COASTAL CASES.

Poverty Bay Herald, Volume XXXV, Issue 11251, 16 April 1908, Page 2

COASTAL CASES.

. — m The following is the full text of the judgments delivered yesterday afternoon by Mr W. A. Barton, S.M. : — CONNELLY v. FAIRLIE. This is an action to recover from defendant tlie -sum of £92 Is 3d, upon the following statement of claim: — 1. On and prior to the 22nd May, 19C5, the defendant was cany ing on the business of a general istoiekeepei) at Tokomaru Bay aforesaid. 2. By agreement dated the 22nd May, 1905, the defendant agreed to sell and assign to the plaintiff and the plaintiff agreed to purchase from;.- the defendant till the property, interest, and 1 benefit of the defendant -in tlie said sjtorekeeping business, inclusive of all goods, stocje-in-trade, and good will of the said business, and it was further agreed that the defendant should sub-let to the plaintiff certain larid arid premises at or for the price of £850j,,and as part of the consideration for the said sum of £850 the defendant agreed with the : plaintiff that . he the defendant -would' for. & period of ten years from the 52nd May, 1905, refrain from carrying ou or being- in any way concerned with tlie business of storekeeping at Tokomaru. 3. That in part performance of the said agreement the plaintiff paid to tlie defendant the agreed sum of £850,- and the plaintiff, entered . into possession of the store and stock-in-trade ; sold to; him by defendant. 4. That by memorandum) of sub-lease dated the 2nd day of March; , 1906, aridexecuted for the purpose of carrying out th© said agreement of 22nd day of May, 1905, the defendant executed to the plaintiff and the plaintiff, accepted a sub-lease of sections 6, 7. 9, and 10, block viidi', , of the native; ttfwnship bf Toatini, together . witli the buildings erected thereon for the balance of tlie term of years for which the defendant then held? the; said lands, . excepting tlie last day. thereof, which sub-lease was duly registered at the Land Transfer Office at Gisborne, as number ,2766. 5. That in pursuance bf the aforesaid ngrement tlie memorandum of sub -lease number 2766 contained a covenant toy the defendant with the .'plaintiff in. words amd figures following : ''and further that he will, not at any time or times here--after during the term of tern 'years from the" date of presents either alone or jointly or in ' partnership with any other person or, persons whomsoever directly of indirectly, either by himself or an agent or otherwise. carry on, manage, or be concerned, engaged', br ' interested in the business" of storekeeping in any of its branches within the Tokomaru district."/ 6. The defendant afterwards oai. the i4th day of June, 19Q7, or thereabouts in breach of the : said: covenant took employment as storeman for the Tokbmarii Earniers/ Co-operative Company, Limited, carrying oil business as general ' store'-! keepers at ,, Tokomaru Bay aforesaid, in opposition, to the' plaanitiff. 7. That on jttite Ml. day of June, 1907, tlie plaintiff caused notice to be served upon the 'defendant calling upon him to observe a^id perform the aforesaid covenant, ..and on the: 17th day of June, the defendant wrote declining to at once withdraw* froin his employment as storeman as /aforesaid. r / 8. That the defendant is well knowiri to the majority of the .plaintiff's, customers ajidi ' the. fact of liis acting in any capacity at Tokomaru in connection with- the ' storekeeping ' business has caused the .plaintiff serious loss arid.damage. ' :•; '. -■: '■•---'■.-:.' • 9. That on the 6th day of July; 1907, the plaintiff applied to the Supreme Court of New Zealand for an injunction: restraining the defendant from further breach of ,the aforesaid covenant contained in memo, of sub-lease -2766. : ■ ' 10. That on the, 2lßt.'day of^Septeraber, 1907, the Supreme C&urt of Ne\y Zealand sitting at' Gisbome, by and with the consent of the defendant, issued an' order restraining tliji> defendant ' froin further l breach of the ? aforesaid coveiiant. 11. That on tlie 16th day of October,' 1907, the plaintiff caused demand to be made on the -defendant for payment- .of £92 lsv3d, for. injuries cailsed;to"'him "the plaintiff by reason of the "breach by , : l3ie defendant of -tlie covenant aforesaid, .but the defendant neglected Arid refused 'and- still.' neglects and refuses to make any payment whatever. ■'■ '';-' -.'