SUPREME COURT.

Otago Daily Times, Issue 11957, 2 February 1901, Page 3

SUPREME COURT.

IN CHAMBERS. Friday, Februaky 1.

(Before his Honor Mr Justice Williams.) Probata was granted in the following cases: — Georgo Harris (Mr Solomon), John Knight (Mr Calvert), Olof Christian (Mr Moore), John MTCenzie (Mr Woodhouse), Mary Josephine (Mi Gallaway), James Thomson (Mr Sim), Henry Butler (Mr Longuet), "VVilliain Robert Jones (Mr Sim), Mary Cameron (Mr Moore), James Noble (Mr Mncalister), Helen Anderson (Mi Payne), Charles Homer (Mr Mncalister), John Alexander MacLeod (Mr Fraser). Letters of administration were granted as un'der:— Harold Taylor Burton (Mr M'Koay), M»rgaret Dickson (Mr Sim), George Crosbie (Mr Stout), Clementina Helen Robinson (Mr Solomon), Francis "Winter (Mr Sim), Hector I M'Canghan (Mr Payne), Martin Tobin (Mr Macftlister), Jane Eaiu M'lCay {Mr Macalistor). Ke Janet M'Leod Fraser (deceased). —Motion I to .rovoko grant of probate to Isabella Finch ] (Mr W. D. Stewart).—Accordingly; probate to j be cancelled, and to remain in office.

Ee Janet M'Leod Fraser (deceased).—Motion thAt probate be granted to Henry William Reid (Mr W' D. Stewart).—Accordingly. He John Churchwood Bambery (deceased).— Motion for regrsmt of letters of administration (Mr Sim).—Accordingly.

J?e William James Mudie Larnach (deceased), Sievwright, and anotho; v. Walter Hislop.— Summons that the name of D. J. Lnrnach be struck out as a plaintiff and added as a ; defendant (Mr Hosking).—Accordingly, by consent,

Ho Josoph Baker (deceased).—Petition for leave to sell lands and pay off annuity (Mr Watson).—Accordingly.

Edgar v. the Miitakitaki Gold Dredging Company (Limited) and another.—Summons to add defendants {Mr Sim).—Accordingly,

He H, G. C. Harvey, a solicitor.—Summons for delivery of certificate of title, etc. (Mr D. M. J'mdiay).—Accordingly, within sevon days from service of order; costs (£2 2s) and disbursements.

Ee William Bulleid (deceased).—Motion for leave to sell laud (Mr Sim). —Accordingly. Re William M'Clea (deceased).—Petition for appointment of Public Trustee as sole trustee (Mr Creagh).—Accordingly.

Ro the Golcouda Gold Dredging Company (Limited). —Motion for order to file with the registrar of joint stock companies agreement as to issue of fully paid-up shares (Mr J. K. Sinclair). —Accordingly.'

Ik instrument from James Ritchie Williams to Eeid and Gray.—Motion to extend time foe registration o! instrument (Mr J. MacGregoi l ). —Accordingly; extended to February 4.

Eskdalo and another Souultr and others.— Summons to sanction certain pay.'nonts (Mr J. 3L Sinclair).—Accordingly.

Re Agnes Topping (deceased).—Pt iition for appointment of the Public Trustee as idministrator in place ot James Topping (Mr A. S. Adams).—Accordingly

James Beattie (appellant) v. Richard F; cdericlc "Wallia and others (respondents).—Appeal to District Court of Western Otago.—Summons fot writ of prohibition (Mr Sim).—To be heaid next Chambers day.

In to Angus M'Donald (deceased), M'Donald t. M'Donald.—Originating summons to determine a number of questions arising on the construction of the late Angus N'Donald's will — Mr. J. MacGregor appeared for the plaintiffs, Mr W. A. Sim for the adult defendants, and Mr W. 0. MacGregor for some of the testator's grand-children.—The matter was before ihe court on the 26tli July last, when a number of questions were asked and determined. It wiis then adjourned, in order to enable the grandchildren to be added as parties to the summons. This having been done, the matter now enme before the court again, and, after hearing.further argument, his Honor decided the remaining questions. ' ...

