DISTRICT COURT.

Timaru Herald, Volume LVII, Issue 6059, 19 September 1894, Page 3

DISTRICT COURT.

TlMAßU— Tuesday, Septembeb 18th. (Before His Honour Judge Ward.) The Court opened at 10 30 a.m. m bankruptcy. Orders of discharge were granted to the following bankrupt?, there being no opposition or objection :— W G Drummond, (Mr Perry). J H Glasson, (Mr Baymond). In reply to Bia Honour, Mr Baymond explained that the delay m applying for tbe order (the filing took placo m 1890) was due to the supervisors witboldiDg tbeir consent until tbe estate, a large one, was completely realised. The.supervisors had now given their consent P H B Lußcombe, (Mr White). T Hall, (Mr Hay). D and H Mundy, (Mr Enubley). Me Jeremiah Oostigan -set down for publio examination. His Honour j This bankrupt is committed fur trial at the Supreme Court. It would be unusual to bring up a bankrupt for publio examination, under suoh circumstance.. Mr Baymond for bankrupt said be intended to raise that queeiton. Mr White said be did not intend to aak any queetion about the cases on wbioh he had been committed, but about gambling transactions, the evidence on which must be got from himself. Mr Baymond Baid a publio examination must necessarily deal with the oharge of not keeping proper books and on that oharge hs had been committed for trial. He referred to a case m Ohristohuroh m which such an applioation had been refused. Mr White said that this was a different case, as it sought to use the publio examination to obtain evidence m support of a charge on whioh the bankrupt had already been committed , He did not intond to touch those charges. The bankruptoy was attributable to gambling transactions, and the evidenoe of these oould only be got from the bankrupt himself. His Honour thought it would be unfair to the bankrupt, and ordered the matter to stand over till next sitting— till after tbe trial. lie John Henry Biohmond. — His Honour gay. judgment m reference to the validity of an injunction restraining the Stipendiary Magistrate from hearing a claim mado by John Biohmond against the Deputy Assignee for value of goods reoeived and sold as belonging to the estate of John Bichmond. The ground alleged for the granting of the order was that the defendant, tbe Assignee, was entitled to have a question of faot tried by a jury, and there was no possibility of getting a jury m the Magistrates Oourt. His Honour said there had not been shown Bpecial circumstances requiring a jury, and a jury had not been applied for. The applica tion for an injunction must be dismissed. Me 3 Biohmond, application for an order to bankrupt to pay proooeds of wool sold to the Official Assignee.— This case was adjourned till next sitting, tbe notioe having been served on the bankrupt's wife instead of himself. Re Boss and Sims, applioation for payment of bankrupts' solioitor's ooßts out of the separate estate of D M Bobs. — Adjourned. So Alexander White, applioation for order direoting B Tipping to pay to the Ofßoial Assignee oert-in moneys —Adjourned, cmi. OASES. Charles Thomas Miller v. Job Brown, olaim £100 for illegal distress. — This case was discontinued. John Jackson v. David Hastings Brown, claim £276 17s 6d and interest. Mr Ferry (for plaintiff) asked that this ease stand ovor till next Court day, as the matter was m oourso of settlement. Mary Smith v. Elizabeth Hay Green, claim £184 4i 4d and interest, damages for breaoh of contract. Mr Solomon (of Dunedin), instructed by Mr Einnerney, for plaintiff ; Mr Stringer (of C bristohuroh), instructed by Mr White, for defendant. k jury of four was seleoted— Messrs F Blackwell, L A Coy, A H Hammond and B Stoddart. '• Mr Solomon openod the oase at some length to the jury. Early m the present year Mrs Smith, tbe plaintiff, beoame a partner with Miss Green, the defendant, m carrying on the business at the Olub Hotel. They found after tbey had been there some months tbat tbey oould not agree, and negotiations for separation were opened. Plaintiff consulted Mr Einnerney and instructed him to write to Miv Grren about putting an end to the partnership- That letter of the 14th June, was ttje QomtqenQemenji of the negotiations' for the dissolution of thei? partnership and Miss Green replied the same day, stating that •be was prepared to go out of tbe business on plaintiff paying her. all the money she had put into it, or she would keep it on, and pay Mrs Smith all the money she put m; and she would be glad to have it settlsd as soon as possible. Mr Perry replied accepting .be'-fr? 1 " to pay off Mrs Smith's interest. The money to be provided w&§ £500 eaoh. Mrs Smith had some property whioh she proposed to sell to raise her share of tbe purchase, but it oould not be done just then, and Miss -Green provided the bulk of the money required until Mrs Smith could provide her share. The amount aotually paid iv by her was £168 m cash, and she also provided some furniture and goods for the carrying on of the business, making m all £185. There was on the 15th June a positive arrangement between them that Mrs Smith should be paid out, and that she should reoeive the amount sho bad put m, Then difficulties began to orop up. -tr Einnerney had beeu aoting for both ladies, there being no difficulty so far. It was first proposed to transfer the lioense to Mr McGuinnesa ; the ground landlords were the Crown Brewery Company, and McGuinness wanted the lease transferred too. Mj.p Green objected that she would be left out m -he pbld altogether, and might be turped out with nothing, and as she POOld not hold the license herself ehp asked Mrs Smith to return and rpmain m the hotel till she oould dispose of it, Mrs Smith undertook to return till August, and ebe would also try to find a buyer, or she might try to find someone to buy it for ber (Mrs Smith). It was part of the arrangemeut that if Mrs Sg)ith returned she was to do so as manager * and Miss Greep wus not to interfere. Mjss Green acquiesced, b\*.t thay wep§ not long m coming to loggerheads again, and on the 14th July, Mr Einnerney wrote for Mrs Smith to Miss Green urging tbe immediate oarrying out of the arrangement < tbat had beon made to buy Mn Smith out. Then Me White appeared on the soene, aoting for the Crown Brewery Company, and be proceeded also to aot for Miss Green. He saw Mr Einnerney and discuesed the"methods of faaniierrjng the lioense to Miss Green's nominee. Mr Bertie, the barman, was first named, but the police ssid he was objeoted to as an applicant, and pthpr dijgoulties about the licanse arose. On the l^th July Mr J^tynerfjey vfrjjtg thrt tbg present state of things would not be allowed to continue. Mrs Smith held the lipense, but had np control of the business, and unless a a substantial amount was paid to ber on acoount of the purchase money she would leave the bouse next day and enforce compliance with the arrangement. On the 16.h Mr White wrote m reply that when it became jtnowu that Mr Louisson would not assent to an assignment nf the lease, tbe arrangement for dissolution fell through by oflqsent of the the parties. The lease and business were m the market, and Mrs Smith would participate m any profit or loss by the sale. This was something entirely new, that the arrangement depended on the cousent of Mr Louisson. Mr Einnerney wrote to Mr White telling bim that it wbb quite incorreot ; that Misß Green had had more than a reasonable time to mako payment, and Mrs Smith

j would not allow her name to be u.ed further !iu the matter. Mr White did not roply to I that, did not repudiate the assertion that his j statement was incorrect. Then Mr 0 F Wederell appeared on the scene, and tie license was temporarily transferred to him, under peouliar circumstances. Applioation was made to Dr Lovegrove, a member of the oommittee, bat he had some doubt obout it. They went to another member, and told him Dr Lovegrove would have done it but be was □ot at home— a deliberate falsehood — and tbe member believing that he signed the transfer. The Brewery Gompany,*o protect tbeir own interest, put both tbe ladies out, and put m their own nominee, Wederell ; Mrs Bmith was out m tbe cold and Miss Green would not pay anything- Yet although Mhs Green ha 1 , been put out of it, a few days ego (the 4th instant) she was put m again, for the purpose of selling tbo business to Mr Mauniog, of Camaru, Mrs Smith not beiug consulted m the matter at a\\. The arrangement war" made that Mrs Bmith should be paid out ; that arrangement wai never departed from by her, and j et tbe defendant wanted to say Mrs Smith was not entitled to receive the money. One of the defenoes was that the arrangement was subjeot to tbe landlord's consent to an assignment of tbe lease j that was not the faot. There was no such condition. Another ' was tbat if there wbb no suoh condition, it was illegal. That was not a question for the jiiry ; but it was a question for the jury whether this defence would have been raised if the conditon had really been made. Mrs Smith gave evidence at some length m support of her obunsel's opening. In cross* examination by Mr Stringer she said nothing was mentioned about the Crown Brewery's consent whan the bargain was made. She knew that oonsent was given when ene and Mis. Green took the business. She had never drawn a penny from the business. Since leaving the firet time had never interfered with the aooounts, and had no knowledge of how the business was going- Left finally on tbe understanding thon tbat Mr Louisson was having things settled. From the 18th June bad not m any way ao tod as a partner. Was not consulted m any way as to the sale to Manning. After tbe luncheon adjournment His Honour suggested that the oase could be narrowed down very much sb tho chief point now seemed to be whether the consent of the Crown Brewery Company was given to the assignment of the license. He adjourned the Oourt for ten minutes to allow counsel to consult togethor and ou resuming it was stated that they aooepted His Honour's suggestion.' The jury and witnesses were disobarged, and the question remaining was then made the subject of inquiry. Mr Einnerney, who had been acting for Mrs Smith m the negotiations, gave ovidenoe respecting interriews with Mr Louisson, the result of whioh was that the latter agreed to oonsont to an assignment to Miss Green's nominee, and he considered tbe matter settled, co far as that was coucerned, leaving Mrs Smith's claim ag.inst Miss Green to be settled afterwards, A few days later he saw Mr White, who aaid the polioe wore making inquiries about tbe position of the license and were about to take proceedings, and the next step was