ALLEGED MISREPRESENTATION.

Wanganui Chronicle, Volume LX, Issue 17005, 5 June 1917, Page 6

ALLEGED MISREPRESENTATION.

«. SALE OF A NEWSPAPER

DISSATISFIED

WITH INVESTMENT,

--.The Supreme Court was occupie-3 -yesterday in hearing the case between Oliver McLean Kerr, of Manga-

weka, and James Kerr, of Petone, 1 Trfewspaper proprietors, plaintiffs, and i/Robert Edward Hornblow, of Darga•*ville, newspaper" proprietor, defendant.

—.-..• Mr. .T..M. Wilford, of Wellington, for plaintiffs and Mr. Bro^ ;die, of Wanganui, for defendant.

•> The case arose out of the sale of J,he Mangaweka "Settler" by deiejidant to plaintiffs.

J:t In, his opening address Mr. Wil- ' fiord said the action was one to set,

the sale of the newspaper, on :|he ground of alleged misrepresentation. Counsel ateged that Horatio w ; had represented the advertise-

;jnents;to be worth £531 per year, and defendant gave particulars of isame-to plaintiff. It was alleged

that the circulation of the paper was 425 and that there was a mortgage. JQn making enquiries Kerr found that ■^thdre was no mortgage on the plant, that the circulation was only aLOO. It was further .alleged that

|Hae advertisements which had been tp.Tltun were found to be "absolutely bogus/ Producing a copy of the t Mangaweka; "Settler." Mr. Wilf ord ■pointed out the alleged bogus advertisements, the back page being full of them. Hornblow had sold the paper to Kerr for £100 down and ;p.n.'s; for £2 5y payable every three

imonths

Subsequently Kerr found

'■'tfiit, continued counsel, that not only Jjftd the advertisers not owe mbney <yp. account of the advertising;" but

|here, w.as no contracts

Advertis-

:ers had also repudiated them. Mr. iWilford said that instead of getting £531 Kerr had lost money. "A& a matter of fact," said counsel, "it is

show, the circulation of

125. not" being enough to pay' thej ,o^'ner." < Continuing,; Mr. Wilford' staid the question would be raised by the defence, could a contract be cancelled. Mr. Wilford quoted j

authorities, supporting his contention; that it Jcould. Counsel further Contended that if the contract -was

cancelled Hornblow would get back

■la-itietter paper than the one he had sold to plaintiffs. - There were some jgjejiuine advertisements in it now which did not have contra accounts. Jii conclusion, Mr; Wilford said he 4id not think it possible to put be-

fore a Court a simpler case^. 0. McL. Kerr, giving evidence, «aid that out of the £531 worth of £323 were "dummy"' ip-ries; ] Included in; that; sum were

;^7O; -which advertisers had paid1 to ~ssSre further trouble, but which they •/Jrad disputed, fitness then went on ".&p. 'describe the" negotiations which

led him to purchase the paper

other: ! witnesses—-well-;*inow.n'. business, men in Wariganui. .;^almerstpn North, and Taihape— i^lye evidence to the^ effect that they 'liad'fnbt: given" instructions to have i'^tain advertisements inserted -" vi ;4#eMangaweka "Settler;"

Cooper, formerly in business- in Wanganui, said he made a with defendant for an ajl)|t|rtisement for a year at £10. H«V Received,ah account for £1.2. Ttiere L^s-a, contra account of £8 for n, ilress for Mrs... Hornblow. l ■^ To- Mr^ Brodie:: Defendant frequently came to witness about ths

advertisement, but Kerr Bros, did I|pt. -VVi ,->■■ ■, ■ - ' -:■ fey Robert G. McNiven, ■ draper, said J*?e; rieyer agreed to pay £8 for an Advertisement (produced). He iinight have ordered it indirectly. Or. '.i^ae occasion defendant, called and -aslied if witness had seen an adverin the paper. Defendant jjfad put it in for- nothing, and wi4;- - not know anything about until then. pv'-To Mr. Brodie: He knew the ad' wertisement • was 'in prior to March is9l6. .Witness paid £4.