CIVIL SITTINGS. Friday, February 1.

(Before his Honor Mr' Justice Williams.) /lUSSELL V. THE LXVIATIIAN GOLD DIIEDGING,

COMPANY.

Claim, £209,' damages for wrongful dismissal,

Mr W. C. MacGregor appeared for the plainlift, Murray .Russell, of Dunedin, mining engineer, and Mr J, MacG regor for the defendant company.

His Honor gave judgement as follows" The plaintiff, in pursuance of a resolution of the directors/of the defendant company of sth Sep-tember,-was appointed dredgemaster by a letter to him of the same date from the secretary of che company. The appointment was thus worded: 'At a meeting of directors of the Levia- , Hi an Gold Dredging Company held this duy you were .appointed dredgemaster at a salary of £G per week.' There had been a previous correspondence between the secretary of the company »nd the plaintiff as to the terms of the plainiift's proposed appointment. Apart from «nything contained in tho prioi correspondence, the , appointment in the language above mentioned would certainly, amount to no more than a weekly hiring determinable by a week's notice on cither sidr. It is impossible to distinguish the words used here from those used in the case of Evans v. Roa (L.R. 7 C.P., p. 138). Nor do I think that there is anything in tlio previous correspondence which, read in conjunction with the letter qf the sth September, makes the hiring ather than a weekly hiring. In the letter from, the secretary to the plaintiff of the 19Mi Juno the secretary asks,' Are you prepared to accept R remuneration of £5 per week?' Then in' clause 5 of his letter he goes on to say, ' Provided your work meets with the approval of the directors, will you be agreeable to stay with the company for six or 12 months?' To' this, on the 2nd July, the plaintiff replies, ' I do sot Joel disposed to accept the sum stated by you, and unless the directors can see their way to give me £6 I am afraid these negotiations must fall through.' He also says: 'By clause 5, one would conclude that the directors were a/raid of my leaving them in~an unsatisfactory ; position. This idea, I must say, is quite crront- "■ ous, and I am prepared to say that, everything i going along smoothjy, I shall remain with the jj company for at. least six months after the : j dredge starts work.' Ido not think that these 1 Jotters make the hiring either a yearly or a six- j monthly hiring. The directors, on the one | hand,) ask that if the plaintiff's work meets b with their approval lit will stay ■ six or 12 j months. This indicates'as clearly as possible ] that the directors consider that they have the 1) right to discharge the plaintiff at any time be- j fore the expiration of the six or 12 months if J they think it expedient in the interests of the j company to do so. The plaintiff, on the other | jiand, says that, _ everything going smoothly, ■ lie will remain with the company at least six j months. That is that if tilings, in his opinion, j do not go smoothly, he lias the right to leave at ? any' time, and is under 110 obligation to stay ; for six or 12 mouths. Each party has, in j! effect, reserved to himself the option to deter- i) mine the engagement when he pleases. Some j notice would have had to be given; but in the | absence of an engagement for a definite term " it is impossible to say what notice. To ascertain, | therefore, what the term of the engagement is, | we have to refer to the letter of appointment of 5 the sth of September, and this constitutes a I, weekly hiring only. If there is a weekly hir- jj ing, then the ordinary measure of damages for wrongful dismissal would be a week's wages. There may be special circumstances which

- inchft- n ]n r gpr amount being given, as in ih» csee of Maw v. Jones (25 Q.8.D., 107), but if the salary runs, as the plaintiff contends, from

