SUPREME COURT.

Taranaki Daily News, Volume LI, Issue 79, 23 March 1908, Page 4

SUPREME COURT.

SATCRDAV. MARCH -21. CIVIL SESSIONS. Before His Honor Mr. Justice Edwards. SETTLING ACCOUNTS. Hughes v. Skinner; Mr. Hutchen for plaintiff and Mr. Omlliani for defendant. The statement of claim -et out that on the 12th of April. IIMI7. it was agreed between the parties thai certaiu lauds should be transferred in the Pahautiihia block owned by the plaintiff and defen lant respectively During the years 1901 and 1902. t'„. plaintiff cleared. burned • ' 125 acres of the pail agree. i-ferred. this costing

£220 .. i January, I'M).'., the agreement »..- .-aiicellcd, and it W:is agreed that in consideration of this the defendant should pay to the defendant the amount which had been expended in effecting the improvements, but defendant had not paid that or any part of the amount. The plaintiff therefore claimed £220 17s 3d, damages for breath of contract, and such other relief as the Court considered he was entitled I to.

The statement of defence admitted the agreement to exchange and that m 19(16 the agreement was rescinded by mutual consent, but denied any promise to pay in consideration of the reseisiou. fThe defence further alleged that the said agreement was rescinded by defendant at the plaintiff's request; that the defendant promised that he would endeavor to obtain from any purchas-r any additional vaitie for the said land by reason of the plaintiff's expenditure, and that he would pay such additional value (if received! to the plaintiff. The defendant's land was sold, but he declined to pay any extra price in consequence of the plaintiff's expenditure. In a counter claim Mr. Skinner claimed the gum of £77 13s 2d, the amount of money paid by the plaintiff to Mr. Norton King for Mr. Hughes at his request. Evidence was led that plaintiff was a solicitor, and the defendant a civil engineer and surveyor. Both resided r.t li'ew Plymouth, and for many years they had" been intimate friends. At the time the transactions commenced which resulted in this action, the plaintiff and defendant were owners of separate ports of a block of land known as the Pabautaha block. I'laintiff owned what was called sub-section 2 of the Clinton acres, and defendant owned two sections and had certain rights in respect to a

section of native land and the leasehold of other sections adjoining. Mr.

Hughes only acquired the Clinton estate in 1801, whiLst Mr. Skipnex -tacT been the OwnVrDf the adjoining land for some years prior, and had effected certain improvements. When the parties became owners of these sections an exchange was effected in certain portions of the sections in order that Mr. Hughes might have frontage to a certain road and also no doubt that be might join in any efforts that might lie made to induce the Government to effect reading improvements. The territories exchanged were about 100 acres of Mr. Hughes' land for about 200 acre- of Mr. Skinner's, and by the exchange the plaintiff secured improved access. Plaintiff proceed to effect improvements to his land, appointing Mr. Ernest Skinner, defendant's son, his overseer. He was also given the option of choosing the site for the clearing, either on plaintiffs

bind or on that which had been exchanged. The clearing was also eventually made on the exchanged portion. Tlie expenditure of t'22o and upwards on Improvements Had been admitted, the improvements including felling. burning, and sowing, besides the cutting of cattl« tracks. Mr. Hughes wa« afterwards approached by the Government with reference to continuing the Mangaehu road right through to the Wangaiiui rived. Plaintiff lett for England in 1902, and returned in December. IfHI4. When he returned he found that the fSovernment had taken the road through as suggested. On 7th January, lflOo, -\tr. Skinner interviewed plaintiff regarding some enquiries concerning lioth holdings from the N.Z.L. and M.A. Co.. of Stratford, the lands having lieen placed in the agents' hands for sale. A new plan and description of the properties was prepared, and the plan lithographed. l"|>on these new plans l>eing approved, Mr. Skinner mgested that there wes now no need for the exc-liange which had been agreed upon. And the agreement was cancelled. There was no discussion almut it. and nothing was mentioned about either side paying for improvements. Mr. Skinner received an account for grass supplied, and Mr. Skinner agreed to pay it. giving a bill for the amount, and distinctly undertaking to meet it as part payment for the improvements to the land. On lith November, 1905, he wrote reminding M.\ Skinner that the bill wan falling due.

