, &c,

cc jr -r , , J- Harding. it Mr Lamb fears the money, as 1 told him, he can draw on me or Mr Jones."

Lamb had sailed when he (the plaintiff) received tbnt letter. Hq returned to Dunediu on a Fri-iay and saw the defendant that afternoon and askeu for the L 65. The defendant said, " I'll give you a cheque for it m the morning;" and in the monrmr and again on Suuday, he made promises of payment. He appeared up to Saturday Bight to be quite satisfied with what had been done iv Melbourne. On the Saturday night, in conse quence of what Mr Jones said, they both went to the defendant, a)ul the defendant asked him ithe plaintiti) how much Lamb was to get it he won the match. He (the plaintiff) said •' Li! 00 and all his expenses/ Ihe defendant said that that was not iv accordance with his instructions j that he would only P?? J$P b LIOU »t;,he won; and that as he (the plaintiix) had travelled out of his instructions i-e must pay the otherLloo himself. He replied "Allow me to go LIOO in the match, and I'll g lV e it to Mi-l-amb it iie wins." The defendant said that would not suit him. Lamb said, "I won't play unless you allow Hopkins io keep his word with me •" and the defendant replied "I hold so many I. v U's of Mr Farquhar's, that I don't care whether you* play or r.ot, for I cau't lose guy thing by it." Lamb left "the room then. On the next day, the defendant came iw.) or three limes to him (the plaiutiff) at the Provmciiil, askinj? if he hadsetn Mr Lamb. Tl.ey went out and found him, and after a louj>- conversation Lamb said?,, he wouid play for LSO more • bub the deien.lant said he wouid give no more but that ih.-re should be a match, for he would pJay Farquliiir him.elf. Lamb then said '•Weil rather than disappoint the public, I will accept your terms," that was, to play according to the agreement He (the plaintiff) produced to tlu> defendant nmi L-imb the receipt for the rnon*y he h .d paid, and Lamb admitted he had received it. He said to the defendant '•i won't be put vti longer; you must give me a cheque for the amouut at once ;" and the defendant promise.; faithfully to give it next morning. Jle did not, however, see the defendant until five o'clock ir the evening, and then he asked for the inonpy • but the dellndarit r.-plkd. " If you don't, mind what you say, I won't pay you at all." The match was won hv Lamb, and the defendaut got the money—he himsdf said so. The entrance money to sec the match was two guineas for tbe body of the theatre and a guinea ior the g illery. He believed there were £300 m th° house, unless a lot of " dummies " was sent in. He had .since the mntch, applied to the defendant for the £tis and the commission, and received for answer that he might go and get it the best way he could. He had not bt:en paid any porrion of tl)e advances or commission. The defendant admitted, on the Tuesday after the match, that if he (the plaintiff) had drawn for the IMb instead of waiting until he returned io i unedin, he would have got it all right. He had expended more than L 2 5s in cab hire and other expenses.

By Mr Wilson : He was going to Melbourne on his own business, and was at the time lessee of the Princess's Theatre. He nid not recollect who was present when he was asked to take the letter, lie did not know a Air Truman. The defendant said, "If Lamb dors not come over, you know what I lose," and he added that Lamb must be got over. Tlie letter of the loth of June, was a copy of what he ook, but lie had instructions other than th;se in tha, letter. He. never said to the defendant, " I'll take your letter if the instructions are positive," nor anything of the sort. He had not long been a commission agent; he had no place of bushusi here. The defendant knew that he (the plaintilf) had been a commission agent in Melbourne and so did many other people ; ha never held himse.f 0 if. as such here. He asked in his letter to the de- • :riant for " a guarantee for the LK'O. I have given im one," meaning to Lamb, but he had only given :V>s, and he wanted his commission out of the guarani. >'.. He had offered to leave the whole matter to arbi--1 f ition. He ku^w the signature to the receipt produced to be Lamb's, but the defendant, before payin' the money referred to in it, knew that he (the pfaintitf) had paid L 65 to Lamb. The receipt was read as follows: - '

" August 6th, 1862. Received of JVir Harding the sum of one hundred and thirty pounds sterling, as per agreement and positive instructions, as sent through Mr Hopkins, to Melbourne, in writing, and also clear of all demands against J. Harding, connected with the billiard match, as played and won by me on the 4th day of Augu t, 1862. « John Lamb'"