'... -j! cue appointment, there are no such special circumstances here. In that case the plaintiff would be entitled to £1S salary for three weeks from September 5 to September 26, the date of dismissal, in addition to the £6 paid into court. The contention of the defendant, however, is that the parol evidence shows that the saJary of the plaintiff was not to begin at once on his appointment, but when the dredge commenced operations, and that he was to go

to the West Coast and give his time and labou: jto the company, his expenses out of pocke only being paid. The plaintiff contends tha j parol evidence is inadmissible to vary tin j written contract. I nra of opinion that the re suit to the plaintiff will be the same whethei the contention of the defendant is sound or not j It is plain that the appointment o£ the plain' tiff as dredgemastet and'the arrangement thai j he Bhould forthwith visit the West Coast wers parts of one and the same transaction? Th( j letter of appointment of the sth September con' j tains the following parngraph:—' The director! J also resolved that yon should immediately proceed to the Coast and visit and inspect the various classes of tables used there and report to j the directors. As this will require to be done before directors can proceed with erection of tables on their own dredge, you will see the importance of there being 110 delay in carryin" this into effect.' Assuming the 1 contention ol the defendant to be correct, it is clear that the plaintiff was to go to the West Coast, and did go to the Yt est Coast, and gave his time and services to the company there in consideration of the contract cf the company to engage him as dredgemaster. The letter which appoints him itself gives him instructions to go- 1/ on receipt of that letter, the plaintiff had said! .* " on l? 0 the company would hive been I justified in saying that it was a condition of his appointment that he should go, and ill cancelling the appointment. The plaintiff did the work because it was a condition of the engagement that he should do it, and, according to tho defendants, that he should do it gratuitously. If he was not to be- engaged, there was 110 reason for his going. The contract to employ has been broken by the defendants, and if the contention of the defendant that it was a contract to employ in the future be adopted, the plaintiff is entitled to recover damages on the principle of Hochster v. Do Latour. In assessing such'damages, a jury would be justified in considering that tho plaintiff had given time and services as one of the conditons of his engagement. Suppose A promises to engage Ba3 a weekly servant- at a future date at a wage of, say, £1 a week, .in consideration that B gives him £10. B gives A the 510, and thereupon A declines to carry- out the contract. A jury might well conclude as against A, who hail taken the £10, that if B was willing to submit to the condition of giving £10 in order to get the situation, the situation was worth £10 to B, and that, although the employment when entered into might havo been lawfully determined at a week's notice, yet the probabilities were it would not be determined, and therefore that by the breach of contract ii hod suffered damage to the extent, at any rate, of the £10. ! Here one of the conditions upon which tho par- j ties entered into the contract that plaintiff should become dredgemaster was not that the I plaintiff should give money, but that ho'should give labour. The situation of dredgemaster which" the plaintiff bargained, for may, 011 the above principle, be taken to beworth the value of this labour, at any'rate., If by a breach of the contract the plaintiff has been prevented from obtaining this situation, his loss is what the situation was worth.; to him, and he is therefore entitled to recoi'er the value of this labour as part of his damages. I think this value is practically equivalent to the amount of the three weeks' salary to which he would bo entitled on the assumption that his salary began from the date of his apppointmcnt, and that lie is entitled to it in. addition to the £0 paid into court on, either assumption. ; I think also tho questions involved are of sufficient difficulty to justify the action being brought in the Supreme Court, and that- the plaintiff is entitled to Supretne Court costs. Judgment for the plaintiff for £18, in addition to the £G paid into court; costs on the lower scale, disbursements and witnesses' expenses to be fixed by tho registrar." WDERS V. FAMIEI.L. An action to be declared a partner in n mining venture. Mr A. S. Adams, .with Mr Calvert', appeared for tho plaintiff, Petal Andrew Lydfrs and Mr Sim for defendant, William John Farrell. His Honor gave judgment as follows:—"In order for the plaintiff to succeed i{ lies upon him to show that there was a contract between himself and tho defendant whereby the plaintiff was to become entitled to half/the profits Arising from the exercise of the powers conferred upon the defendant by the letter of the 16th of February, 1898, from the Mount Rex Company to the defendant, including the comraisfion promised in the letter from the company to the defendant of the 14th February, these letters embody the contents,of a draft etter which had been prepared by tho defondmt and had been submitted to a meeting of lirectors. The draft letter was admittedly prelared by the defendant without having conrtilted the plaintiff, as to its terms; it was not mbniitted by the defendant to the plaintiff i lefore it was laid before the directors, and,j ilthough the plaintiff was present a part of the irce at the meeting when it was discussed] le doe 3 not seem. to have been aware of its j