Two days later Mr. Skinner called and said he would have the amount charged to his (defendant's) account. The

agreement for the exchange of lands was cancelled that day. Plaintiff heard no more about the promissory not until these proceedings were taken. Defendant sold his property, plaintiff acting for him, in June. 1906, and plaintiff told him he expected to be paid for tlie valti e of the clearing now that the place was sold, but would wait until the purchase money of the farm was paid over. No amount was mentioned. Defendant made no objection. Tn February plaintiff again applied for a settlement, and Mr. Skinner said he would have to see Mr. Mounsey with regard to value. On 17th July, the plaintiff, at his own office, presented Mr. Skinner with a full account of the office transactions and cash account between them for the period of feveral year*, sliowing a balance in plaintiff's favor of £11!). Defendant gave a cheque for £IOO. No reference was made to the P.X.. or to the plaintiff's claim for value of the clearing. This was only an "nice account. On 18th September, 1007, Mr. Skinner and his son were in Mr Hughes' office, and the latter applied for a settlement of this claim, but did not state ( the. amount, for the son knew all about it. The latter intervened and objected lo pay, as the clearing was of no value. having gone back into light bush. Mr. Hughes then suggested, and Mr. Skinner assented to. the engagement of Mr. F. P. Cork-ill as arbitrator. In December the plaintiff received a letter from defendant alleging discoutent with the state of affairs, and complaining that certain credits should have been given to him in the statement of accounts., Mr. Hughes added that he had paid out substantial sum- of money for the form, ation of roads- and tracks right to Mr. Skinner's gate. To Mr. yuilliain: At the time of the cancellation of the agreement the if-ces-itv for the exchange had cea-ed to exist. lb- could not rememlier Mr. Skinner urging him not to fell the bush, on Die ground- that plaintiff was ignorant of mishfelling and bu-h-farm-ing. and that the land would deteriorate unle»« stocked. Mide no provision for fencing or stocking before leaving for England, at he intended to stay away only a few months, but gave Mr. Skinner permission to graze over the clearing, wlrich was aliout three miles from the latter's homestead. He was under the belief that the .-aiKcll.ition was Migge-ti-J by Mr. Skinner. Hi- would not like to contradict Mr. *-kiuncr on that point. At that time lis Inuud :t very ii.ve,-ary to sell the land, and thmortgagecs were communicating directly witli* tin- land agent-. It «a- no'hing but tru-tfnlne-- in Mr. Skinner that prevented hi- entering into a fre-h I agreement fur the payment of till— C2i7 at tlit- time. Crn—-examination here touched upon private matter-, but hi- Honor -aid tint there va- really 110 need for it. If the ca-e were clo-ed now. on both -idc-. lie could not give judgment. (if course. if tiiey intended to take the matter later on to the Court of Appeal, against what he might decide, it would be ne-rcs-ary to complete the depositions. Mr. ilutclieii preferred to go on.

Prior to taking (hi- action, he had one of two intcniews with Mr. Stan ley Shaw, manager for Mr. Newton King. Mr. sliaw wa- not continually dunning him for thi- money. At the first interview Mr. Shaw may have ask ed him for a cheque for the amount of the seed bill, and lie may have replied that lie would pav it a> soon as possible, lie denied asking Mr. Shaw : f

lie would accept a bill backed by Mr. John Skinner. Witness him-clf ga.c the bill to Mr. Newton King. He presumed that the amount of the bill was credited to him in Mr. King's Imok-. and that -üb-eqiiemlv it was debited to Mr. Skinner. Tiv bill was not bac.c----i-l by Mr. Skinner as an act of friendship for the plaintiff, but was given a; part payment of the value of tlie clearing. He ha;! not knowledge that Mr. Skinner's trau-actiotis witt, Mr. Kin" ran into thou-aml- annually. He |" llicd the statement of the defence that lie had proiui-e.i to pav -onicthitig for the clearing if it proved "I anv value to him.

