LAW REPORTS.

Dominion, Volume 1, Issue 69, 14 December 1907, Page 7

LAW REPORTS.

SUPREME COURT.

CIVIL SITTINGS,

AN EXHIBITION CASE. CLAIM FOR £4,500 DAMAGES. INTERESTING EVIDENCE. l_ "IF MUNRO IS GIVING ME AWAY, I MUST GIVE HIM AWAY!" Tho Civil Sittings wore resumed yesterday morning, ilis Honour Mr. Justice Button taking his seat at 10.30 o'clock. Tho action between Gcorgo Scott (of Christchurch) v. The King-was,commenced. Tho statement of claim set forth that petitioner, is a fruiterer and , confectioner,, carrying on business at" Christ-church under the stylo of "The Atlas Biscuit and Confectionery Company,", and also under tlio style of " Tho Exhibition Fruit and Confectionery Company." On Juno 1-1, 1906, tho Exhibition Commissioners (acting for and on behalf of the King), in consideration of tho sum of £52,105., granted to tho petitioner certain space in the Exhibition buildings for the purpose of exhibiting therein biscuits and confectionery during tho whole period of the, Exhibition. On December 25 tho.Commissionors and General Manager wrongfully, ontored into possession of' the" space," excluded the ■ petitioner therefrom, and also wrongfully took, possession of the j biscuits, and, confectionery... contained, in tlio.'exhibit,, and: have .-iin'cb ,'rotairiod. the. sanio. For' a second cause : of action- petitioner said,that for the consideration mentioned it was agreed that ho should havo.tho sole and-exclusivo rights and privileges of selling confectionery and'-fruit at mid during the Exhibition. ' In violation of tho agreement the Commissioners wrongfully granted similar rights and privileges to othors. And for a third causa of action, petitioner said that he was wrongfully ejected from the promises, excluded from tho privileges granted to him, and his goods seized. Petitioner therefore claimed as follows:—On tho first causo of action, £1000 damages, and a further sum of £500, being tho valuo of the goods taken possession of and retained; on the second causo of action, £1000 damages; on tho.. third causo of action, £1000 damages, and a further sum of £1000, being tho valuo of tho goods taken' possession of. : The statement of defence set forth that if. tho Commissioners granted to tho petitioner the space in question)-such-grant,was not a contract ontored into by or'under tho lawful.: authority (expressed or implied).'of the Governor within'Sub-section-1 of Section .37 of tho Crown Suits Act, 1881, and no claim or demand in respect of tlio grievances alleged could be made upon or against His Majesty under tho' said Act. - If tlio grant was a contract within the proviiions of the Act roferrcd to, the acts of tho Commissioners in granting similar rights and privileges to others, in taking possession of and retaining petitioner's goods were wrongful acts done and committed in respect- of which thoro was no cause'of action. Tho agreomont was riot made in conformity with tho rides and regulations, and'therefore was of no binding forco or effect. Also, the wrongs alloged wore not, wrongs 6i' damages independent of contract done, or suffered by' or under, any authority mentioned in Sub-section. 1 of Section 37 of the Crown Suits Act, in connection with- any public, work as defined in Sub-section 3 thereof. Under arid by virtue of tho Now Zealand International Exhibition Empowering- Act," 1905, and of the. rules and regulations made therenndor, and particularly of Regulation Ts T o. 13, tho right, of action (if any) of tho petitioner in resnect of the matters mentioned in tho petition was against the Commissioners and not properly the subject of a petition under tho Crown Suits Act, 1881. ■ Mr". Slrerrett, K.C. (with him Mr. T. G. Russell.' of.Christchurch) appeared for the plaintiff,, and "Mr. G. Harper, of Christchurch (with, him. Mr; J. A.. Cassidy, of Christch'urch), for, tho King. The following jury was empanelled:—W. Berry (foreman),/W.H. Jones, Ernest Baird, Petor H. Walters, W. W. Mannill. Thomas Brookev, James Arcus. Hnch Slado, John Turner, John Bowors, W. MTntosh, and W. Sleinner. . Mr. R.nssoll outlined petitioner's case. Plaintiff gavo evidence that- he had close on £20,000 invested in- his, business. ,- In August,, tho Exhibition authorities invited, tenders for the right to sell fruit ((rid con : fectionery. His tender was accepted, and, subsequently, ho agreed that certain English confectionery firms, should have, tho. right to soil their goods on condition that ho was paid a certain royalty. His stall was one of tho- most attractive in tho Exhibition,. Ho conformed with tho regulations whilst lie was in possession of thestalk Early in December, Mr.