THE COURTS.

Press, Volume LVII, Issue 17111, 5 April 1921, Page 5

THE COURTS.

SUPREME COURT. CRIMINAL SITTINGS. (Before his Honour Mr Justice Sim.) PRISONERS DEALT WITH. George Pearson, who had pleaded guilty to a charge of carnal knowledge, was presented for sentence. Air Upliam, for prisoner, in applying for his release on probation, referred to prisoner's previous good conduct, and to the fact that but for having pleaded guilty it was probable that if ho had pleaded that he had been muled by the girl's appearance as to her age, a jury would have acquitted him. His Honour said that it waa not the practice to apply the Offenders' Probation Act to such cases, but in the circumstances he thought he would 1* justified in dealing with the present case under it. Prisoner was admitted to probation lor two years, and was ordered to pay the coat of the prosecution, £3 12?. , , Albert Edward Miles wa3 presented for sentence on a charge of carnal knowledge. Mr Alpers, for prisoner, in asking that prisoner shculd be admitted to probation, referred to his previous good character, and to the fact that he had frankly told the police that he had overheard a conversation in which the girl's ago was mentioned. Counsel mentioned other circumstances in support of his application. His Honour said that the Probation Officer, in his report, recommended the release of the prisoner on probation; and, in view of the circumstances of the case, he thought he was justified in dealing with the case under the pffendcrs' Probation Act. Prisoner waa released on probation for two years; and was ordered to pay the costs of the prosecution, £'& 12s. ~ Mr A. T. Donnelly appeared on Behalf of the Crown in both caeca.

IN BANiOO. RETURN OF DEPOSIT. His Honour gave judgment in the appeal of E. Stringer and Co., Ltd. (Mr H. K. McDougall), the respondents being Alßert Berrett (Mr J. R. Cuningham) and Martha Clarke (Mr F. D." Sargent). The matter arose out of Mrs Clarke's repudiation of her authority to appellant's to sell her house, situated at 18 Hastings street, Sydenham, and Berrett's endeavour to recover the deposit he paid to appellants. His Honour said that it was. not disputed, that Berrett was entitled to recover has deposit; the main question was whether he was entitled to recover from appellants or from Mrs Clarke. It waa contended that the deposit was paid to appellant* as agents for Mrs Clarke, and that Berrett waaf not entitled to recover from appellants. The general rule was clear that the receipt of money from a third person by an agent on his principal's behalf did not in itself .render the agent personally liable to repay it when the third person became entitled as against the principal to repayment, whether the money remained in the agent's hands or Jiot (Saleburs p. 223, par. 468; E'lllS v Goulton (1803) 1 Q. 8.-650, 353). If, therefore, there was a concluded contract between Berrett and Mrs Clarke, Berrett was not entitled to recover the deposit from .appellants. His Honour ' set out the grounds on which ho arrived at the conclusion that there was no concluded contract between the parties; he held that the dej posit paid to the .appellants must be treated as money paid under a mistake of fact, because Berrett paid it in the belief that his offer had been accepted by Mrs Clarke, when, in fact, it had not been, accepted. The amount was still in the hands of the appellants, and Berrett was entitled! to recover it from them. (Pollard v. Bank of England, L.R. 6, Q.B. 6-23, 630). The appeal was dismissed, with costs £5 6s to each respondent, ' :

CIVIL SITTINGS. PELT CONTRACT REPUDIATED,

A. H. Turnbull and Co. (Mr George HflrpeT, with him Mr M. J. Gresson) 6oughti to recover damages from Russell B. Beals (Mr M. Myer3, Wellington, with him Mr A. F..Wright). Mr Gresson, in opening, stated that the defendant, on April 16th, 1920, entered into a oontract with plaintiffs to take the output of eheep pelts from the North Canterbury Sheepfarmers' Co-operative Freezing, Export, and Agency Company, Ltd.) Kaiapoi, at 103s per dozen. In accepting the contract defendant wrote that he understood that the quantity mentioned —2500 dozen—waa al> estimate. The freezing company had contracted to sell its output to plaintiffs subject to two contracts entered into previously. In August defendant accepted delivery of 117 casks (approximately 2700 dozen); nothing was said at this time as to whetlttthis represented the whole of the outpr On September 24th plaintiffs tendered . and part casks containing about 2004 dozei As defendant was absent from the city a the time, his representative asked that the matter of dealing with this lot -of pelts should stand over till Mr Beals returned. This was - agreed to, Mr Beals returning at the beginning of November. Th* question was then raised by defendant as to this second lot of pelts that it wae fax too great, and.it was suggested that'there was some mistake, and that the two contracts had not been filled by the -freezing company. It was, however, shown to the satisfaction of plaintiffs that no error of the kind had been made. On November 19th defendant repudiated all liability in. regard to the second lot tendered. Between November 24t>h and 80th plaintiffs offered some 60 and part casks; and on November 30th a letter was written by plaintiff's solicitors to Mr Beak.