r^jLjizarus Kaganski, tailor, said in of'the present year he sued t Wornblow for £12 12s for tailoring aud got judgment. Defendant cbur.'-.ttr-claimed for. £25 6s Sdfor advev--tisinig, but the claim was notallowed. :;^ri advertisement produced had

never been authorised by witness, f^To Mr. Brodie: He "tad had businessdealings with'-Ilotjt's Advertising Agency. They'did not have discriationary power to advertise in dtv iiendanfs paper. ' i igThomas' E. Thbnias, draper, said ■tiie: advertisement;, (produced) was ■authorised'by witness at £10 a year. Iftp wotild ..have.renewed it if Kerr

$ad approached him. Whyman,.. compositor at ffc'e Mangaweka "Settler" office, said ■he; heard'defendant tell plaintiff all tji'e advertisements were right excepta couple the 1 former mentioned. He also heard defendant say to send the accounts out. The circulation of 'C&e paper when Kerr took it over ias,£l2s;. ~.:•'■' . . ' : '^R. E. Hornblow (defendant), gave evidence at considerable length, traversing the arrangement entered Itito between the parties concerned. Me denied ever guaranteeing the advertisements, to be continuous for twelve • months. It all depended upon -plaintiff's success in securing renewals. He admitted' informing Keiv Bros, however, that approximately the value of the adveriise;in'ents standing was over £500. He t.ad produced all his books, including the ledger and subscription books. and laid them open' for^plaintiff's investigation. When asked to jrive an approximate value of the individual advertisements, he.took a copy of the i&per and, marked the value on each advertisement' appearing. Mr. Kerr fopk down the items, and totalling them up, the value came to £531. The Kerrs were surprised at the value of the advertisements, and witness tpld them that if they put the same amount- of energy into the paper that he had done, they had a fine prop&si.tibn. That marked paper was leilt with Kerr Bros., and witnes contended that they should be compelled "'ss>, produce it as that marked paper would bear out what he was stating. VPitness then enumerated certain advertisements whicii ]i 3 showed as jfreing doubtful. He denied that any Jsestion was over raised about the 'circulation. He told Mr. Kerr of .Jess's relationship") with Mr. Wilson i# respect of the lease, and fold then: that they could get n. renewal. Wit■#gss!'told.the Kerr Bros, that they should make c pry investigation beffire. completing the agreement, but fiiey said they would fix it up that ;Jiight as they-,, were well satisfied paid.the deposit and after matters bad been fixed up with Mr. Gassbigne: the Kerr Bros/ left for Tai>*ape to catch the mail train. The

assertion of plaintiff that he had told them not to send' aicounts out for six months was ridiculous. He himself had always rendered his ■ accounts quarterly. The bills given by plaintiff in payment had been met, but they had to be sraed for., Wit-ness-went into detail with regard to certain advertisements questioned, and gave his personal explanations. He was cross-examined at length on the genuineness of certain advertisements, and he maintained th .t these questioned were good up to the time he handed over the proprty. .11; advertisements were cancelled after March he had nothing to da with the business. They were good at the time he sold the property. Several letters denying liability from advertisers were discussed, and assertions that advertienients wore not authorised, were characterised by witness as untrue.

To Mr. Wilford, under cross-ex-amination, witness admitted that he told Mr. Kerr that the value of the advertisements in the "Settler" at the time the sale was effected was ever £500, Lnd so.it was. Whyman lied when he said the circulation of the "Settler" was only 125. He said he left. Mangaweka solely because he doctor had recommended his wife to leave for a warmer climate for health reasons.. AtoVthing said to the contrary was dfeTOi'd of truth. Certain contents of-aaC&fndavit sworn by Mr. Kerr, who ha^iprie to the front, produced in Court, in respect to domestic troubles were absolutely untrue. Defendant's position in regard to the lease, v/as discussed at length. He admitted that he never owned plant. Mr. Wilson was the actual owner. Counsel for plaintiff produced the agreement, and in reply to questions, witness said that mention of a ox sale" over the plant was not correct. Evidently Mr. Gascoigne's solicitor had made a mistake in drawing it.up. The agreement was road over to witness, but apparently the words "bill of sale" had escaped his notice. . He had told the K,errs to see Mr. Wilson abomt the mat.~r, but they had failed to do so. 'Mr. Wilson had led witness to underfctand'that if he paid him (Wilson) £400, the property would become his. .

His Honor drew attention to the fact that even at that late stage o!i the proceedings the actual rights of the parties could not.be defined owii;g to the absence of the original document.

Mr. Brodie maintained that the onus of producing the document rested with plaintiff , but apparently it could not be found.

Judgment.was reserved