SUPREME COURT..

Otago Witness, Issue 2210, 9 July 1896, Page 20

SUPREME COURT..

IN BANCO.

Tuesday, June 30. ' (Before his Honor Mr Justice Williams.) •CKKVVR V. REID. j Case on appeal from the decision of tho sttpon- f Ikiy magistrate afc Duncciin. .. . Mr Sim appeared on behalf of the appellant, AlberVM. Taaffe, commission agent, Wa'mate ; and Mr Hnggitt on behalf of the respondents, Donald Reid and Co., stock aud station agents, Dunediu. In this case, the argument on which was heard on June 17, his Honor delivered judgment as follows :— " In this case 1 think that for several reasons the appellant is entitled to succeed. The correspondence between Taaffe and Donald Reid and Co. has been treated as if it contained a contract of sale by Taaffe either on his own account or for an undisclosed principal. 1 hardly think that is so. The correspondence on Taaffe's part seems to me to be in the nature of instructions to Donald Reid and Co. to sell the chaff thero mentioned on the t? rms specified. It is clear from the correspondence that Donald Reid and Co. weie aware that Taiffe was instructing them to ' sell chaff which belonged not to himself but to a client. In such circumstances it seems to me that it was plainly the duty of Donald Reid and Co., in selling the chaff, to contract with the purchaser in such a form that Taaffe would not be personally liable as a principal upon the contract. What Donald Reid and Co. did was to enter into a contract with'Laing and Young for the sale of the chaff in their own nan.es as principals, not disclosing the fact that they were acting merely as agents. ' They were tued by Laing and Young for the breach of tbaf contract, and .judgment was given , against them for damages and costs. It was m respect of these damages and costs .that; Donald Reid and Co. sued Taaffe in the conrfc below and recovered them in the judgment which is now appealed againßt. In order to enable Donald Reid and Co. to sustain ihat judgment it must appear that Donald Reid »nd do. were authorised either expressly or by implication to enter into the contract with Laing and Young in their own names as principal?. It does not appear that there was tho slightest necessity for their doing so. They conid have entered into the contract expressing themselves to have contracted for the sale of the chaff on account of the owner. This was tho form of contract in Pike v. Ougley (18 <j.8.D., 708). Had they done bo, they could not have-been sued on the contract a« principals. Donald Reid and Co. also, in selling the chaff, ■were acting as brokers, and a broker, in the absence of proved custom, has no iij?ht to contraat ia his own name (Baring v. Come, 2 B and A1.,'1,43). It was laid down in that case that if n broker sells in his own name he acts beyond the ticope of- his authcrity, aud! his principal is not bound. It is trne that it was contemplated that the chaff should be consigned to Donald Reid and Co. for the purposes of delivery to the pu> chafer, und that they should receive payment for it. There is no reason, however, why these duties jhould not be suptradded to their duties as brokers for sale without altering their potition as brokers (Brown v. Boorman, 11 Clk. and I'd. 1). Apart' from special circumstances or proved local custom, a factor is the only agent for s*le who has authoiity to sell in his own name. There i» a very good reason why no implication should be made that an agent for 6ale has authority from his principal to contract in his own name. If he had such an authority the principal would run the rl*k of the purchaser becoming entitled to set off against the purchase money a debt clue to him from the agent. '1 his would be tho case if the circumstances attending the sale were calculated to induce in the mind of the purchaser a reasonable .belief that the agent was telling on his own' Recount aud not frr an undisclosed principal (Cooke v.- Eshelby, 12 App. Cas., 271). On that ground alone, therefore, I think the appellant is entitled to succeed. If, however, Donald Reid and Co. had authority to enter into the contract with Laing. and Young in the form they did, I think' it is clear that it was through their own fruit that* they wewcasfe in damages for the breach of it. They •were nmde aware' on the" 6th of November that they 'would "be' u» able to fulfil their con tr»ct for • the 'delivery of the balance of the chftff to Lajng and Young. A prudent. business man, knowing this, aud knowing the pries of chaff in Ihe market at the time, would, in order to protect himself from the rink of a change in tho price," and the consequent liability to damages, have given immediate notice to the purchasers informing them of his inability to fulfil the contract. This' Donald Roid and Co did not do until the 14th of November, wheu tho price of, clnff had gone up. Their loss, therefore, was caused, not l)y their entering into the contract or by the default of Ta'affe in not- enabling '/them to complete it, but by thbir own want of prudence. I can find no- authority that the indemnity of an agent by his principal extends to covor losses thus occasioned. Taaffe had done all he could in the matter by definitely informing Donald Reid and Co., v by his letter of the 6th of November, that ha ooufd not complete tbe contract. Donald Reid and Co. had not then informed him who the purchaser was, co that it was in>po3?iblo for - him to giro notice to the purchaser. I say nothing as to tha other ground that was taken, that the contract with Laing and-Youngwas for 80 tom of chaff when .tbe instructions to Sell were about 80

