SUPREME COURT.-CIVIL SITTINGS.

Otago Daily Times, Issue 5276, 18 January 1879, Page 1 (Supplement)

SUPREME COURT.-CIVIL SITTINGS.

Thursday, 16th January. (Before his Honor Mr Juslice Williams and a Common Jury.) MACDONaVLD V. PROCTOR. Claim LIOOO, aa damages for the refusal by tho defendant to carry out an agreement for the leasing of a coal-pit at Papakaio. Special damages wero also claimed. Mr Denniston appeared for the. plaintiff; and Mr Haggitt, with him Mr Hislop, for the The heating of this case was resumed at 10 a.m., and the question of what should con stitute the measure of damages, which was raised upon the question what the plaintiff considered, from his knowledge aa a practical miner, would have been a fair and probable profit to have made in working the mine, was argued at great length. - His Honor, alter argument, said: I think the question may be admissible to show what the value of the mine was. T should be inclined to admit it. The most important question is whether the plaintiff is entitled to recover any damages for the loss of his bargain. I think perhaps it would be as well to continue the case and take evidence, it being understood tbat leave will bo reserved for either party to move according as 1 may hereafter direct the Jury. I think that is the best couise. Mr Haggitt: It is for your Honor to decide, I do not consent to auy thing. His Honor: The question will arise hereafter as a matter of direction, and it will bo for counsel to move upon tho ground of misdirection or noD-direction. The Plaintiff then deposed that, as a practical miner acquainted with the district, hocould say that at the time he went to I'apakaio the coal-pit, aa then worked, would bo worth Ll a day, allowing for all expenses-providing that the trade was pushed. Mr Haggitt moved for a nonsuit on the following grounds: (1) That there was no consideration whatever to support the agreement referred to in the declaration; (2) that the agreement waa a mere revocable license, and that any leaso granted under it would be revocable; (3) that there was a blank in the agreement, the effect of which waa that there was no agreement by the plaintiff to comply with the conditions set forth; and (4) that there was no evidence of the refusal of the defendant to execute the lease, and that be was not bound to execute the lease until a period which had not yet arrived, as, according to the agreement, the lease and counterpart were to be executed within twelve months. His Honor declined to nonsuit the plaintiff, and ruled upon the points raised as follows :— I think the true construction of the agreement must be that the period of 12 months ia fixed as the limit of time during which either party can call upon the othor to execute the lease. Aa for the other r.oint, that there iano consideration, I think there is a sufficient consideration, and that the vrords, "and that the following covenants on the part of the said " must be construed to mean "on the part of the said John Macdonaid." I think I ought to refuse the nonsuit. Nonsuit refused, and leave reserved for the defendant to move fcr a Dew trial. Mr Haggitt opened the case for the defence, which was that the agreement waa a conditional one; that this fact was clearly within the knowledge of all parties concerned; that the conditional agreement was made at the request of the plaintiff j that it was one which could not materially benefit the defendant; aud that the condition of tbe agreement—the surrender of the lease of the mine—could not be obtained. „ . ~ The Court adjourned at 5 p.m., and the hearing of the case will be resumed this (Friday) morning.

Fiuday. 17th Jykvaky (Before his Honor Mr Justice Williams.)

MACDONALD V. PROCTOR.

