AN EQUIVOCAL VERDICT.

Star (Christchurch), Issue 16518, 31 August 1921, Page 7

AN EQUIVOCAL VERDICT.

AWARD OF DAMACES REVERSED. WEST COAST TIMBER CASE. The reserved Judgment of his Honor Mr .Justice Herdman, in the case 111 which William Herbert Robinson, timber agent, of Christchurch, was awarded £1327 10s by a fury at Hokitika, against Robert Whiley and _ his wife Margaret Whiley, of Kanieri, Westland, trading as Whiley and Whiley, sawmillers, was read at the Supreme Court this morning by the Registrar, Mr A H. Holmes. Damages were claimed for loss of profits through breach of contract, the amount being fixed at £2550. It was alleged by plaintiff that the defendants agreed to sell him the output of their mill for twelve months, estimated at 100,000 superficial feet monthly, at 17s 3d per 100 feet. They had repudiated the contract, with the result- that plaintiff, who liad arranged to sell the timber in Australia, lost his profit. He based his losses on the difference between the contract and the market price of the timber as at September, 1920. The defendants denied that any contract had been entered into. The jury found that there was no agreement as to the purchase of the whole of the output and that no terms and conditions were in tact agreed to by tho parties after March, 1920. On the jury’s verdict, awarding the plaintiff £1327 10s, both sides were given leave to apply for judgment, plaintiff in addition being given leave to apply for a new trial. Legal argument was heard in Christchurch, on August 20. Air F. D. Sargent, with Mr W. J. Joyce, appearing for the plaintiff, and Mr O. T. J. Alpers, with Air J. A. Alurdoch, for the defendantsTn his judgment, his Honor said •'hat the jury having found as a fact wat terms and conditions were agreed upon by the parties before Afarch 10, 1920, which were not included in any written memorandum, nnd that the parties had never reached finality in their negotiations, nothing now remained but to give judgment for the defendants. He bad only to determine whether certain evidence was admissable; and he held that it was. Whether the findings of the jury were not justified by the evidence was a matter which could only be determined on a motion for n new trial. His Honor was asked to nonsuit the plaintiff, on the ground that, having discontinued an action against the same defendants, founded upon the alleged contract set up in the present proceedings, the plaintiff wag. not entitled to initiate a new action until the costs of the discontinued action had been paid. His Honor said that the costs of the discontinued action had never been taxed and therefore had never been ascertained, and as tt was plain from the evidenc that this was a. fact, there was no escape from the principle that “ where a plaintiff discontinues an action, payment of costs is a condition precedent to the right to begin a fresh action, and non payment is a ground of defence.” As, however, the defendants wanted the litigation disposed of once and for all, and as ho (his Honor) had no doub* about his authority to admit the evidence, to the admission of which Air Sargent objected, he would give judgment in accordance with the findings of tho jury upon the facts. Judgment Was accordingly entered for tho defendants, with costs as per scale, witnesses’ expenses and disbursements to be settled by the Registrar.