contents. Nor was he made aware, nor did he

•j inquire as to the terms of the letters of tli } 14th and JGth February whereby the defendant i was appointed agent of the company to dis 'i pose of its property on certain prescribed con j ditions and ivns to receive a definite remunera e tion. Not long after those letters were writtei | the defendant proceeded to Tasmania' at jiii j'own/ejfptmse; and was engaged for some tw< j months in eridesvouring to dispose of the com j pany's property. In so doing the defendan j took trouble, paid money, and incurred per 1 sonnl liabilities. While he was so engaged hi 3 communicate! with the company, and receiver an extension of his powers. Prom the letter; j of February oriwn'rdß the defendant was through out treated by the company as its sole agent There is nothing in the letters between the do ! fondant and the company that suggests that th< i plaintiff wan associated with him in any was as agent; they indicate, in fact, the contrary. ■Ultimafijly at the end of May the defendanl ! succeeded in disposing of 'the property, and I the transaction he entered into was confirmed by the company. During the whole of this | time the plaintiff remnined in New Zealand, and did nothinff towards effectuating the sale. ; No communications as to what the defendant j was doing passed between the plaintiff and the '< defendant. The ulaintiff made no inotii r ie? £ whatever as to what was going on. All that i passed was that the defendant at one time ; cabled for the plaintiff to come over to Tasj mania. that, the plaintiff asked fnr' £25, and that the defendant cabled that the plaintiff I wns not required. The ignorance of the nlain- , tiff as to the terms of the arrangement between the comrany and the defendant, his omission (throughout to inquire as to its terms and ns | to what was being done U"d<?r it, and his doing | nothing whatever himsolf under it are fijets J which are entirely inconsistent with the pl.iin- ] tiff being a partner in the errangement. The < remuneration which the defendant received was a compensation for the time and trouble he had given, the exnense he had ) incurred, and the liabilities he had j undertaken in successfully negotiating -a sale of the company's property and forming a new j rompanv. The plaintiff now seeks to share | this although he has given no time, done no | work, paid no money, and incurred no liability. I If a man claims that he is entitled to share I in the remuneration which was naid for work ■ which was done exclusively by somebody else j he must make out a very dear case. Taking j this into consideration, and looking? at the uncontradicted facts 03 above set fo-th, I am of I opinion that the balance of evidence is in [ favour of the defendant, aud that the plaintiff < must fail. Judgment for defendant; costs on highest I scale (as on £501). 1 StURI.E V. WEAVERS. Claim for the possession of the Wator'oo Hotel, Caversham, and £100 damages for breach of covenant. . Mr Sim, with hint Mr Findlav, appeared for the plaintiff, Geor?e Searle; and Mr Solomon, with him Mr Hanlon, for. the defendant, John Joseph Weavers. ■ His Honor gave judgment as follows:—"The plaintiff snea the defendant to lecovor posses-

