SUPREME COURT.

Dominion, Volume 2, Issue 537, 18 June 1909, Page 11

SUPREME COURT.

i RESERVED JUDGMENTS.

ISLAND BAY LAND PURCHASE. His Honour-Mr. . Justice Sim gavo reserved . ; lodgment yesteaday'morning in th&.bivil ac- . iiom Samuel Georgo Bray, carter, of Island Bay,-and Loua Kuch; wife of Frederick liuoh, ■ pork butcher, Wellington, heard on tiho previ- ; ; v : ous Thureday. Tho diiputo had reference to the ■ -purchase by plaintiff of a property, at Island Bay, regarding-which it was Sieged that , tiho defendant had,nob performed the.agreement. ; The claim was for £250 damages,, or, alternatively, that defendant bo ordored specifically to porform the agreement. Mr. 0. Beere . appoared for tho plaintiff, and: Mr. D. M. Findlay for tho defendant. : ; ■ His' Honour held, that'thero was default on ■ - the- part; of'tho plaintiff in payment of tho monthly 'instalments of £5; 7s. -Id., payable under the. agreement, and defendant, thorofore,- had>a. right-io oxorciso the power of sale conferred by clause Bof tho agreemont. Before - lexeroismg-V.that, rpower . defendant - should havo given tho notico required by faub- '. section:l of Section 94 of tho Property Law ;:Act, 1903. No such notico had/been, ,given, • • however, 1 and it followed, therefore,, th&t !;tlw \- : ealo '-imist be treated as null.. The plaintiff i .was .en-titled. to- a. declaration that tho sale, ' :* which' the defendant; purported 1 to make'/ on , i Mayi' 0 last;: was' 6f n6'effect, and that tho '.- agreement of May 31,-1906,' was still binding V on the parties. ' Thoro, wastho. question whether tho monthly instalment of £3 10s, was intended to be paid every calendar month or every liiiwr month'. ; .Tho wards "four weekly . payments'' made it olear thata lunaT month , I wasVintended, : and. that tho words ; "on the • third Monday in each and every month", • must bo-rejected or modified so far as was necessary, to givo effect to' this ' intentiojn, Tho arrangement to pay £5 7s. 4d. orery calendar month mado the question of little prac-

i tical. importance, 'save .that .it was necessary to'know when each instalment ,of £3 10s. O'lght .to. ho dobiterl' in tbo acconnt hotwoen tho parties. It would, of conrso, bo the duty ■ f of:-the'-plaintiff to pay onco tho : sevep monthly instalments of £5 7s. 4d. now in ar- / reir. ahdtto i continue to make those . monthly ; payments until tho £173 had beon fully, paid, with' all interest then owing under the agrcc- :.. mont. When that had been done tho plaintiff. would then have to' resume the payment . of.;.the ! : mteTest. j .';-o^'.v:,tlia..'.£3()o,-in' ; -.KiMS' bi clause 3 :of tho'agreement,. Plaintiff was al-lowed-costs on' th.e lowest scole, with; dis- .' bursements ■ and ''witnesses' expenses," r ti " bo" fixed' by \th« Registrar. '. ; ; ;

, - HATAITAI BUILDING DISPUTE. • Judgment waß also, given in tho case of Dutton v. . Brcen, hearing of which was concluded . before his 'Honour Mr. Justice' Sim, last Friday. This was a'claim for £292 12s. 6d., alleged to .be the balancq-;duo on a con- -. tract fo'r.i the'erection', of a dwellinghouso at Hataitai. -' Mr. A. - Dunn apjxiared for the plaintift," Harold J. E. Dutton, builder and contractor, Wellington, and Mr. A. Blair, for the .defendants, Annio Breen, and her husbaud.-vEdward Potor Breen, marine engineer, Wellington. .""in,-giving judgment, liis.Hoßour said that plaintiff alleged that ho -agreed, to: erect the dweUinghouse' for the .sum of £835, and that'the work had been duly completed." . De'fondants, alleged -that the arrangem<mt was that the builaitig.'Was to bo erected at actual cost'- for labour and. materials, plaintiff : be-ing-paid caiiienter....Eis Honour , was convinced that the conduct of the : partios -,in 'the later:stages "of- the "work ■ ;thoory-;that . the pla'intiS was ;wo.rkrag.'- l 'only,:as : - a; man on the job. .He found, 'therefore, that ' the pkintiff was a contractor for-the erection •of the building at the price; of £835. vPlain-. tiff- was not entitled to recover anything in ' respeot of the; contract the whole work was done,-or unless it could 1 be shown that it, was - through- the fault of;' the, defendants ..that;the.-..work n'aa .not completed, ; there sion. t¥at the parties had entered into a ■ fresh contract for payment for'the . work actually- done. His Honour,found that the speci- ; fications regarding .tite- iviiidowfishes, roof--sarking, verandah; chimneys and painting had 1 not been carried out, and that the plaintiff : had f aited to erect the building a<w>rding to his contract. Payments amounting to £523 Bs. 6d. had been made from time to time on account;of the. work. ; As; the plaintiff not/ can? out. his contract, ho was not entitled to recover' any part of his present claim. Judgment must, . therefore,- .be for. : the defendants, with .costs to'Ecalo:;;for preparing for trial, and trial,of the issuea directed to be tried, as on a claim for £292 12s; 6d., with' an of £6 6s. per day for two ertra'idayef-add'with jthe corts; of ;;the ;mbti6ii . to.'.; set; aside tho judgment, i which were made costs ia tho causo and fixed i atv£3 35., and disbursements.Defendants were entitled also to their disbursements and I witnesses'; oxpenses, to be fiscd by tho Regis-1 trar.'