! Walter Riddel!, agent f,,r .111 am-tim-eering firm in Stratford, gave evideme that he had been engaged be M.-. Hughe- to superintend the cut ting 01 track- and the gra-ing of the clearing. He saw the clearing about -i\ weekafter the nork was done, and it lookid well. Saw the clearing again from IS month.- to two years after the sowing. and the condition was fairly good. There were sheep on it, and, he thought,

a few cattle. In June last the clearing was in bad state, overgrown with light woods and scrub. Jt would cost about Clou' to fell aud grass the cleaving now, and the laud would then be worth about £ll an acre.

This closed the ease for the plaintiff. Mr. yuililam, without opening address, proceeded to call evidence. .Stanley W. Sha«, auctioneer ami manager for Mr. Newton King, stated that he had, shortly after Mr. Hughes' return from England, interviewed the latter gentleman to secure payment of an account contracted by Mr. Hughes for grass seed supplied by the. firm's Stratford branch prior to his departure from the colony. Mr Hughes said he had overlooked the account, and promised to pay it. Witness called again, either once or twice, and Mr. Hughes asked him if he would accept a promissory note with Mr. John Skinne.'s endorsement, lie agreed. In due course the bill was received, the amount credited to Mr. Hughes' account, afterwards debited to .Mr. (Skinner, and paU by him. Had it been Mr. Skinner's debt he would not have needed a promissory note, for the firm had had very extensive dealings with Mr. Skinner.

To Mr. Hutchen: Witness had an impression that at the first interview Mr. Hughes mentioned that he had something to be fixed up with Mr. Skinner, and asked Mr. Shaw to wait till he (Mr Hughes) had seen Mr. Skinner about it. His Honor: 1 have not understood Mr. Shaw or Mr. Quilliam to suggest' that Mr. Hughes, was a swindler, but meroly that ho takes a wrong view of tho position. Mr. Quillani: that is so. your Honor;

Cross-examination: Would have accepted Mr Hughes' note before he went Home, but time altered circumstances. John Skinner, the defendant, civil engineer and surveyor, and formerly a bush farmer, explained the agreement for exchange of lands. The completion of the agreement would have been of grsst benefit to him, making his holding more compact, and gave a better feaoiug line. Mr Hughes also received adTOntages. Mr. Hughes said he was going to fell 250 acres, and the defendant advised him not to do it, as the area was too small. Such an aiva would be too small to keep a man on, expensive to work, and would deteriorate by the second growth, which in that district was mostly the poisonois "tutu." Mr Hughes said he. -intended felling a larger area in the next yeav, but instead of that he went to England. On his return Mr. Hughes suggested the cancellation of the agreement, and "jfcness consented, having had mjjjimlfTi i wMi the mortgagees, practically taken over thejiifu'r Made no projnise ox anajgeflfent to pay anything for the clearing. The money was well spent on the, clearing . Had been an intimate friend of Mr. Hughes almost a« far back as he could remember. After cancellation of the agreement he told Mr. Hughes he was taking steps to seu his (witness') land, and said he would put an additional sum of £2OO on the selling price, and if he succeeded in getting it, he would pay the extra money to Mr. Hughes in return for his clearing. The purchaser, however, declared the clearing was useless to him, and iasisted on £250 Ix-ing knocked oil' ths> price, for the clearing was worse than standing bush. Mr. Hughes drew the agreement for the sale of the property, and all the money passed through Us hands, yet he made no claim for payment for this clearing. Just subsequent to tho completion of the sale, to Mr. Mounsey, in his own office, Mr. Hughes said, ''.Now that that matter is nettled, we had better go into the matter of how much you are to allow me for the clearing." Witness' son. who was present, said the clearing was of no benefit to them, so nothing could be allowed. 'Witness explained the action which led up to the giving of the endorsed promissory note. Witn»ss asked what was to Happen when the bill matured, and Mr. Hughes said it would have to be renewed unless the latter could meet it. The bill was leit