tons, except that, thoueh tho point is a narrow one and 'not a very creditable' point to be taken, it seems rather difficult to get over. I think, therafare, that the appellant is entitled to judgment." Coits of the appeal were fixed at £6 Gs. Mr Sita asked if judgment would be entered for the defendant. His Ho»'or replied in the affirmative. " Mr Haggitt a«ked.for leave to appeal under section 16 or the Court of Appeal Act. , The ground upon wh'ict he desired to appeal was that DonaldBeid and Co. wer,e. nofc, brokers at all, but were merely commission, .agents, and that the cases as ta liability had no application.. . ' His Hoidr : That, of sourse... was your contention. Ife is a .email, .matter. Suppose- you fiuccood? „„ ■ - ;Mr Haggitt : Then we'll get £25. If not, we'll lose £25. His Honor : I was considering the question of coata. -•- ... . - Mr Haggitt said the question of costs did not enter into consideration, because the present appellant would be cv tided to the same costs if the amount was £2CO as if the amount was £25. Mr Sim objected" jo anappeal being granted. It was merely a question of construction of written documents. Hi» Honor said.supposiug the respondents were unsuccessful in the Courtof Appeal they would be in a worse position* than they were now in, and supposing they were successful in the Court of Appeal they would be in a worse position. The amount at stake -waß so small and there was •nothing special In the case, co that if he were to give leate in this case he would have to give leave an every case where an appeal from a magistrate ■was allowed on a point of law, whatever the amount was. He did not think the Legislature

•meant that. -■■-■■ Mr Htggitt urged that there were several important principles involved in the case, if that was lo be the test. The first wai whether every coraknisaion agent was- a broker, aud tho second was whether a commtaion agent was not entitled to pnter into contracts in his own name. That had paver been doubted before that he heard of, and it was the universal practice. . His Honor said that might be, but there was no svidenca about It. The same question as to fcvhether leave to- appeal- should be given or not Was constantly arisino; in England, and leave was constantly being refused. .Mr Hageltt said he ■ would not trouble Ws Sonor to decide now, but -he would renew the ' application. Mr Sim consented to the application standing «yer.

tNDER "THE DIVORCE AND MATRIMONIAL CAUSES ACT 1867."

Wednesday, July 1. (Before his Honor Mr Justice Williams.)

DONALD V. DONALD AND SUTTON. Petition for dissolution of marriage. Mr John MacGreggr appeared on behalf of the petitioner (James Donald, carpenter, Purekireki), and there was no appearance on behalf either of the respondent (Elizabeth Donald) or. of the tti-respoadent (OUariw J. Button),