Re-examined :At the time of writing to the defendant, he had not paid the LOS to Lamb; but he bid given a guarantee, without which Lamb would no~ commence to practice. Mr Wilson briefly stated the case for the defendant. Joseph Harding, the defei dant, said that in June he knew the plaintiff as connected with the Prince&s' Theatre. They were intimate at the time. He saw the plaintiff before ne went to Melbourne, in the bedroom of Mr Kirkpatiick, at the Provincial, Mr Tru man being present. Itwas suggested tothe plaintiff to take the letter to Mr Lamb, and he replied. " (Jertninly, with pleasure; I'll do anything for you." Th« b tter had then been wrirt.-n, and the plaintiff witnessed it. He gave the plaintiff positive instructions not to. depart from the terms of the letter, and the plaintiff replied that lie wished the instructions to f c decisive. If Lamb had drawn upon him (the defendant) for passage money, he wouM have paid it. Until after the match came off, the plaintiff never spoke about commission ; and it was two or three days before the match that h.'- applied for L 65, which he said he had advanwd. He never received a letter from the plaintiff, stating that ha had paid LGS. It wo>»ld by no means havesuitedhim (the defendant) to have gone on upon the terms arranged between the plaintiff and Lamb ; it would have been equal to 1\ to 1. Two or throe dnys after the match he said to the plaintiff that if Lamb would admit receiving the L 65 on behalf of the msitch, he would deduct it from Lamb if he won, acd give it to the plaintiff. Lamb insisted on liavinsr all his money, and he (the defendant) paid the Ll3O. He also paid Lamb L 27 17s as the amount of subscription after th« mat"h, and towards which he (the defendant; gave five guineas. LIOO was for the match, L3O for passage-money from and to Melbourne ; and he vthe defendant) paid Lamb's expenses in Dunediu. By Mr Cook: He knew the plaintiff for several years in Melbourne, as a wine and spirit merchant, not a< a commission agent. It the plaintiff had not been going to Melbourne, he (the defendant) would very probably have sent the letter by post. He had previously contemplated going to Melbourne himself, and he could have left his business without losing much. He was the proprietor of four billiard table* at that time, but he could have got a friend to look j after them without charge. He did go down to the jetty wheu- the plaintiff was starting for Melbourne • ! but. tf did not say any thing like, " Whatever youdo,! bring Lamb over." The plaintiff returned to Dunedin a few days before the match, and soon afterwards he ' said that he had advanced L 65 to Lamb. Asyet, he had not lost anything consequent upon the plaintiff exceeding his instructions, for Lamb played on the original terms. Lamb having won, he (the defendant) got his own LSOO back, the greater part of .the ■ other LSOO, and all the en trance money. When Lamb wanted the LSO and passage money from Melbourne, -he (the defendant) did not say anything about the plaintiff. Lamb had admitted that the plaintiff had paid him LGS, and he (the defendant) would have deducted it trom the LIOO if Lamb would have consented. He placed a cheque for L6sin Mr Bird's hands, in the presence of the plaintiff, saying "Hoicl that cheque, and if Mr Lamb allows it to be deducted from the. amount 1 have to pay him, you hand the cheque to Mr Hopkins, but rot otherwise, as I shall hold you responsible for it." He knew that he was notbmnd by law/to pay Lamb twice over. Lambhad admitted thereceipt of the L 65, but there might have been, some collusion of coi'rse he did not say there, wa^. The receipt was wi-itten after the plaintiff had demanded his money, but he coujd not see the way topayi'. for Lamb insisted upon having Ll3O. Lamb dd not gay anything about himself repaying the ■V-M-xtih LGS. He (the defendant.) considered it an Ji.jiiest thing to pay the LIOO he owed Lamb; and he -.<wd what he could to repay the plaintiff, by drawing . iso cheque. If Lamb had drawn on him in MeU bjurne ior the passage money, he would have honored it not for the LSO. He considered that be had nothing to do with the plaintiff; but that if the plain-, tiff had advanced L 6& to Lamb, Lamb ought honestly to have repaid if. Re-examined: He fcnew nothing of pecuniary matters between Lamb and the plaintiff; and therefore he thought his most judicious pla.n was to, pay to. Lamb, that which he owed him, and \a leave other matters id be settled between ibm interested* The

| evening the p'ai«ititf r-tur.srd- fo m AMb^um- h« } '. < V ' have 1 dove wrong?' to .which ifi. ri pIH,I.M/earyoa have." Thfre was no Sore Van Ll3o r c ived ior entrance tnon.-y t0 th» the i i- S there were veiy consider.We exiu.se- U!e' U1"' and The plaintiff arted as a fiieiid in tati he (the defendant) could ~ot say -<7 PI £ T ter; friendly net to see his friend IoV t is LGS W ? Lan\b. he th°Ught *" P^'-^-uld ha^ o ' t The Plaintiff was recalled by the Jury: He said hat he had had no other pecuniary transactions sth Lamb. He swore that 1 amb would not leave Mcl bourne vtfiout having the LSO ho was to c JJ«if lie lost the match ; and he swore also thai lie paid admitting that lie had hem paid uib s'dTh.t If night ami naiuo. His re c,,: {„«&„ was ih t.? ». - " « coated to „ I,^"?^^- *