■' ;'.. l'i „ 12. That in addition to the > loss , and damage suffered by tlie plaintiff ■■.* as set out in paragraph! 8 hereof , the' plaintiff has been put to heavy expense aind has in the prosecution of his claim for an.injunction against the defendant paid- legal costs and charges amounting to £. 7a.ls 3d. ■;.-.'.' -■) "y^ ; ' Wherefore tlie plaintiff claims to.: re-, cover from the defendant: — 4, *" (a) The sum of £75 for, damages by reason of the breach by the defendant bf the aforesaid covenant contained in memo, of sub-lease number 2766. '•. Y' (b) The sum, of £17 Is 3d being the amount of legal costs and charges, paid by the plaintiff in the. prosecution of his claim against, the defendant for an injunction. Wherefore the plaintiff claims to rer cover against the defendant the suni of £92 Is 3d. ' It is admitted that the defendant on or about the 4th day of June, : 1907, in breach of a covenant of the agreement mentioned herein, took employment as storeinan for the Tokomara Farmers' Cooperative Company, Limited, carrying on business as general storekeepers at Tokomairu B.y, in oppjosition to the plaintiff, arid that he continued in such employment till the 16th July, 19G7. Plaintiff abandons that portion of the claim relating to legal costs. The only question therefore remaining is wihat damages plaintiff is entitled to recover in consequence of the admitted breach of the covenant. In a case of this kind it ia most difficult to prove actual damage, and no actual damage has in fact been proved. . The evidence shows that the defendant lias for many years been a resident of Tokomaru and for a considerable portion of the time carried on the business of storekeeper there, and was very popular in tlie district, and it is only reasonable to assume that the fact of defendant taking employment in a store carrying on a similar business to that warned on by plaintiff would have the effect of diverting some trade from plaintiff's store, without any intention or effort on the part of defendant to do so. As I have already pointed out. it is most difficult to estimate with any degree of accuracy the amount of damage suffered by plaintiff in consequence of the breach' of the covenant, but I think in all the circumstances that £5 will be a reasonable amount to award. Judgment accordingly, with costs of Court, witnesses' expenses, and 1 solicitor's fee £1 6s. THE TOLAGA BAY SCHOOL COMMITTEE v. McNML. The plaintiffs as the School Committee for the district of Tolaga Bay, -claim to recover from the defendant the sum of £1 10s for damage done by defendant's horse and. buggy, to gates enclosing the school grounds at Tolaga. Bay. It is admitted that the defendant left his horse attached to a buggy tied' up to a fence iri a public street in Tolaga Bay, and that it ran away, and caused damage to the gait.s lea!ding ' to the school grounds. The land iri question was on the Ist July, 1889, by proclamation in the New Zealand Gazette reserved for a school site, and has been fenced and used for many years for the purpose for which it wait reserved. The proclamation shows a road running .through the section, and the defendant raised the question of the title. Counsel for tive defendant "contends that as there is no proof of the issue of title to the land, that the Crown only can sue. In thu? it am unable to agree. Plaintiffs are in the possession of the property, and in my opinion .have a right to action against defendant. No evidence was called to show that the gates damaged by deferidant's horse and buggy were on that portion of the land reserved for a roadway. Neither is it alleged that the damage was done to the gate in assertion, by the defendant of hip right to the free use of the rnad. 1 am of opinion that the question of title does not bona fide arise in tliis case. The only other question therefore being whether* the defendant was guilty of negligence in leaving his horse attached to a buggv tied up simply by a. rein to a fence, in a public street, without leaving any person in attendance.

'It is well known that in the month of January, being the month in which the damage claimed for was done, that botflies are very troublesome to bourses, and for that reason, horses with a buggy attached -should not be left in a. public place tied up by so slender a fastening as a rein. In my opinion the damage claimed for resulted from defendant's negligence. ( Judgment for plaintiff for amount claimed with costs of Court 6s.