with Mr. Hughes. At tliat time Mr. Hughes had a claim against witness for law costs, and it entered his mind tliat, an his solicitor, Mr. Hughes would protect his interest in the matter of the promissory note. The bill was not given for payment of a debt by witness, but as a loan, and Mr. Hughes knowthat. He had had dealings for many years with Mr. King, and he had never been asked fur an endorsement of his promissory note. He received Mr. Hughes' account, on 4ti pages of foolscap, showing the balance due to Mr. Hughes to l» £ll9 odd. He did not read through it then, but gave a cheque for JtUOO. Mr Foole (Mr Hughes' managing clerk) said that this was the a> oount right up to date. 'W'lu-n he fuiuul that ho had not received credit for the promissory note, he asked Mr. Foote almut it, and he said he had no record of ife, as it wag one of those private matters which Mr. Hughes attended to himself. To Mr. Hutchcn: He l admitted receipt of a letter in November, 1900, slating that the promissory note was due. He instructed Mr. Shaw to charge the bill to his (witness) account, declining to have it renewed, and stating he would rather liave the transaction entered i'.i Mr. Hughes' books than with Mr. King, for he "objected to these kites." His son was supervising the clearing for Mr .Hughes, but he doubted whether his eon had chosen the site of the clearing. The first he had known of the worthlessnesa of the clearing was at the time of the sale of the laud. Ernest Skinner, son of the defendant,

gave corroborative evidence on the warn points, and, as a farmer, said that the original bush was preferable to a neglected clearing. At a subsequent interview, Mr. Mounsey, who purchased the property, told Mr. Hughes and witmss tint the clearing was dirty and useless to him.

John Kemp, a land agent residing at New Plymouth, who negotiated the sale of the land from Mr. Skinner to Mr. Mounsey, gave evidence of the bad stale of the clearing at that time and the consequent reduction of the price of the farm. This closed the case for the defend. -Mr. Quilliam dispensed with his address. Mr. Hutchen, naving regard lo His Honor's comment earlier in the can-;, said he would not address as he had intended, but cited authorities on the principle of inferring contracts from the conduct of the parties. His Honor said tho case did nut depend on credibility at all. but ou the bare facts. He had no hesitation in giving judgment for the defendant in ' the case Hughes v. Skinner. It was 1 impossible to infer any contract on the part of Mr. Skinner. On the collate;- claim he must give judgment for the plaintiff. It was somewhat "against the grain." for lie would have liked the parlies to have left the matter where it was when he suggested that couisc during the morning. He could not ♦hat there had been any liability on the part of Mr. Skinner to pay the amount of the p.n, to Mr. Newton King. He merely endorsed the promissory note made by Mr. Hughes in his own favor; it was used, and the endorser was called on to pay. He believed Mr. Skinner, as he said, had done this for hi* friend's accommodation, and there was 110 other liability en hi- part tor the amount. There being no liability, it bore out Mr. Skinner's evidence that he bad had no intention of making the debt his own. In concluding his remark" His Honor said he desired to make it quite clear that no discredit attached to Mr. Hughes over this matter. He had apparently honestly believed he was L ,ntitled to the mouev as alleged, and lie did not think that' Mr. Skinner or Mr. Quillinin intended to impute dishonesty. Mr. Quilliam remarked that lie had already given the Court a distinct assurance to that effect.

[ -Judgment was entered for Mr. SkinI ncr mi Ixilh claims. I ' COMMAX v. TURKINGTOtt. I In I In- case Coleman v. Tiukiiifrton. a settlement was arrived at, the plaintiff agreeing to a judgment for defendant for the full amount claimed and costs on the lowest scale. IX DIVOKCK. t Kendall v. Kendall, wife's petition. Minnfe Kendall, (lie petitioner, staged that dm was married to the respondent on 11th December. 18flr>. and thatthey lived together at Omnia wlic'r her liu-band was a farm laborer. Six ycarf ago they removed (o Xew Plymouth, where her husband was Contracting. There were no children lioru of the marriage. Remembered speaking to her hn-band about four years ago concerning Paulina Uiggins, when she heard the girl was in, trouble. She told him she had heard that lie was the father of the unborn child. He admitted the truth of this. Up to" that time she had lived with Tier husband. She threatened to leave liini, and he -aid if she would forgive him hp would never go with this woman again. They got. along happily again for a time, until she heard lie was gains wiili Biggins ag.iin. Thai was after the birth of the child. She taxed him, and he said he would go with I he woman as Imig as he lik"d: There win a scene, and petitioner left home, intending to return. Petitioner wenl -oiilli. and was aivav for a year. | On the day of her return she telegraphed to her husband to meet her at the | station. lie was not there. She I went to her home, and found the house [ empty. From that time till the ore-