that Mr Louisson stepped m and took possession. He did not take any steps on the oonsent, waiting for an assignee to bo offered. Mr Stringer raised the point that a necessary oonditiun of suoh an arrangement as was relied upon by Mrs Smith, was that she should put herself into a position to transfer her interest to Miss Greep, and ber failure to obtain tbe oonsent of the Brewery Oompany to her assignment of the lease wss fatal to her right to sue m thia aotion. A covenant m the lease (read) requires suoh oonsent to be obtained. The assignee or sub-tenant offered must be respeotably solvent and "• suitable," and as Miss Green oould not hold a license she oould not be a " suitable " tenant for the hotel. His Honour asked whether it was necessary that the tenant should be licensee. Did the original lease require the Brewery Company to hold the license ? Tbe original lease waireferred to. It binds the tenant — the Brewery, Company— carry on tbe business of tbe hotel m a proper manner —(although brewery companies are forbidden to hold licenses). Mr Stringer found a distinction betwoen the two leases ; the original did not contain the word " suitable." The plaintiff oould not he argued, recover damages for breach of agreement, beoause she bad not placed herself m a position to oarry out her part of the contract, she oould not transfer her interest to Miss Green without the oonsent of the Brewery Company, end that she had not obtained!. All thftt Mr Einnerney had. obtained was a promise that it would not be refused when asked for, but it was refused when asked for Mr Louisson saying he did not see his way to consenting to a transfer to a person who is ineligible to hold a lioense. (Caßes cited m support of the oontention that when consent of another person is needed, tbis must be obtained m order to make a oontraot.) These cases showed tbat tbe plaintiff must putherself m a position to transfer, and as she had. sever done so, she oould not recover. In reply Mr Solomon dealt briefly with Borne of the cares, but he contended that no point of law had arisen.- Ihe occasion for the oonsent had never arisen. Mr Louis/on had not refused consent, he had promised his oonsent, But no assignment had been ten. dered for him to assent to. Negotiations were m progress for obtaining oonsent, and nothing the other side were entitled to ask for had been refused. They were m suoh a hurry to repudiate the agreement that they did not wait to tender an assignment and have Mr Louisson's oonsent refused. It could not be assumed that consent to an assignment to Mies Green would be refused beoause bb a matter of faot she did get the property and Bold it. Nor Bhould it be assumed t^at the B'ewery Compapj wftutd have forfeited the lease if a breach of the oovenant had been committed by a transfer boing made to Mies Green without their consent. Mr Stringer urged that applioation for oonsent was made, and was praotioally refused because tbe person was not. a suitable tenant. That answer exonerated .the defendant from taking any further steps. In giving judgment His Honour said that praotioally the only question left to the Court to decide was whether or riot the admitted contract between the parties was put an end to by the faot of the Crown Brewery Com. paoy not having given written assent to the assignments of the. lease by Smith to Green. The faots appeared to be that, iv the first place, on the 26th Jqno Mr Einnefuey, m reply to a previous letter askjng Mr Louisson for apsont tq the assjgnment, rec.jved a letter, not certainly a positive refusal, but a statement that he did not consider Miss Green a suitable person to hold the lease,— although she was oue of tbe two persons who held it already, and referring Mr Einnerney for further negotiations to Mr White, Mr Einnerney appeared to have seen Mr White on the subject, end Mr White was strictly nonoommittal. The negotiations did not appear tq have terminated altogether, and on tbe 2nd August Mr jftnnemey saw Mr Louisson himself, and Mr Louisson gave a verbal assent to tho assignment. Then came the faot that there was subsequently a re-entry by Mr Louisson, and subsequent to that it appeared that Miss £treen was allowed to take possession, and sell the goodwill, stock and furniture herself and to reoeive the proceeds by private arrangement apparently with the Crown Brewery Company, Mrs Smith belog pijt ent|rely out of if! bf thqt private arrangement. Alluding to oases quoted, His Honour sai4 tHat it might be taken 'as a matter of law that the assigntqegt oODt.m* pjsfaci yqijlcj be 8 flquUteuUim of the covenants c*f the loa.e. It appeared to him that the necessity for the assignment had not positively arisen, Negotiations - for the Brewery Company's asient wero still going on, and praotioally a verbal assent had been given. ' then the negotiations were suddenly put a stop to by re-entry. It seemed ts him that the neoessity for the assignment, had not arisen up to that time, and that the re-entry and subsequent proceedings were really an attempt to defraud by Miss Green or JMre Smith, He had nothing more to say on the subjeot, but must give judgment for the plaintiff for the full amount, £184 4s 4d. His Honour added ; I must say Mr Btrioger you have got a bad oast. This completed tho business and the Court waa adjourned,