Mr Myers objected that this letter was ''without prejudice." < Mr Gresson said that reference was made to the letter as evidence that plaintiffs had been willing and ready to perform the contract. Summarising the defence, counsel said that defendant submitted that the August tender (2700 dozen) was a complete fulfilment of the contract; and that defendant was not compellable to. take further delivery.' Counsel emphasised the fact that the contract belwen the parties'was for ".the output," and that the output of a freezing works was a matter that depended on the number cf eheep ssnt in by farmers. In May and June 55,000 sheep were slaughtered

at the Kaiapoi works; the reason being 1 that farmers were wistful to get the advantage of the Government price before the commandeer closed at the end of Jane, and pushed their stock in. The defence also alleged that some of the pelts in the second lot tendered were not of the- description required by the contract. Counsel said that evidence would be led showing that no butchers' pelts were included in that lot. On January 4th a further tender of the pelts was made by plaintiffs to defendant. The defendant, in brief, denied the validity of the tender made in November, and alleged that no effective tender was made in January. Counsel argued that it was not necessary to prove a tender; all that was necessary was proof of willingness to perform. The amount of damage claimed was the difference between the contract, 103s per dozen, and the price to which pelts had fallen when defendant repudiated his contract,' the price then being between 2C»s and 27s 6d per dozen. Evidence was given by T. F. Gibson, partner in A. EL Turnbull and Co., in support of the statement made by counsel in opening. The cross-examination was devoted to an attempt to show that some of the pelts included in the second lot tendered were butchers' pelts and farmers' pelts—the lastmentioned being pelts from farmers' sheep sent to the works to be elaughtered, the sale of the carcases and pelts remaining under the control of the farmers. James Stewart, manager of the North Canterbury Shipowners' Co-operative Freezing,. Export and Agency Co., Ltd., in the ' course of cross-examination by Mr Myers, admitted that the company had violated the Order-in-Council by giving certificates that certain butchers', farmers', and dealers' pelts were pelts from stock slaughtered at the Your company took butchers', farmers', and dealers' pelts because you gave him a higher price than they could have got from the Government?— Yes, probably; in some cases >t was so. In further cross-examination the witness dtated, in respect of the January-February output of pelts, for which Arlow had contracted, that while 19,428 sheep were lolled, only 1i,087 pelts were delivered to Arlow; the difference (8341) represented pelts belonging to farmers who declined the price at which the pelts were sold by the company to Atlow; the 8341 pelta were included in the next contract. L. P. Hopkins, foreman of the company s fellmongery, gave evidence as to the manner which the pelts were dealt with in 1919; and produced a list of the butchers' pelts withdrawn from the lot for Turnbull's. Witness had prepared the amended specifications, and there were no butchers' pelts included. To Mr Myers: Ho knew that it was illegal last year to receive butchers' or farmers' pelts into tho works; in doing so he had carried out the ordinary work of the fellmongery. ' Were you instructed by Mi Stewart to accept them?— Yes. ' You accepted them in pretty substantial quantities ?—Yee. In reply to further questions witness said that he put butchers' pelts into the contracts when ho could do so; the manager would know about this—but not definitely, ho would know that there were butchers' pelts on the place. There were soxno about in. A.xi~nst, and thoy were slipped into Turnbull and Co.'s lot. •

Thos. Hy Baker, an expert in pelts, stated that in February last he inspected 21 casks of the pelts, the subject of the action, and did not find any butchers' pelts among them. Butchers' pelts, if. treated promptly, were equal to freezing pelts: Chas. Fred. Binns, fellmongery manager for Walter Hill and Co., gave similar testimony. Calvin Lord, representative of Booth and Co., pelt merchants, stated that the market value of peltsj such as those forming the subject of the case, at the end of November last was, f.0.b., from 25s to 30s per dozen; the martinet value now was not. much different. To Mr Myers: "When the output of aworks was taken it was usually eight or ten weeks after the close of killing that the last of the pelts were received. This concluded the case for the plaintiffs. Mr Myers applied for a non-suit on the ground that the first delivery of 2700 dozen was made at date some time after the closing of the killing season, and nothing was said to.-indicate that it did not complete the contract ; further, it was now fouiid that that delivery contained a quantity of ekinß not in conformity with the contract. As to the tender in September, was made at the end of a reasonable time after the killing was finished. After defendant's repudiation of the contract plaintiffs insisted on their original tender, and claimed payment accordingly. Apart from other considerations the plaintiffs could not recede from that attitude —they could not turn round and say that''oy had made a mistake, and offer another 'er on a different quantity. As to the <r at the end 'of November counsel eub■:l that there was no proof that such a :r was made; the whole interview was -Jiout prejudice. Messrs Harper, Son, iascoe, and Buchanan's letter which was sent on behalf of plaintiffs, and was "without prejudice," offered a new contract, which defendant declined. Under Section 32 of the Sale of Goods Act, it was submitted that the North Canterbury Freezing Company broke its contract with plaintiffs, who, in consequence, were not able to fulfil their contract with defendant.' The defendant was not satisfied with the position taken up by the North Canterbury Freezing Company, and considered that their actions had been such as to justify him relying on any point available. According to the evidence the company had retained 15i casks, to which defendant was entitled.