-Munro wroto to him with reference to arrears of rent. Ho had not settled up, booauso his rights were being infringed. At that time tho authorities wore owing his firm £7000. Subsequently, it was alleged that articles, of jewellery were being-sold at his. stall. Plaintiff explained to tho authorities that new, attendants had inadvertently sold several articles, worth in all less thaii 25., from a show card, and he forwarded tho proceeds. ■ He considered that-ho had the right to sell all fruit sold at tho Exhibition; Other stallholders,. who had not purchased their fruit from him, had sold fruit salad. • Then, again, others sold -biscuits, although he.,, had tho exclusive right, and Mr. Munro was unable to prbvent them. On December 2<l ho refused,to sign a contract drawn up by Mr, Munro on the ordinary ..Exhibition contract. form, becauso it did."not contain clauses providing: for his exclusivo rights. On tho morning of Boxing Day ho was informed by telegram that Mr. Munro had closed his stall. At that timo, tho valuo of' his exhibit was £363 3s. Gd; of his stock, £396 Bs. lid.; of .his buildings and plant, £57-1 12s. 9d.; and of his electrical plant and drainage, £50 2s. When ho arrived, he was requestedby Mr. M'lntyro (Director 'of Exhibits) to giyo up tho key of his stalls. Mr. 'M'lntyro said that ho had received instructions from Mr. Munro to close tho stalls.' lii ordor to proveht a' scene, plaintiff handed over rho key.- He'objected to the authorities locking up: his exhibit,'-.stating that" somcono would havo to :pay;. for it. : -M'lntyro said ho-'was-very sorry, -but ho "was -only-"carrying -out instructions: Subsequently, 'plaintiff ..caused a telegram, to'be sent to the Minister'for Public Works. He was- not permitted access to tho goods again. '■ "Whilst" tho Exhibition buildings were being demolished, it was arranged that the goods should bo icturncd to his establishment to bo stored tree of cost awaiting tho determination of tho caso. This arrangoment was made strictly without projudico to his rights. Ho considered that tho value of. tho contract as a means of advertising was worth £1200 to him. Between" November 1 and Dccomber 26 (the dato on which ho was ousted) ho took in cash £856. Tho cost of the stock which ho'placed .in liis stall was-£553, and''when ho was "ousted £242 worth of that stock remained. His profits on tho salo of ,stock worth £311 amounted to £545. Businoss at tho Exhibition was much brisker after Christmas. If ho had been allowed to contimio on until tho Exhibition was closed his business would have increased by 50 por cont. He estimated that, with only partial rights, lio would, from Christmas on, havo takon in cash £2568, of,which amount £1125 would havo boon net profit. His Honour: Do you want a partner in your business? Witness: Oh, I wouldn't mind. Continuing, witness stated that, in addition, ho would havo made £187 on tho salo of ten tons of grapes which ho had arranged to purchase through the South Australian Commissioner. If ho had had tho solo rights throughout tho whole period ho would Rave made a- profit of £2692. Cross-examined, witness stated that ho had tho contract for the electric, lighting of tho Exhibition, the contract price being £7000. Ho was a member of the executive committee, also chairman of tho building committee. What was tho name of your business at the timo whon the tenders wero invited? —Tho Atlas Biscuit and Confectionery Company. Yet the tender was put in under the name of the Exhibition Confectionery and Fruit Company P—Yes, I am a wholesale maau.

