CIVIL SITTINGS

Otago Witness, Issue 2727, 20 June 1906, Page 81

CIVIL SITTINGS

(Before his Honor Mr Justice Cooper.) VALENTINE V. O DOXJfELL.

Claim for £250, damages for uLeged breach cf contract to grant a lease.

Mr Solomon appeared for the plaintiff. Hugh S. Valentine commission agent, and Mr Finch for the defendant, James O'Donnell, hote-lkeeper.

Mr Solomon said that defendant was until recently the owner of the Crescent Hotel at AJlanton. The police had some objection to defendant retaining his license, and he was desirous of getting ■» tenant for the hotel This deaire defendajt communicated to a neighbour named Roxburgh, who saw Mr Henry Neill in town, and arranged a meeting between the parties. Defendant had an interview with plaintiff at Mr Roxburgh's hous-e, and defendnnt agreed to transfer the hotel to plaintiff /or three years from completion of license, at a weekly Tental of £3 10s. stock at valuation. Plaintiff was to be given possession immediately on those terms, holding a temporary occupancy until he got his own license. Plaintiff's solicitor, Mr Donald Reid, via-, about to prepare temporary transfers, and fcr that purpose put bimcelf in communication with defendant's solicitor. Mr Finch. Mr Finch said there must be some mistake be-au=« he was acting with resard to a transfer to somebody else Mr Finch, as defendant's solicitor, afterwards repudiated the agreement made with plaintiff. Defendant recently stated that his -treatment of plaintiff was no* his fault, but the fault of his vsife.^lf the si»fement of d^*>.n« was correct, there was no doubt that (he defendant in this case might succeed. But if the statement of defence was rot true as to facts it was the most rascally tiling that any man ever put on thf anna's of The court. Defendant pleaded a multiplicity of alternates and inconsistent defences on the matter of law ; but on the question of fact he took uu the extiaoidinary position that he did nos_

remember signing the document ; that, if be did sign it he was so drunk, to the knowledge of the plaintiff, that he was not in a fit condition td sign it ; and that he never entered into any agreement at all. As a matter of fact it would be proved by plaintiff that defendant was not drunk at all.

His Horor: I suppose the presumption i? that being a licensed hotelkeeper he would net be drunk.

Mr Solomon submitted that, as to the alleged drunkenness of dsferriant. tbe statement of defence was thoroughly and disgracefully false. The man who put *ucli n defer:c2 ou the file should be -Dumshod for -o dome.

His Honor : He cannot be punished but :f the statement 15 disproved he cau.iot succeed »n his defence. Evidence for plaintiff wa? given by Hsnrv Neiil (commission agent), Hugh Sutherland Valentine (plaintiff), Allan Roxburgh, and Thomas Low.

This closed the plaintiff's case

Mr Finch asked fur a nonsuit on two ground? — (I) Admitting the agreement was Signed by the defendant it was not an agreement but merely an offer, and it was revoked: and (2> that the agreement did not comply with the statute of frauds.

Mr Solomon replied, contending that the nonsuit should not be granted.

His Honor reserved judgment on the nonsuit point.

Mr Fincb briefly opened J -ie case for the defendant.

Jame3 O'Dpnneil ''trie defer Hani) said that on ThuT=dsy. 3rd il3y, and Friday. 4th ilav. were va:d days, when an important aor c c sale was he'd There wbs a good deal of liquoT about. Witress kept p.fcttv right on the 3rd and 4th, but ok the stli there was a jollification. On the moiniug of the sth witress went t" "Roxburgh's licu=e either in tf 1^ company of ■Rovburgb cr hi? srn and met Yaleutine and Xeili there. Kothingr took n'.ace at the hotel, and ther w*>nt back to the hote", where they had some drink*. His wife came into the rv-m and advised him not to> do any business that day. He did not remember signing any apeement; he had pot too far thicugh. The first that witness heard about the agneame-nt was when he came into Dunedm in respors<=- to a telegram from Mr Fineh 1 ' office. If Mr Valentine said they had only one drink in. the hotel, witness said that he him c elf, as well as 2C-eill and Valentine, shouted

By Mr So-omon- During a part of the time they had so main drinks iliat he dicl net know what he was doing For a tiras he knew what they were talking about, but wlien he signed ihp document he dicl not know what >c -was doing. Hr was so far aone with di.nk that he could npi tell whether it was Mr Roxburgh, sen., or Mr Roxburgh, jun.. who came for him on th« mornius; of the sth.

Witness was asked to write his signature, and did so. He was then shown his signature to the agreement/ and remarked that he cou!d write be**er when he wa3 drunk than when h? wai sober.

Further cress-examined: He remembered that Valentine was talking of taking the hotel at £1 10s a week, and his wife said. "You are rot in 1 fit state to do business. I won't let my house cro for less than J£4 " After dinner he had ?ome more drinks with Valentine and Neil!, but he could not remember what time :t was Xci: ! went to Roxburgh's for dinner and Valentine stayed for dinner with witness. V»'iti:esr remembered these things because he had sobered up a bit.

Evidence was a]=o pi /en by Ellen .O'Donnell (wife of deferdanti, George Gordon (traveller), and Hugh M Bor'ow (groom).

Mr Pinch pddressed the court

His Horor without calling on Mr Solomon to reply, said that the onus was on the cWendant of proving that, at the time of the signature, he was not cf contracting mind and that the person with whom he made the contract was aware of that fact. After weighin 7 the evidence on both sides, his Honor said he must accept that for th© plaintiff, which was more rellab> and was given in a hptter way than the evidence for the defence. There ws also tie man's sigrnatuie to be taken into consideration. Ifr—did not follow thqt a diunken man would always sign 111 an erratic manner, but the fact that here the signature was clear aLcl distinct was consistent with thp fact that the man was sober His Honor h-»ld, therefore, that the defendant Vnew what he was about and that he signed the document, avd on the question of fact decided sprain*' the defendant He would reserve his decision on die legal question.