sion of a hotel. The plaintiff is the lessor ami the defendant the assignee of thp lessee tinder a lease of the hotel for a term of ilvo years from 21st February, 1893. The lease contains several covenants by the lessee for himself and his assigns, and amongst others 8 covenant in the following terms:—'And will at all times manage and conduct the business thereof in a lawful, orderly, and proper manner, and will not do or commit or permit or suffer to be done any act, matter, or thing whatever against the provisions of " The Licensing Act, 1881," or acts amending the same or any future statutory enactment for the time being regulating the conduct of hotels and the sale of intoxicating liquors, whereby or by means whereof flliy license for the said hotel shall or may be forfeited or become void or be rendered liable to be taken away, suppressed, or suspended in ally manner howsoever, or any matter or thing whereby the good name aud reputation of the said hotel may be injured or prejudicially affectcd.' The lease contained a proviso for re-entry upon % the breach of any covenant. The plaintiff aly leges that the defendant on a Sunday when the tj premises were directed by the act to be closed sold beer to two persons, that he was convicted jj| of so selling find fined £10, and that the conil viction was directed to be endorsed, and was | endorsed, on his license. The defendant adp mits the conviction and the endorsement, but f! denies the allegation that he so sold the beer, fi If it were necessary to decide it, I should hold & that the sale which took place was a sale by | the defendant, so that if the sale of beer by t the defendant on one occasion during prohibited C hours was a breach of the covenant, the plainI tiff would be entitled to' recover. The question Eis whether such a sale is a breach of the I covenant. The construction of a somewhat simi- | lar covenant has been discussed in England in K the eases of Wooler v. Knott (1 Ex. D., pp. 121, | 2G5), Fleetwood v. Hull '21 Q.B.T) 35), and Bry- | ant v. Hancock (93. 1 Q. 8., 710, 99 A.C., 442), fi and these cases indicate pretty dearly the prinj oiples which should be adooted in the constrncj tion of such covenants. The covenant here has j three separate and distinct parts, each imposing s a different obligation ou the defendant. The i first part ends with the words ' orderly and 3 proper manner,' and the second ends with the s word? ' suspended in any manner howsoever.' : The words.'and will not do or commit or per- - mit or suffer to be done,' which occur at the ;) beginning of the second part of the covenant, J govern and form part of the third part of the { covenant. Has it, then, been proved that the s defendant, by the act above mentioned, has j committed a breach of either of these, three obliui gntions? Take, first, the third part of the cove- \ nant. The object of this is to protect (lie charj acter of the house in the interests of the land- - lord, so that trade might not be lost or the ] kind of trado rendered less respectable, and j decent people, iyho might otherwise be expected i to frequent the house, would no longer do so. II do not think any jury would hold that the j good name and reputation of the hotel as n place of public resort and entertainment was, or was like'y to be, prejudicially affected by the j sale by the defendant on this particular Sunday of two glasses of beer, even though followed by a conviction. I certainly do not hold so. As to the second part of the covenant, the act of the defendant could not cause the license to be forfeited or become void, nor, apart from the risk of non-renewal or reduction, could it render it liable tc be taken away, suppressed, or suspended. If the defendant were convicted again, ; then by sections 205 and 207 of the act of ISSI

liability to forfeiture of the liccnse mid in cer-

| tain events disqualification of the premises | would follow. But. Ac was said by James L.J. | in Woolci v. Knott (page 2G7), ' It ie not to be si presumed that a psrion is going to commit tj other offenoes.' ii, is said, however, that by || section 12, subsection 6, of 'The Alcoholic

|j Liquors Sale Control Act, 1893/ the fact of the j existence of the conviction gives the com[j inittce a discretion to refuse a renowai p. of the license, and .that by section 8, subr section 9, paragraph b, of the Amended Act fj of '£95, if a reduction vote is carried the com-

| miitee in giving effect to it is bound first to ; i ''educe licenses which have been indorsed for

various offences, and amongst them for selling *| liquor on Sunday. The latter, however, in|.j volves several remote contingencies. The j twenty-second section of the Act of 1893 proj. vides that any licensed premises Iwving run | Iwc consecutive year? without indorsement jj shall be free ,of all prior indorsements. It is g not to be nresumed that there will be a subtj sequent indorsement, and if Parliament runs its | ordinary course there will be no local option >| do!) until more than two years after the of-