ti defendant IrH »1. MnnS «•« Plaintiff ask i.c ceienuant I.r Lv , two or throe iim™ihe matter was in abeyance son,,, tim.-, and the ?ir* ues getting excited, tlie plaintiff ask«.i. "iheu %ll you K ,ve me Uo C> The d^v.<Uml ol.j-rted ■n>l 1 o ulaint.fr said, " Well, wili you cive me SCbieh I nave paid for the p..ssa se ?" "1 hat , was s . lt J I]\\ L 'J uient oi lmtaiion. The defendant rr-nhV l;„ tee ? that he held himselt r^ponsihio J l .b' f v Jt± IZ p!nd. He (fclj ° Witn£ra) WUS l>™>ent S-hen Cab By Mr Cook : He understood that tho uhintifF went to Melbourne because he i.nd aquanSwKJJ arriving there. He rewemhei-ed tiie Win S ofiU " toarbi«mte the matter; and he tlmiisr'lib ir wa^ ou i c aay the Lou and Lls v,,re tnikeUf. The } "fr7uons^sr thathe w<l °^m^ *•«•*•£

iMiniiel Buchanan said ho promised to collect nil moneys and pay wages, during the d^n.lanTs absence, ir he went to Melbourne about this matdu ivlr Wilson, in addressing the ,1 uw. said that a 1 the documents, as wvll a* Mi, cut.voi-.s.tions slim-v I Vh-.r the plaimiffhad been throughout tIScJ as 7*S?\ friendly act, never as the a-ei.t of tiic defendant. If on his ow:» responsibility, he had advanced"money to Lamb, he had his remedy against that jretith'i «7 and md cer ai nly been i,i Alellwuruerince La.nl, retun ci But taUmar the ca.se on strictly Je^il mimid* and assuming that the plaintiff was th , defendmfs a4n it was most dear tliab he had exceeded definitely precise instructions and therefore had uo claim for the .consequences of that excess. Had the plaintiff really paid the L(W or simply ~iven a qua: ante!, for i It he had a claim, why did he not take, Limb to Mr iJird, or at least produce Lambs authority, ,o as to have* bee* paid by the cheque which Bird held f,, r that purpose? Lara!) nu-ht have been called, or his evidence might hive been tnkcii and sent from Melbourne; but the plaintiff had not adontel either course. It wax clear that (here had heeu hoa^ncv and that being the ca-e the defendant could not'Vifelv or properly, recognise any clai:u by the plaintiff as as aiiectmg an undoubted duty towards L-mb Air Cook denied that the plainfff had any j'em^dv W^f ulbi I b»t 1 t! ) 1? tl''fenilantcouldllaveded U ctea the Lbo ti-om the Ll3O, and Lamb would hay been compelled to receive the smaller sum, fur it completed the amount which tiie agreement provided Lamb should receive if he won the match. It was absurd to say that the plaintiff was not the agent of the de fendant and . did not, as such negotiate the luatch lruman, the strong witness for the defendant, .stated that the suggestion was that the plaiuliff would ba abie to save the defendant a journey to Melbourne and the defendant would not have contemplated the journey if he did not know that there was much to do, and that probably there would be a creat deal of trouble in inducing Lamb to cyme to Dunedin It would he for tho Jury to judge upon the facts, whether the plaintiff was not entitled to LSO for hii trouble, seeing that the defendant had pocketed clear LGOO.

The Judge summed up, leaving the jury to decide hrst—whether the plain tiff was the agent, of the defendant ; second—whether, being so he exceeded his inBtructions in advancing the L&O; and third—if an agent, acting within his instructions, what sum lie was entitled "o recover. He thought it was hard upon the plan iff that he had been so used, for the defendant had the power and the right to insist upon tneplrtintift being repaid his admitted-advance After the jury had retired, they were called in, consequent upon an application of Mr Cook, and His Honor told them that the receipt of Lamb for the L 65, would have been as good as cash, in the settlement between the defendant and Lamb, had the defendant chosen to have used it.

The Jury, after an absence of rather more than halt an hour, returned, and gave a verdict for the p aintiff; damages, L7O. The Court, at half-past four, adjourned to ten o clock on Monday morning.