William James Hall (registrar of births, deaths, and marriages) gave, evidence that James Donald, tho petitioner, was married to Elizabeth Ronald at the registrar's office on tho 23th September 1884, and produced a copy of the marriage certificate duly signed by the parties Jame3 Donald, the petitioner, deposed that he liyed at Purekireki. He went to Western Australia on the IBfch December 1894 to work at his occupation as ' carpenter. His wife, who was quite willing that ho should go, was left behind on his small farm at Purekireki. While he was away he sent money (about £28 10s) to his wife ia all, He had always been living on good terms with hiß wife. Witness nevar thought of coming back until he got a notice from Mr Wood, of Halclutha, that hie wife had called a clearing sale. Ho also received a letter from his wife which led him to Buspect that there was soniothing wrong. He left Western Australia about the 17th 'September last, and arrived at Dunedin on the 17th October. Sutton was iv Dunedin at the time. Hia wife met him on his arrival, aud he found sue was enceinte. He accused his wife of having been unfaithful to him, but she dftniad that, and, after taking her to Dr Jeffcoat, he gave her the benefit of the doubt, and furnished a house for her in South Dunediu. lie still thought thero was something wrong, and ho kept on asking her about it. She alwaya started crying, but at last she said he could kill her. He fla'id, "No" j but he wonld give hor'nll the money he had on him if she would tall him the truth, and she could go where she liked. Ho gave her £9, and she 4old him that she had been unfaithful with Sutton. Witness wrote out a confession, and got her to sign it. That was on the 25th October. He took her into town and left her at the Glasgow Restaurant, where sbe had been slayiug when wibnes* returned. She Baid she wanted to go to the North Island to try and put tho responsibility of the child on to Sutton. Witness paid her passage to Wellington, and had two. letters from her ironi there. He did nofc know when the child was born, but the respondent had told him she Expected it about the.end of November. , . „ William A. Finlay, school teacher at Purekireki, gave evidence that he had been associated a good deal with Sutton in religious work. Soon after Donald left ho noticed that Sutton was paying visits to Mrs Donald. Sutton was in the habit of going to see h3r chiefly in tha evening and, after n cortain period, regularly on Sundays. Witness had seen him there very lute at nights. His conduct caused a scandal in the district, and witness spoks to him about it. telling him that for his own reputation and hers he ought not to visit Mrs Donald so frequently as he did. Witnesß thought there were occasions when Sutton had no business to be thare— chiefly in the evenings and on Sundays. Sutton lived with his parents about two' miles and a-half from Mrs Donald's. Sutton said it was a business of his own. Witness replied that he recognised that, but their reputations weie nt stake. Witness remiuded him of the scandal that was going round the district, and asked if he knew that ho was blamed for baiug the father of the child Mrs Donald expected. That would he in Augußt last Sutton said he knew that, but he said that people should not talk until it was clear that Donald was not the father. Sutton used to drive Mrs Donald to Balclutha when she wanted to go there. His Honor observed that the evidence against the respondent was satisfactory, but that against Sutton was slight. Of course, the respondent's admission that Sutton was the father of the child was not ovidenca against Sutton. The only evidenco against Sutton was the evidence of the last, witness, and that evidence could hardly be said to amount to more thau a suspicion. •Mr MacGregor said he would not ask for a decree against tho co-respondent. Uis Honor : You are entitled to a rule nisi for dissolution of marriage against the respondent. " A rule niti was accordingly granted, with leave to mbvoifor a- rule absolute aftec three months.

CIVIL SITTINGS. (Before his Honor Mr' Justice Williams.)

ROBERTSON AND OTHERS V. RODERTSON AND OTHERS.