5j fcncß has bnen committed. It would only be J- in the event of n- general flection hanpemng J between December next and the annual licensij meet inn in June. 1005. thai there would he <j a'local ortimi noil.- and then the result of the ?] po'l would have to lie in favour of a reduction i< of licenses for the act of the dofondant to have j; any possible influence. (See Act of 1P95. aectiou S4, subsection 2). I think, however, that on the f l, true construction of oection 32, subsection 6, the i indorsement of the license for this offence given { the committee a discretion to refuse a renewal jof the license. T do not thin!; the words of J the covenant bind the tenant not to do anything ' tc prevent tlio renewal of the license. The j covenant refers to ' anv license,' that, is to any u license for the time beinpr in existenoe. Hud j the words 'for the time being- 1 ' been inserted i a-fter the words 'any license' the case wouldhave come oxactlv within the authority of ' Wooler v. Knott, .but. it seems to me that these [ words are necessarily imulied. None of the. | wcrds which follow are apt to exnreas the case, of the refusal to renew a license. The words i ' forfeited,' 'or become void.' 'be rendered I liable to be tnlten away, suppressed, or sus- ■ nended,' nil refer to a license which has a ; nrespnt existence. The word 1 suspended' evii dontlv refers to the provisions of section Ififi of i the Act of IPBI. To refuse to ronew o- license is to refuse to grant a new license on the ex- J

ipirntion of an existing one. To 1 take away' or ' suppress' an existing license is one thing; to refuse tn renew an existing license is ouite another. Had the covenant been to do nothing whereby the license should be 'd'scontiuued ' or ' withheld,' it might fair'y have been contended that these wnrds referred to a ' discontinuance' or 'withholding' after the expiration of the exist'ii? license, and so related to a renewal; but the words 'take away' or 'suppress' carry no «uch inference The terms ' renewal' iyid 'refusal to renew' as applied to a bublican's

3 lieenso aTa frequently referred to ill the statute, | and are in common use colloquially. Iu the | instrument before us a nrevious covenant exj nressly refers to renewals. For the lessor to i| have said that if the lessee did anything wltere- | liv there was n risk of the the license being refused would have been simple and 3 easy. But that was not said, and instead thoro | h a cloud of verbiage. In such circumstances 1 fhe lessor cannot ask the court to construe in 3 his favour expressions the meaning of which ■■ are at the best doubtful, and enforce a. forfeiture 1 on the strength of them. As to the first part j of the covenant, whWi obliges tJie lessee at all j times to conduct the business in a lawful, j orderly, and proner manner, the plaintiff, in order to succeed, must establish that any ] single infringement of the law constitutes a j breach. That is, that it is equivalent to a j covenant that the lessee will not commit any ! offence against the licensing acts. B that had j been intended it would, as is pointed out in j t.hc English cases, have been easy enough to

Ihavc said so. As stated by James L.J., in AVooler v. Knott: 'If the lessor thinks fit be can express in plain words that an offence or a conviction shall cause a forfeiture of the lease.' At the hearing I asked counsel why, in drawing leases of this kind, the covenant was not so framed, and I was answered that no tenant would take a leaso on such terms. I have no doubt that is so, and the fact is a good reason for not giving such a meaning to a

| covonnnt of doubtful construction. But there | is the further objection that the second part jj of the covenant from any point of view is not K a general covenant against any breach of the G law, but only against thoso breaches of the 0 law by means whereof certain specified things 0 may happen. The first part of the covenant jj would, therefore, on the plaintiff's contention

be an absolute covenant against any breach of the law; the second part would be a qualified covenant against particular breaches only. In that case the second part of the covenant would

be mere surplusage. As pointed out in the judgment of the Court of Appeal in Bryant v. Hancock (page 720): 'It would be wholly unreasonable to hold that both the first and the second part of the covenant referred to the same thing, so that both an absolute and qualified covenant existed as to the same thing. It is necessary, therefore, to endeavour to find out some other meaning.' In my opinion this part of the covenant relates merely to the general conduct and management of the business, and the proof of the commission of an unlawful act oh a single occasion is not sufficient evidence to show that the general conduct of the business was not lawful, orderly, and proper. As was in the Court of Exchequer in AVooler v. luiott, the court must be thoroughly satisfied of the construction of the covenant contended for by the plaintiff as establishing a forfeiture before they give an opinion which is to destroy the lease. lam not satisfied. Judgment for the defendant."

Judgment for defendant, costs on lowest scale (as on £300), disbursements and witnesses' expenses to be fixed by the registrar.