sent she had not seen either her husband or Miss Biggins. Innneditely afterwards she placed the matter in the hands of the police to find her husband, but all she could learn was that he was up in the Ruabine ranges, and it was only in the last few months fivtt his whereabouts had boeu ascertained. Since her husband left her, petitioner had been earning her living by domestic service.

William Nichols, bailiff, residing in New Plymouth, said he had known the respondent for about 15 years, and Miss Biggins about five years. He had an interview with Kendall at I'alnterstoii North on November 23rd. Kendall was standing by a verandah post in the Square. Accosted him, saying "Hull), John, how long have yon lieen here J" He replied, "about five weeks."

"liul you have been away from {■ your wife more than that," e said witness, and lie answered, "Yet;. About 12 months last -111110.'' He ask- 'j ed, "Are you wanting me?" and witness replied, ''Ve*, J inn. Your wife is seeking a divorce for adultery wi'.li :i young woman named Miss Biggins." Asked if the latter were there, and respondent said she was, that she was in j a shop, and that he was waiting for her. Asked, "Are yon living wi'.li , her?" and he said, "Yes, in a eottage , on the Foxton road." Ue also said , tliey were living as man and wife. ] Shortly afterwards .Miss Biggins came , out of the shop. Witness was approach- , ing her, but she shook her hand ;-t . him and said she wouldn't have any- ; tiling to say to witness, tslie walked away, and Acndall followed. A decree nisi was granted, to le made absolute in three months. Costs were allowed on tiie lowest scale against the respondent. Hugh Fraser .McDonald, of Ohui'a. v. Annie Marian McDonald, respondent, and 0. R. Christie, oi Kltliam, Uibor.'i', eo-res])oudent. Mr. Thomson for petitioner. No appearance of the other parties. This was a petition for dissolution of marriage upon the grounds of the adultery of the respondent with the corespondent. The parties were married in Christchurch in November, 1895, by the Kev. Win. Birch, and they subse.-. quently lived together at Sefton, Belfast, Marton. and Ohura. Three children were born, of the marriage. In 1905 the eo-respondent was employed by the petitioner to do odd farm work on various occasions until on account of the presents from 111 i i to tho l'espoiuhjn^artrtus"attentions to There was a scene, the co-respondent assaulting the petitioner, and that same afternoon the rospondent drove away with co-respond- \. cut. No undue intimacy was alleged up to this date. In May, "1907, the pair arrived in Inglewood anof lived as mau and wife for throe days and nights at . the Coffee Palace. Co-respondent then obtained work witn Messrs. Brown and Co.. and he and respondent lived together in a one-roomed whare in the bush. From 21st May, 1907, to November in the same year they were living together, and after that went to Kltliam. where they took a position as man and wife on a milk-walk. It was intended to prove that the respondent wlien she left her home took with her . the infant child. The petitioner could ■ not find her whereabouts for a long . time, but eventually traced her to ! Brown's bush, where he recovered pos- - session of the child. Mr. Thomson mentioned that the petition was prepared for service at Kltliam. and only . twenty-one days were allowed for scr- , vice. However, tncy had left there, and servit" vas ejected at Wanganni. . He iiiieude.l to ask His Honor to rule > that Kltliam was the place of residence. [ Wuuganui was more than fifty miles I from New Plymouth, and twenty-eight . days would there be required for net- ! vice. This had not been allowed, i His Honor said that Mr. Thomson . was asking the Court to exercise, a I .jurisdiction which did not exist. The , rules were quite definite on the point l that twenty-eight days' notice were required if the parties resided more than r fifty miles from the place of hearing. The hearing was adjourned till the 1 next sitting of the Court.