This case was continued from tho previous day* , . „ , For the defence the witnesses called and examined were the defendant, Thomas Proctor, and Joseph Smith, the present lessee of the pit. The issues to be put to the Jury were then agreed upon; Mr Haggitt addressed the Jury, and Mr Denni3ton replied. ■His Honor then summed up. He said it waa admitted by both parties that an agreement had been signed, but the defendant maintained it had been understood and agreed tbat such agreement was not to operate as a contract unless possession could be obtained from the lessee, Smith, while the plaintiff maintained no such condition attached. The question, therefore, for tbe Jury was, whether the plaintiff's or the defendant's contention was the true one. If tbe Jury thought the agreement was not intended to operate aa a, contract until possession was gained, then it would be their duty to find for the defendant. If they thought there had been no such understanding, but that the document represented a real contract, then they would have to find for the plaintiff. The settlement of this question depended principally upon the credibility to be given to the plaintiff and the witness M'Cracken on the one side, and the defendant himself on the other; and in order to place the evi.derace on both sides before the Jury, his Honor •went over it in detail, placing the various statements in juxtaposition. The second issue was simply dealt with, as to whether defendant _iad refused to carry out such agreement, as they had the plaintiff's solicitors' letter, asking .defendant to do so, which was unanswered. The question as to damages involved a legal .question of very considerable difficulty, and upon it he should reserve leavo for defendant to move upon the pleadings and evidence to ■reduce the damages—if substantial damages were given—to nominal damages. He should put it to the Jury that if they thought there had . been a contract, and that contract was broken, they could give more than nominal damages. The damages should not be calculated on what plaintiff was likely to make out of it, but upon the value of his bargain—that was, upon what it would have brought if ho had put it into the market. The evidence to enable them to come to a decision upon this point was scanty, the only thing being the statement of defendant himself that, after payiog all expenses, a profit of Ll per day was to be made out of the pit. The Jury retired at 4 p.m. to consider their verdict. , . _ Mr Haggitt then submitted tbat his Honor should have directed tho Jury in this way :— " That if they find the contract was made without the express condition sworn to by the defendant, and if they find that the defendant acted in gocd faith, and bad fair reason to believe that he would be able to carry out his agreement, and was willing to carry out his rgoieement, but was unable to do so, they ought only to give nominal damages; and if they •find thai the defendant waa able, but not willing, or was unable through hia own default to •carry out theJ .agreement, that the measure of .dama«es in tin.** case ia the value of the term rto which the plaintiff was entitled, and that as there is 110 evidence whatever of what the value of tho term was, they cannot give more thau uominal dan-iges." He asked his Honor •to take a note of hia ."libmiasion, s.o tbat he anight be able to move for a new trial on (the ground of non-direction. His Honor took a note of the point aa requested. Tho .fury upon returning, shortly after fi •o'clock, foutid upon the issues put before them aa follows:—Did the defendant agree with plaintiff to grant the lease aa requested?— Yes. Did tho defendant refuse to perform and cairy -out the said agreement?— No. If so, what damages is plaiutiff entitled to recovei?—Lso. Mr Denniston said thore evidently had been isome misunderstanding upon the second issue. His Honor explained to the Jury that the raeaufag of the second issue was whether there had been a breach of contract. They now said there had been none, but yet had given a verdict because of the breach. The Foreman explained that tho Jury were of opinion defendant did not refuse to perform, but tried his best to do »o, only was unable. Mr Denniston.submitted the Jury muse be directed that the if-uue should bo " 1 eftise or negket to perform." Mr Haggitt objected to any altering of the issues, which were agreod to, and must be abided by.

His Honor directed the_ Jury tbat they had misconceived the issue. The meaning of it was Whether defendant " omitted to psrform" the agreement. Mr Haggitt objected to this alteration of an issue to meet tbo finding of a jury. It was tho first time iv au experience of 20 years he had heard of such a thiDg. He protested against it; but if the issue waa so altered, aakeel his Honor to put this aa a fourth iss.ue : " Whether the defendant in their opinion acted in good faith, and had fair reason to believe at the time he entered into bia agreement that he would be able to carry it out, and was afterwards willing to carry it out, if able." His Honor agreed, Mr Denniston consenting, that this should be put as au independent issue, and the Jury; retired to reconsider the second and the new fcsue. When they returned they replied " Yea " to both issues. -Jhe Jury were then discharged from attendMr L,v °nnJ''toii askod that hia Honor should certify oosis. • -■ Mr HnnglK objected, and, after argument, it waa :agieinii to bring the question on iv Chambers. It waa agreed to hear' Mr Haggitt upon the points of objection, "&c, raised, on the 19th March. ■Sim CBTiDITOR's TRUSTEES IN EfcTATE OF JAMES DLACK V. I. N. V/AT'i' (SHRRIFP), WILLIAM CODFRIrIY NEILL, JOHN BOYD, AND ROJ3BBT NEILL. | In this case—a claim to recover value of certain goods alleged to have beeu wrongfully nolcl under sheriff's writ, and in which Messrs Smith and Hov/orth appeared for plainttffa— the sheriff, as defendant, appeared in person, and Mr Denniaton appeared for the other defendants. A jury was empannelled, and further proceedings were adjourned until this •morning at 10 o'clock.' Tbe waiting common ;urvp were Oisijli^ca ftm fttte^dau^ "7/■'....„.■