THE COURTS.

Press, Volume LXI, Issue 18410, 17 June 1925, Page 7

THE COURTS.

•SUPREME COURT. (Before his Honour. Mr Justice MacGregor.) APPEAL DISMISSED.Afa appeal :„gainst a Magisterial decision, <hat an advertisement wh ch appeared in "Progressive New Zealand," a pu licat'on printed for distribution r.t tie Wembley • Exhibition, should be paid' for, was d.smissed yesterday. In tife Magistrate's Court, before Mr H. Y. "Widdowscn, S.M., Robe.rt T. Tosswll, public accountant, and Arthur Chartes Andrews and J-hn "William Ba>y, printers, of Chriftchurch, and jrn era "trf the publication, sued Leyland Motors, Ltd., for £l5O, for a two-page advertisement in two f colours. Defendants rifuscd to pay, on the grounds that there was an a suianee that the publicat.cn would be issued at the Wembley Exhibition; but that it did not reach Wembhy unti'. with.n four or five weeks o: the closing of the exhibition, and that defendants If ailed to get full benefit of the exhibition, which, was th 3 main purpose of the advertisement. The Magistrate gave judgment for plaintiffs for the full amount of £l5O, and defendant appealed on the grounds that the Magisdecision was wrcng in effect and in law. I Yesterday Mr 11. Johnston (Wellington), instated by Mr H. .7. Raphael, appeared for L?yland3, Ltd., and Mr A. T. Donnelly, instructed by Mr R. Aberne.hv, appeard lor the respondents. Mr Johnston said the case was the class of case of a person going to a tailor and ordering a Court costume for seme official purpose for a certain date, that being thi purpose tf the order, and the tailor, not knowing the date the function took place, not completing the order by that time and subsequently delivering the suit v hea the I date it had been ordered for hed passed. Under those circumstances, it was sub- ' initted that defendants need rot take the I article ordered, on the ground that the other oarty had no*, complctd the contract. In July, 1923, the appellants were approached by the rcsp ndents to advertise iq. "Progressive New Zealand," which was to be in tim« fsr the "Wembley Exhibition. The contract was entered into on August 20th, 1923. Wembley opened in May, 1921, and was.to run for six months. On July 16th, 1924, appellants had not heard of ths publication of (the paper, tmd wrote, receiving a reply that it would be pu'-lish-d in 'August. *On July lOtfa they wrote cancelling the contracts. In August appellants wrote asking for the plates, which had been separately paid fov. In September they received a demand i r paymrnt. They refused'to pay in full, but offered quantum meruit payment." Respondents sued in the Lower Court, and the Mngistra'e held that if appellants had any remedy it was in an action for delayed carrying-out of the contract. The udvertisement did not appear until fiur or five weeks before the closing of Wembley, and it was subm'tted that this was failure of part of the. consideration under which the contract was made. It was submitted that failure of the consideration, or of part of the consideration, was sufficient ground for rescission of the contract. A Question for his Honour to determ;n3 was whether the fsur or five weeks durin? which'the advertisement was at. Wemblev was or was not substantial compliance with the' contract. He would have to deterniini whiether appellants had to pay £l5O for an advertisement which was shown afton five-sixths of the people 'that appellants thought would see tho advertisement had gone.' ..Counsel quotrd the Spithead Review case, in which people hired a boat to see a reviow of the Fleet, and also to go round the Fleot. The review was not he'd at the time, 'owing to the illness of the King, but the boat was taken round the Fleet, and the Courts held that th? boat-owner was entitled to recover the hire of tha boat. He pointed out that the difference between "time" and "subject matter" cases was' that' where the' imposs : bility had reason through destruction of subject matter that was not the fault of either of the' parties, but in the case- of a question of ti'ne the opportunity had passed through the default of "one party. His Honour drew attention to the fact that Wembley was the central one of three sources of publication of the advertia-ment. Mr Johnston said Wembley was the leading event of the three and the major purple in the minds of appellants. It wa-3 submitted that respondents' delay defeated the object for appellants' entering into the contract. Without calling on Mr Donnelly to reply, his Honour said he would not reverse the Magistrate's decision. Appellants claimpd they wore entitled to rescind the contract • because its publication did not arise r.t the Wembley Exhibition until four or five v.eoks before its close. The respondents' prospectus stated very clearly the purposes and circumstances _ under which the contract was entered into. It was stated (a) it had been arranged to send 3000 comes to libraries, rotary c'ubs and similar institutions; (b) to place on sale at the exhibition in London 5000 copies; (c) to disoose of the remainder of the conies to banking and. other business institutions' to be sent abroad. It must be assumed that clauses (a) and (c)hadbeen complied with, and it was 'apparently claimed that a portion-of one-third of the consideration 'of the contract had not been complied with. He was quite unable to say that the" basis of the contract had been broken. It seemed to,him that if damages wero claimed on the grounds that the defendants had lost publicity, that should have been stated in the original action. It wae quite impossible to see that that adnutted delay was of a grave and vital nature, and ho dismisssd the appeal with costs £l2 12s and -disbursements to the respondents..

MAGISTERIAL. TUESDAY. (Before Mt Wyvern Wilson, S.M.) THEFT OF OVERCOAT. ' "Guilty" was the plea entered by John Cochrane Pollock, aged 2& years, residing •in King Edward street, Dunedm, to a charge of having stolen an overcoat va.uod at 303, the property of P. E. McKay, Christchurch, on Friday. ', Pollock was remanded to appear to-mor-row, when he_wilJ conio before Mr H. Y. ■\Viddowson S.M., for senfence on a charge of having been found without lawful excuse by night in Guthrie's, boarding-house, Moorhouse avenue. RICHMOND MAN CHARGED. "T don't want to send you to gaol,'' but vou must, romember that the community "has to be protected from drunken thefts, said his Worship to Thomas Bell, a labourer, aged 49 voars, residing -in Vogel street, Richmond, who wa 3 charged with haying teen found in a state, of helpless drunkenness in Hereford street, wrth a breach of his prohibition order, with the theft of a carpenter's brace and a chisel.. va.ued at "2s and with a breach of his terms of release on probation on:. previous charges of theft. Bell pleaded gm.ty to. all the ° S The Ce9 police said 'that Bell had been allowed out on probation on charges of theft some time last yew. He seemed to to all right until ho tcok to \dnnk. He had sold the carpenter's tools he was charged with haviag stolen to a. dealer, but they "waTastd fox by-Mr Hensloy, who ' appeared for accused. . On the first charge, Be 1 was convicted and discharged, but ordered to pay 17s 6d as medical expenses; on the second he was Convicted and fined 203, in default 48 Crs' "morisonment; on tTje. third charge (f o rtheft*of tools), he was convicted and admitted to probation for a period of three ?ea« • and on the last count he was convicted and his previous term of probation extended for six months. MAINTENANCE. Mvrtle Pretoria, Huston, a young woman, »<W the "Court to make aji order separating her fresher husband. Tasman James Huston (who did not appear), on the Snd o failure to maintain her and her nWld The order was graated and ma-n----fifnee tod for the wife at 80.i a we.k. <shn was also given custody of the child., fnd Huston was ordered to pay 15s towards its maintenance. (Before Mr H. Y. Widdowson. S.M.) CIVIL' ACTION. A draper named P. Stephens, of Hoki : i-iT (VrO A G. Connal was sued by J Doyle, of Doyleston (Mr W. J. Hunter instructed by Messrs Smithson and Mo'sleyK for tho sum of £2O 8s 7d alleged +i he tho balance owing in respect of expenses incurred for the defendant's a» judgment for the defendant, with 113 13b 6d costs.