Page 6 Advertisements Column 5

Otago Daily Times, Issue 11506, 19 August 1899, Page 6

SUPKEMR COUKT. IN CHAMBERS. Friday, August 18. (Before His Honor Mr Justice Williams.) Duncan and Others v. Palmer.—Petition for leave io mortgage part of the trust estate (Mr Fraser).—'Jrder in terms of prayer. Waters (petitioner) v. Waters "(respondent).— Motion ior order for service by publication of an abstract citation (the Hon. J. MacGregor). iv daily newspaper published in Wellington. Ec Alexander Brown (deceased).—Petition for appointment of new executors and trustees (Mr Sim).—Accordingly. fie Abraham Eiehardson (deceased).—Ban r.c-rman and Another v. Kichardson and Others. —Motion for directions as to service of originating summons (Mr Sim).—Accordingly. He Helen Jane Penny (deceased).—Motion for letters of administration (Mr Sim).-Ac-cordingly. Probate was granted in the estates of the following deceased persons: —John George Evans (Mr Macßlister) and Alexander Black (Mr Sim). Ko John Harrison (deceased), intestateQuestion of sureties to bo mentioned (Mr Sim).—Two sureties of £200 each. J. Wilkie and Co. v. J. K. Macdonald.—ln this previously-heard case, his Honor gave judgment as follows: It is in my opinion .unfortunate that this case was not referred to a common friend of the parties instead of being brought into court. Both sides have been innocently acting under a misconception, and not only is it difficult to ascertain the strict legal rights of each, but it is doubtful whether Itho application of them to the circumstances will lead to a satisfactory result. In July, 1897, the defendant wrote to the plaintiffs asking for quotations for 10,000 copies of each part of the " Zealandia Geography," a work which he proposed to publish, and on the 10th July the plaintiffs wrote stating the prices of each part seriatim. The defendant had stipulated that the paper, etc., should be at least equal to the " Southern Cross Geography," Standard 11. Subsequently it was suggested by the plaintiffs that a better quality of paper should be used, and the defendant assented to the suggestion. Nothing, however, was then said about the better quality of paper increasing the price. It is suggested by the plaintiffs that the defendant, who had published books before, must have contemplated that if better paper were used more would have to bo paid. It is evident, however, from the defendant's letter to the plaintiffs of the 13th December, ISD7, which was written after it had been decided to use the paper suggested by the plaintiffs, that the defendant did not consider that he was to be charged any more. In that letter the defendant'refers to the plaintiffs' letter of the 16th July as quoting for 10,000 of each geography. Then he says: "Would you oblige by quoting for 5000 of each. I'll certainly have 10,000 of Standard 11, but I'm doubtful about such a bi» order of some of the others." He thus- assumes that the quotations contained mi the letter of the 3Gtli July remain unaltered. If, however, there was any doubt about his assuming this it is removed by what follows. Ho goes on to say: "By the way 32pp (10,000), £25 is all right I suppose; 4Spp (10,000), £35 is a fair proportion; but 64pp (10,000), £81 is a tremendous allowance for another 16pp," and he goes, on to expostulate against what he calls the " enormous difference " in the charge for the Gl pages. Now these prices are the quotations given by the plaintiffs in their letter of the 16th July. If the defendant had on the 13th December apprehended he was to pay more than these prices for them when printed on \he paper it had been then arranged to use, ho'would not have written in this way. This mint have boon clear to the plaintiffs when they received tho letter. They could not help seeing that the defendant was labouring under what from their point of view was a misconception. If they intended to withdraw their tender of the 10th of July to supply 10,000 of each part at the prices there stated, or to make an increased charge by reason of the difference- in the paper, it was their business to make their intention clear and remove the misconception. This they did not do. Their letter of tho IGth December is simply a reply to that part of the defendant's letter of the 13th which asks for quotations for 5000 of each. They say: "Iv reply to yours of tho 13th hist., requesting further quotations for 5000 copy editions of the geographies, we beg to submit the following estimates, wliich are based on the superior quality of the paper.' Then they give prices of the first, second, and third editions of 5000 copies each of the different parts, and state that-in the second edition in cadi case stereotyping the type pages is charged, and that the stereotyping will have to be done immediately after printing off tho first edition. The plaintiffs in their letter of tho ICth December do not hint that their quotations of July for an order for 10,000 as one edition is in any way altered. The defendant, upon the receipt of the plaintiffs' letter of tho Well, in reply to his of the 13th of December, would properly be confirmed in the opinion which he evidently entertained when he wrote the letter of the 13th December—namely, that if ho ordered 10,000, arid not first'an edition of 5000, and