• Suit for the interpretation of a will. Mr Sim appeared on behalf of th 9 plaintiffs, Thomas Gilfespie Robertson, sheep farmer, of Heriot; Robert Robertson, stock dealer, of Lawrence; William Alexander Robertson, shepherd, of Lawrence ; and Margaret Stewart, widow, of Lawrence. Mr F. R Chapman, with him Mr J. A. Oook, on behalf of the defendant, James Robertson, farmer, of' Lawrence ; and Mr C. M. Mouat on behalf o£ the Qther defendants, JanetvGillespie Robertson, widow, of Lawrence ; Jessie Talbuys, wife of Wiljiam Thomas Talboya, ,draper, of CrOHVw>H{ and Catherine .Maton M'Beatb, wife of William M'Beath, manufacturers' agent, of Dunedin. The stitement of claim set forfch that Peter Robertson, late of Lawrence, sheepfarmer, died on October 24, 1895, leaving a will dated June 3, 1895, with a codicil thereto bearing date September 28, 1895. Tho deceased appointed the defendant, James Robertson, sole executor. The defendant Janet Gillespie Roberlson was the widow of the deceased, and the other parties to the action were all his children. A question had -arisen between the plaintiffs and the defendant James Robertson as to whether ho was entitled absolutely and for his own benefit to the freehold furni containing 386 acres, adjoining the town of Lawrence, and tho freehold sections situated iv Lawrence devised to him by tie will, or whether he held the same in trust for all the children of the deceased. Further questions had arisen between the parties interested as to the construction of the will. The plaintiffs prayed as follows:— (1) That the corn t interpret the will and declare the rights of the parties interested. (2) T,hat tho estate of the deceased might, if necessary, be wholly or partially administered by the court. (3) That all necessary inquiries and accounts might be hud and taken. (1) That au order might be made as to the costs of thi* action. (5) That'tho plaintiffs might have s,uch further or other relief in the premises as the court should deem just -■ ; In an amended statement of claim theplaintiff* ' repeated and adapted all the allegations contained I in tho original statement, and said that the following were the questions in connection with the \ interpretation of the will of the deceased on which I they desired to obtain the opinion of the court :— (a) was the defendant James Robertson entitled absolutely and for his own benefit to the freehold farm, containing 356 acres, adjoining the town of Lawrence, or did he hold the same in trust, and if so, in trust for whom? (6) Was the defendant James Robertson entitled absolutely and for his own benefit to the farming stock, implements, utensils, and plant, and the moneys belonging to, or due to, thedeceased, bequeathed to defendant by the will, or did he hold the same intrust, and •if so, in trust for whom ? (0) In what Bhafe3 and proportions the proceeds of the Greenhill farm and the other property devised and bequeathed to the children were to be divided unionist them, it being impossible to divide the same in the shares directed by the will? In his statement of defence James Robertson admitted the allegations of fact, and claimed that he was entitled absolutely and for his own benefit to the freehold farm adjoining' the town of Lawrence. He also said that particulars should be given to the court and the defendants as to the further questions which it was alleged had arisen between the parties interested, and that until this had been done it was impossible for him to know what further questions were referred to. As to the first paragraph of the prayer to the plaintiffs statement of claim, the defendant said that until particulars wore given of the different points in the will upon which the intei pretation of the court was sought, he was unable properly to prepare for the trial of the action and the argument of legal points which might arise thereat. As to the second paragraph of the prayer in the statement of claim, defendant said that he was appointed sole executor of the will of Peter RoDertson. He further said that ho was prepared .as executor to administer the estate and to carry out the trusts of the will, and that it was therefore unnecessary, until he had failed to satisfactorily discharge the duties of executor, that tho estate should be wholly or partially administered by the court. The defendant, moreover, suid that it was premature at the present stage of the administration of the estate to ask the court to make inquiries and take accounts in the estate.. The defendants, Janet Gillespie Robertson, Jessie Talboys, and Catherine Mason M'Beath, admitted the allegations contained in the state1 ment of claim, and submitted their rights aud

interests in the action to the judgment of the court. ■ Mr Sim said before groceeding to argument he would call Jamo3 Robertson as to the state of the tostator's property at the time the will was made and at the time of his death.