facturer, and I did not wish retail vendors to know that I was tendering. , ~., As a matter of fact, was the Company then in existence?— No.

Did you know whether your tender was going to be accepted ?—1 -was not certain'; Mr. Munro showed mo tho amounts of the other tenders.

Where did this i take,, place?—ln . Mr, Alunro's office. Mr. Munro-gave mo-a piece of paper with the figures-on. Hive you got the piece of.paper?— Yes, at Uiristchurch. Mr. Mun'td gave me the option of tondoring above the.. highest tenderers, and I did so. If Mr. Munro is giving me away, I must give him. aw'av. ' '"'"' Did you ask-Mr. Munro for the figures ?— Ino. He approached moroif the subject. Continuing, witness stated that the-names.of the other tenderers wero not disclosed. Ho' received a letter asking for the personnel of his Company. The letter'was signed by Mr? Munro, on behalf of the Executive Commissioners. At that time Mr. Munro certainly know, tho personnel. ~No,contract was presented to him or to his" manager, who signed the tonder, and, in or"der w to get the matter settled, ho (plaintiff) afeked Mr. Stringer (his solicitor) to interview the Hon. Mr. HallJones. Ho did not know if Mr. Hall-Jones' said that tho concessions would bo withdrawn if the contract was .Mr.. Munrohad not repeatedly asked .-him .to..sign tho., contract. When the contract was eventually' presented to him in December,'"''lie declined to sign it unless the alterations"suggested by: his solicitor • were agreed to.. A;great part of tho confectionery in No. 2 stall,(near theConcert Hall) was stolen'after.he was'oust'ed.'' Tlio South Australian Commissioner'arraiiged': to supply him with grapes at the'rate 'of 4d." per lb., delivered, tho •retail-price to; be.Gd.-; per lb. When plaintiff was ousted, tlio Commissioner arranged with '•Vomerine- else to sell the. grapes. He would Jiav.e. had no difficulty, in selling twenty tons;" It was not"within' his knowledge whethcr'the ■ grapes' had been sold at a dead loss.: Hetwas not;now. on good terms with Mr. Munro. ~ ...; ,;.-. ;.-,....■ ,;, Do you consider that, you were .treated, in an arbitrary manner by Mr. Munro?—-Yes'. ; ' Mr. Munro did not givo : way "to your coii-' tontions with rcferonce to the extentof your rights?— No. Ho didn't-hudge an-jneh.- Mr, Munro would fall out with his own brother. His Honour: Quite right,".if;'ho" thougnV his brothor was in tho'wrong. -' Re-examined, witness 'stated that tenders wefo invited in separate lots. Mr. Munro did not want to'bo troubled with a.number, of holders of small stalls' as ho asked him' to put in a tender for-the lot at; a price a shade higher than the aggregate of tho highest tenders for.each stall. "At that-timfe' 1 he had not put in his tender. -Mr. ;Mmiro wislied him to tako all the .- Mr. _ Skcrrctt: It has' riot-been" snege'ste'd' that either Mr. Munro'or Mr. Scott'did'anything wrong. . "■'■• '■■■'"•-..•' •'.:'- His Honour: Well, why-did plaintiff'say.:- " If Munro is giving mo. away-I-imist-give him away." ■ "".. ;.".'.'... V" .' " Charles AYilliam Harris, fruiterer .Christ-" church, deposed that he was iii charge 'of plaintiff's fruit stalls at the. Exhibition.. Ono or two of tho stalls'might-have boon., closed for an hour or. two .owing .to. .absence, of assistants. They wore not closed for",any length of time. On the morning -in an official came along and., said.!ho. had, instructions to get him to closo up.the stalls. The official hoped he, would not givo.. h'ini any troublo in tho. matter" Witness'rang up plaintiff and told the official that plaintiff was on his way to tho stall. Mr. Munro came along and said that'the stalls would have to bo.closed. ' He- (M'r. Munro).-then requested aii official to summon a constable, who was ordered to take charge of the stall;' Mr. Munro directing him to see'that-noth-ing was taken out of- tho ■ oven a ; banana. Plaintiff then .arrived -and.., instructed witness to hand .over.the key....During the rest of the day an artilleryman was posted at tho door. ■"■'* '"- : ■'-' ".- ; - : - The Court then - adjourned- until nine o'clock this morning. , .-.- : ;,..- -~..,.