then a second edition of 5000, he would be charged on the basis of the plaintiffs' letter of the 16th July, and irrespective of the < quality of the paper. It cannot be gathered from the correspondence that the plaintiffs' letter of the 16th December superseded their letter of the 16th July. In order to make out their case as alleged in the statement of claim they must slTow that the defendant acted on the offer of the 16th December, and not on the offer ot the ICth July. That is that he ordered first 5000 and then a subsequent 6000 of each part, and did not give one order for 10,000. Now, as shown by the defendant's letter of the 10th July, 1897, it was contemplated that although 10,000 of each part might be printed, yet only 5000 might bo issued at a time to Horsburgh in pursuance of a contract between Horsburgh and the defendant. That circumstance will account for the reference in the correspondence to issues of 5000 without it being necessary to assume that they were referring to editions or separate orders, and not to parts of one order for 10,000. That is illustrated by what took plnco with respect to Standard VI. There was a definite, order for 10,000 of that part in the defendant's letter of the sth August, but in his letter of the 20th August he speaks of the completion -of the first 5000 of that part for issue 'to Horsburgh. As the terms of the letter of the 16th July are more favourable than those of the 16th December so far as regards the publication of 10,000 copies the inference is that the defendant, if he knew that ho wanted 10,000 copies would not order two editions of 5000 each, but one of 10,000. So far as Standard II is concerned he knew that he wanted 10,000 copies iv December, 1897, as appears by Jiis letter of the 13th. The defendant states that lie orderrtl 10,000 of Standard 111 in January, and of Standard IV about April. He ordered 10,000 of Standard VI by letter of the sth August. Standard V, he says, he believed he ordered 10,000 of prior to the order for Standard VI. That the order given by the defendant was,for 10,000 for each part except in the case of Standard V is confirmed by the accounts rendered by the defendants. He is in each case charged not as for separate orders for 5600 copies, but as for one order for 10,000. If there had been separate orders it might have been exrjected that there would be a charge for 5000 copies, and then later on for another. 5000 copies, as there was in fact with respect to Standard V. The plaintiffs in rendering their account evidently considered an order for 10,000 as equivalent for an order for two editions of 5003. and that they were justified in so charging for it in terms of their letter of the lGth December. The defendant believes he gave an order for 10,000 of Standard V, as he certainly gave an order for 10,000 of Standard VI. He gives as one reason for his belief that as Standard V has a larger circulation, than Standard VI, and as he certainly gave one order for 10,000 of Standard VI he would almost certainly have given a similar order for Standard V. I do not think, however, that he did give one order for 10.000 for this Standard. His letter of the 13th July shows that he had not then made up his mind whether he would have 10,000 of this standard. On the 3rd August he writes: "I hear Standard V is on the machine; of course this is for 5000 only." In the plaintiffs' account rendered the 9th August he is charged as for an order for 5000 of this standard, whereas in all the other standards he is charged as for an order for 10.000. .Then in the plaintiffs' account rendered the 25t}i October he is charged with a second 5000. A letter from the plaintiffs accompanied this statement of account, and in it is said that the statement, includes, '• Second 5000 Standard V Geographies ordered since last statement was submitted." I conclude, therefore, that so far as the Standard V is concerned there was a first order for 5000, and then .an order for a second 5000. This does not come within the terms of the tender of July, njid the plaintiffs have a right c to recover as to this standard at the rates mentioned in their letter of December. With t respect to the other standards I think the defendant is entitled to succeed. He is not es- j topped by reason of his having received the account,-and not having questioned these particular items at the time, nor by reason of his having paid money on account. He was j questioning other items of the 'account, and asking for further details all along, and in his , letter of the 15th August he speaks of the total as appalling. At the time the account was j rendered the plaintiffs had not nearly completed the delivery of the books, but they c charge the defendant for the whole of them. They there-fore admit their liability under a contract to complete the delivery. That there was a contract to deliver is common ground. The plaintiffs would have had to deliver any- " how, and would be entitled to the agreed price whatever it.was. The fact that defendant beesmo aware, iv the course of the delivery., that - the plaintiffs' notion of the price was different from his own, and did not tell them so, would not estoi) him afterwards asserting what the ! 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