James Robertson deposed that his father had the Greenhill favm, about five miles from Lawrence. The home favm adjoined the town of Lawrence. Iv hia father's lifetime tbe two farms were worked together. The stock on the farm was about the samo at the time his father's will was made as at the time of his deceaie. The fapis were worked principally as sheep farms, part of the home farm being used for growing crops for feed. During the last three or four years a flock of from 300 to 400 sheep was usually kept on the home farm. There were also some sections m the township of Lawrence which belonged to ma fathor. There were no mortgages on the lands at the time hts father made his will, nor yet at the time of his death. With the exception of one or two deeds, the Colonial Bank hela tho whole of the title deeds of the properly, as a security for an overdraft of iobo los oa. . lne estate had been released about a month a?o from a liability on account of his brother's farm to Wright, Stephenson, and Co. Tha bank had not been paid yet. Witness had sold the stock on the farm for £855 5s fid. He had also sold the season s wool for £347 11s. Part of the proceeds of the wool and stock he had applied to paying debt 3. Having sold the stock, ho had replaced it by other stock. He had now 1700 sheep on turnips. At the time his father died hia brother Xhomai owed the estate about £300 in respect of promissory notes, and there was aho a contingent liability to the Colonial Bank of about £300 odd under a guarantee. He had sued his brother on the promissory notes, and Judge Ward said he was not entitled to sue.

Mr Sim said the plaintiff's contentions shortly were these : First, that no words wore used by the t stator which indicated clearly that James Robarfcon was to take the property in^ question abaolntely and for hi 3 own baneflt. b condly, these trusts were clearly declared as a part of both tho real aud personal property in question and as thero was no gift to Jamos Robertson or any other person of the beneficial interest in the part remaining unconsumed by such trusts, there was a resulting trust iv favour of the testators wife and childreu as to such part, and they took up as in an inte3tacy. The onus was, he submitted, on James Robertson of showing that he took a boneficial interest. It was for James Robertson to show that by the terms of the will the property iv question was devised and bequeathed to him for his own use. There were no express words of gift used by the testator which indicated clearly that he wished to give a beneficul interest. Trusts hid been declared which applied to the whole of the property devised and b;queathed ; but those trusts would not exhaust the whole of the property, and leareed couOßel submitted that so far as these trusts were not exhausted there was au intestacy. , „ Mr Mouat observed that he had nothing to add to what Mr Sim had said. . Mr Chapman submitted that'll proper analysts of the will showed that it was intended that the testator's eldest son, James Robertson, who was tho executor, should take the properties other thin Greenhill, subject only to any burdens imposed on him by tho testator. At to che facts, it was apparent that Greenhill was a separate proporty, distant five mile 3 away, with a separate establishment, in a sense— with a separate house and steading. The home farm, no doubt, was worked along with the suburban sections in the Borough or Lawrence, and what was in the will called the homsetead stood on one group of town sections. On these town sections also stood appliances for working th« home farm. No doubt, so far as the accounts went, the property was worked as one concern during the te3tatora lifetime. Lsarned counsel hiibmitted that, this question must be decided on the construction of the will upon a considetation of the language used by the testator aud of the surrounding circumstances. ■ Mr Cook said the only dispute regarding the question of law in the caso was as to the application of tbe law to the particular will, 'lha interpretation was to be ascertained from the words of the will itself. In all cases which had been decided on wills of this sort the judges had found that it was more or less necessary to c xaroine the wills minutely to see if any guide as to the intention of tbe testator was to be found in the document it3dlf. The first point that struck one in the will was that though tho tetitaior hud four sons, all of whom were well advanced in years, he made the eldest son his solo executor, and the devise and bequest of the properties were made specifically to him. Learned counsel referred briefly, to certain anomalies in tho will, but submitted that if it were looked at as a whole it seomed perfectly clear that' James Robertson was put in charge of everything, and that the testator's idea was that none of the children should take anything— there should not even bo a salary to the executor-until all the debts were paid off, but after the payment of the debts the testator provided for the ssle of one property, leaving the other for the oldest son.