His Honour expressed the opinion that in view of the possibility of an appeal, the defence should lead its evidence.

Mr Myers, said that he would do so. The Court adjourned till 10 a.m. to-day

MAGISTERIAL

(Before Mr S. E. McCarthy, S.M.) DRUNKENNESS. Harry Bowser, Maurice Brown, and Charles Coates Howard were each fined £l, in default 48 hours' imprisonment. Mary McKegney, with a lengthy list of previous convictions, was sentenced to 14 days' imprisonment. AN INCORRIGIBLE ROGUE. Jessie McEwan, alias Harvey, alias Edwards, who had 71 previous convictions, mostly for drunkenness, was convicted en a charge of being an incorrigible rogue and vagabond, and that she consorted with thieves and prostitutes. The Magistrate said" ,that McEwan was a person whom the Prisons Board should deal with, and hv would sentence her to three yeais' reformative treatment. CIVIL BUSINESS. Judgment by default was given for plaintiffs for the amount claimed in the following cases:—Pester Brothers v. A. J. McMaster, £11; Dr. Alfred Foster v. Carrie Challenson (for 18s 6d costs only); H. Stiles v. William Courtney, £4 15s; J. Carter v. A. Sinithers, £1 10s; Trustees of the South Island Methodist Orphanage v. Thomas Henry Joues, £O3 12s. E. Brown was ordered to pay a judgment

debt of £l3 16s 6d forthwith, in default six weeks' imprisonment, warrant to be suspended if debt is paid at the rate of £1 5s per month.

George James Boud sought possession of a .tenement from M. /Smith.-, No order was made for possession, but plaintiff was given judgment for £6 IBs 9d rent. Norman 'William McDonald Nelson (Mr Mut'ijhv) claimed £6 for wages from Owen John Bowe. Defendant counter-claimed £6 15s 'for grazing and feeding plaintiff's horse. Judgment was given for defendant in the original claim, and the counter-claim was disa'iow.xl, no costs being allowed either party. WRONGFUL DISMISSAL

H. J. McNieholl (Mr C. S. Thomas) claimed from S. E. Ruthorford (Mr D. E. Wanklyn), of Kowai Bush, £2O 3s 6d, being four weeks' wages in lieu of notice, and two weeks' wages, due up to February 14th at the rate of £3 7s 3d per week. Defendant counter-claimed £lO 8s 3d, being the difference in the amount of wages having to be actually paid for'labour to take the place of plaintiff, but the 'ounwr-clai-.i was subsequurily withdrawn. The Magistvaf9 said that plaintiff, who was * plougiiman :ri the employ of Rutherford, at Kowai Bush, had left the,, work on two occasions, once on medical advice, and the second time to see his wife, who was ill. There was no justification for a suti.nia.ry dismissal on account of tliis, and fJamdii was entitled to iojk.vo a month's notio J augment would '»» plaintiff for tL<- amount claimed with costs. Th«-.e w-iril b* no costs allowed oo the counter-alaim. MOTOR COLLISION CASE.

Mr McCarthy delivered his reserved judgment in the case, Walter Stanley Wright (Mr Gwsson) v. Josepii Coleman Ivoiy (Mr Thomas), oloim .{6a damages alleged to have been sustained by plaintiff on August 14i.h, 1920, through his motor-car colliding with a motor-oar being driven by defendant. There was a counter-claim by defendant for £67 0s 4d, arising out of the same collision, the defendant alleging that plaintiff's -negligent driving was the sole cause of the accident. The accident hsi'ipcijc'l at the ;nt.:'s.>:.t en of Kirwee and Lincoln roads, where there is a triangular piece oi grass -virion is closer to the near Ithan to the off side of Lincoln road. The Magistrate believed that plain'-iff was 15 feet from his off side, and on reaching the intersection he turned sharply round his off corner, and «■ the collision occurred The plaintiff had followed the sama course as the bulk of the traffic, but S9 wrongs nw*r iiiade a right. Plaintiff's driving was negligent, and judgment would be given for the defendant on botih the claim and counter-ciaim, and £42 damages would be allowed him, with costs on that scale