IN DIVORCE.

His Honour Mr. Justico Sim hoard a plea for,;;. dissolution of ■ marriage, Arnold v. ■ Arnold, on the ground of misconduct. Mr. ?Skerrett, E.C. "(with Mr: Stout as associate), i appeared on behalf of. tho petitioner, .and. the respondent, Eli William Arnold,' appeared; in person; His. Honour granted a decree nisi, and made aji'interim order that the petitioner should have tho custody of the children.. Petitioner's costs were allowed on. tho higher scale. An application for divorce was made ■ by 'Arthur. Edward Varley on tho ground of his .wife's misconduct, with:;ohe; Charles Roots. ;Mr.'Gray : appearcd for.tho petitioner. ;Neither respondent: (Emma Varley) .nor the ;avrespoudent/■ was: represented;' A" decree nisi was granted, petitioner to have the custody of the child. Co-respondent was ordored to pay costs on the lower scale. . ' • lurcher! ovidenco was heard in the case of Nazzha -.Kallil Noon v. Noon-Assad Noon, a wife's petition on tho ground ;of desertion,which came beforo his Honour on Monday last. Mr. Gray appeared for the petitioner, respondent being. unrepresented. Counsel stated that.tho.parties fiad been married in and . had- subsequently come' to the .colonies. Tho respondent.had left his .wife . and family - ..to look after.;, themselves -. in Adelaide, whilobe was up country hawking. No documentary evidence of tho marriage: was available, but ha had_ learned, from a local Syrian of some intelligence 1 that there was bo; provision in the Mount Lebanon district oIA. Syria;' for . registration : , of marriages. in .evidence,-stated that she had been married .- to,. the respondent : at . their , Datiye; village,' Sibel, seventeen years ago, in ; her! aunt's house. ,;The~ceremony was according to .tho.Roman Catholic religion, and was performed by the Rov. Father Josbph David Koory. : Sho was then 15 years of age, and the'respondent .was .19 or .20. She remained with her .-'people for., four weeks, and then went to hor husband's 'house.; .They'lived in Sibel for about twelve - months, and a son, Naycff; was born..- Fpur.weeks after.the birth of, the.cliild the respondent loft for-Australia, and petitioner,, following, joined him in Adelaide. : Since then' an estrangement/ had ocoiirrpd. A decree nisi was granted, and the rospohdorit : Wfi3' ordered to 'meet the costs, on the Jowo.st .scale, . ' . . In the action, R.varf v. Ryan, which, was » niotibn for a ! decree absolute, giving petitioner the custody of the children and permanent alimony, Mr, C. A. Arthur, who appeared > for the respond«it (Charles W. C. Ryan, jeweller, of Willis Street), entered an objection that his olielit had not been served with' a: copy of the amended petition. 'Mr. It. B. Williams, who represented the , petitioner (Jane Ethel Ryan), stated that, after itn 'adjournment, although notice of the hearing, bad be<™ given the respondent, the petition had rot been served. H» had, therefore,, been oompelled to commence proceeding's over, again. The .potitton- having now been toryed, respondent .would "hare: 14 days to prepare n defence/ if ho desired. Tho case was, therefore, struck out. - IN BANCO. ' ' ■ _ CASE ON APPEAL. An appeal against the decision, of the magistrate was heard beforo his Honour Mr. Justice Sim yestorday' affernooh. The New Zealand 'Acetylene Gas -. Company, Ltd.,,

manufacturers, Wellington, appealed against tho; decision of Dr. M'Arthur, S.M., in the caso in wbicli P. A. Piper, settler, of HawkeV Bay, was defendant. . : .'Plaintiff, according'to statements in evidence, took an ordor from tho dofendant to inatal. a gas plant in defendant's house at Wairoaiti, Hawko's Bay, as soon as possible after tli© Napier Carnival, which was supposed to .Inst from March'-, 15 untiK March 25..; As a - matter -of fact, /the -carnival did not end until April, 8. On ; tliafc clay, plaintiff wrote to defendant stating that he would bo ablo to put in tho gas olant in about three wcclts f timo. Then defendant wrote back repudiating the,contract on tho ground of delay. Tho magistrate held that tho delay proposed did entitle the dofendant to repudiate the contract, and gavo judgment for tho defendant. The claim in the Magistrate s Court was for £10 expenses,, which plaintiff had been put to for carting, freight, etc. The notice of appeal set out that— (1) There was no evidence in support of the judgment, and plaintiff was entitled to judgment upon the evidenco; (2) that upon ■ the true construction of tho agreement between the parties there was no warranty as to the time at which tho, gas installation was to be effooted; (3) that in the, agreement betweeft tho parties-..the; question , of,:.the., time at which the installation was to be done was' not a condition' Upon 'breach ~of which" by--the-plaintiff tho defendant was entitled to repudiate the contract. . . Mr. 1 Neave' -Appeared 'for tho appellant, and Mr. D. M. Findlay for the respondent. His Honour, after hearing counsel, reserved his'decision. .'. v;