COUNSEL IN BOX

Otago Daily Times, Issue 26842, 5 August 1948, Page 7

COUNSEL IN BOX

GOWN SHOP CLAIM WITNESSES RECALLED LOST RECEIPTS RECOVERED Junior counsel for plaintiff in a civil claim and counter-claim involving the sale of a gown shop, being heard in the Supreme Court in Dunedin, removed wig and gown yesterday to give evidence in the case. He was called by leading counsel after the court had heard on recall two witnesses for the other party. The case, in its sixth day yesterday, is one being heard before Mr Justice Kennedy and a jury of 12, in which Rodney Augustine Parry claims £2OOO allegedly owing under deed from Joseph and Julie George. The Georges are counter-claiming £3OOO damages for loss on the gowns, due to allegedly fraudulent representations. Mr I. B. Stevenson, with Mr M. Joel, is appearing for the plaintiff, and the Georges are represented by Mr F. W. Guest, with Mr W. McAlevey.

Seeking leave to recall the Georges, Mr Guest said that in the early stages of the case reference was made to four lost receipts, particular reference being made to a receipt dated October 20, 1947. “ The receipts have now been found," Mr Guest explained. ” and I wish to call Mr and Mrs George to testify to the documents and put them in as exhibits.”

Formal objection to the admission of additional evidence at that stage was made by Mr Stevenson on the grounds that the defendants’ case had closed. He would also object on the ground that secondary evidence on the content of those documents had already been admitted, that the documents could have been discovered by proper search, and that an affidavit had been prepared and filed, declaring that the documents had been lost. “If the evidence is to be admitted it may be necessary for me to apply for leave to investigate any matters which may arise,” Mr Stevenson added.

His Honor said he thought that if the receipts referred to were found during the course of the case, the witness coulcl be allowed to be recalled to produce them, but should it be necessary for a party to have time to deal with that matter he would allow time. Evidence by Counsel

After the witnesses had been recalled, Mr Stevenson intimated that he wished to put his colleague in the witness box to prove matters in relation to one of the receipts. “ I realise, your Honor, this is an unusual request, but in unusual circumstances • I feel that perhaps an unusual course may be adopted,” he said. No objection was raised by opposing counsel and his Honor agreed, pointing out to Mr Stevenson; “ You are entitled to call evidence if rebutting a suggestion that you have recently concocted a fabrication." He was receiving the evidence with the full concurrence of counsel.

The hearing did not resume yesterday morning until more than a hour after the usual time. When the court assembled his Honor told the jury that he had been engaged on matters touching the case. The afternoon session was similarly late in beginning. The plaintiff, in cross-examination yesterday morning, illustrated the manner in which he said Mrs George, with her sister and Mrs Farry, had examined the gowns in the shop before the sale. The gowns were swung out from the rows and in some cases ” they would get a frock and walk up to the mirror, holding it in front of them to see what it looked like.” The witness said he had no wish to change his evidence that they had examined every single frock. To the best of his knowledge they had done so, though they may have missed one. Questioned about a subsequent conversation concerning the gowns the witness recalled that Mrs George " didn’t like a lot of them ” and that her sister had condemned them all.. .

“ You ask the court and the jury to believe they entered Into a contract to buy at £3400 when one of the parties did not like a lot of them? ” —" Quite true.” < Term in Agreement Re-examined, witness said he believed throughout that his staff at the factory were making model gowns. When the agreement was being drawn up for his purchase of the factory, he insisted on the words “ 400 model gowns ” and not “ 400 frocks ” being included. Lillian Farry, wife of the plaintiff, said that at one stage the gowns made at the factory were stored at their home. As a woman closely interested in matters of dress she considered them “ very good,” and none of them were faded or soiled. The witness agreed that she had a flair for the observation of gowns and dress, describing to the court in detail the garments on the five models on her only visit to the shop when they were so arranged. These she identified among those exhibited in the courtroom. Under crossexamination, the witness denied that she knew that four of the five dresses had been picked out by a previous witness during the case, nor had she discussed them in the witness room. To his Honor she said she had seen the gowns in question a week or so ago in the shop, when she', had recognised them as being those that were on the models. To Mr Guest, the witness explained that for the reason that she had seen the dresses recently she was able to describe them in detail earlier in the day. Discussing the five gowns in re-examina-tion the witness said one of them was called the “ Wicked Lady ” because it was “ very daring,” being cut low at the back and front.” Georges recalled When recalled, George said he had lost the receipts sometime in February or early March. He identified a receipt for £5 as being one given him by the plaintiff and dated October 20, 1947. The document was the first payment of the deposit on the shop, gowns and fittings, and these were mentioned on the paper. The other receipts he identified were for £45 on October 27, £950 on October 29, and £4OO on October 31. To Mr Stevenson the witness said he had handed the receipts to his solicitors, who had lost them Corroborative evidence concerning the receipts was given by Mrs George. Mr Stevenson was given leave to call Maurice Joel, solicitor, junior counsel for the plaintiff. Witness said that in conferring with the plaintiff on the case, in December, the plaintiff’s recollection of the receipt was that the words' “ after inspections and approval ” concerning the gowns were included, being consistent with the plaintiff's evidence in chief. Tire case was adjourned until this morning.