Mr Sim having replied, His Hnnor said : As to one branch of this inquiry I have no reasonable/ doubt. As to tho other I bnve very greit doubt, indeed, and I do not see ray way to giro a decision at present. On the one branch, however, it may be as well that I should indicate my opiuion now, so that, if possible, the parties may come to some arrangement ia respect of the whole matter, because, as I have said, the other matter presents great difficulties and there may be considerations affecting it which have not been mentioned in tha argument. I think, so far as the land is concerned— tho home farm and the parcels of land in Lawrence— that James Robertson is entitled to them in fee simple. The contention of the plaintiffs is that these were only partially disposed of by the will, and that, so far as that partial disposition doeß not extend, there^is a resulting trust in favour of the next' of kin. It is suggested that the will shows that the gift to James Koberfcson was upon a specific trust, and that he took the land upon that trust for 'the purposes declared, and it is ' suggested that as the purposes declared did not exhaust the whole of the property there was a re. suiting trust in respect of the unexhausted part, 'That these parcels of hind devised to James Robertson were subject to certain trusts is sufficiently plain, although the word "trusts" is not used in the will. It does not, however, follow from the fact that the property wai subject to certain trusts that what was not required tor the performance of those trust* would result in an intestacy. The rule laid down in Theobald "Ou Wills," which is quite in accordance with the cases, is that if a gift is subject to trusts tho donee takes what i« not required for the performance of those trusts. On the other hand, if a gift is upon trust the donee takes the whole for the purposes declared, and so far as tho property is not required for those purposes there is a resulting trust. TJuder which of these two head 3 tho property falls in .this case, depends upon the words of the instrument and partly \ipon the surrounding cirI cumstauces. Here We have the fact that Jame3 Robertson is the eldest son of the testator. There is nothing unreasonable, therefore, in supposing that the testator might"gtve him something more, espncinlly in the way of lam), thau his brothers and sisters got. In determining Ihis question the circumstance of relationship is admittedly a factor. There is an absolute devise of these two sections to James Robertson. It is not said th»t he is to hold these sections upon trust. He is, however, directed to do certain things with respect to the3e sections and with rospact to other sections, as to which other sections further dispositions are made by the testator. What, then, do we find by the will that James Robertson is directed to do? The testator Bays that his wifo " shall receive from the said Jamej Robertson the sum of £1 per week for her maintenance during her life and tho full liberty of my homestead." The homestead stands on part of th^ sections devised to James RobortsoD. In a previous part of the will the cestator had dhected that hi 3 wife should "during fc'er life bo entitled to occupy the dwelling bouse and garden at present occupied by " the testator " in the town of Lawrence." Tha house and garden stemd upon the homestead. If the testator devises the land in fee to James Robertson, having previously given tha right of occupation to his wife, and he directs that James Robertson ii to allow his wifo full liberty of his homestead, it means this : that the land on whiclT x he homestead stands Is by

will to be Jameß Eobertson's but he Is to allow the testator's widow to occupy it. That certainly sei-nis to mo to brin«c tho gift of this land to James Robertson within the first category mentioned by Theobald, as a gift subject to trusts. Then James Robertson is directed to repay a debt due by the testator to his wife, with interest, "out of the properties hereinbefore devised and bequeathed to him." That cortainly is nothing more than a charge. Then there is the further direction that he is to "farm and manage the lands hereinbefore devised to him until clear from all debts and encumbrances." That also implies that if the land has been devised to him and no other trust ha 3 been imposed upon it, that laud is his— that he is to work it up to a certain time for & specifio purpose. That again seems to me to be nothing more than a charge. The parts of the will I have quoted really contain all the burdens which the testator has placed on the home farm and the Lawrence Ejections in the hands of James Robertson. 1 It is said, however, that there is a trust of the surplus profits of the whole of the land, including the land devised to James Robertson, for the benefit of the children. Ido not read this part of the will in that way. It seems to mo that tho surplus profits thero referred to refer to the surplus profits of the farm at Greenhill only. There is no obligation on James Robertson to manage the other properties devised to-him for the benefit of the estate ior one moment after the debts due by the estate have been paid. As there would be no obligation on him to manage the other land devised to him after that point of time, there would be no surplus profits arising from the management of that land which could come to the other children. For there reasons, therefore, I have no doubt that tha two parcels of land do pas 3to Jamei Robertson. The other question seems to me to ba an entirely distinct one, and the subject of very different consideration', and I (hall have to take time to consider it, but I hope the parties will see their way to come to a settlement. The court rose at 4.40 p.m.