LAW REPORTS.

Dominion, Volume 4, Issue 1073, 11 March 1911, Page 3

LAW REPORTS.

SUPREME COURT. CLAIM ON COAL SHIPMENTS. '' ' DISPUTED WEIGHT. ;. Mr. Justice Cooper,' sitting in Banco yesterday, hoard tho appeal of Samuel Brown, Ltd., "against a decision of Dr. M'Arthur) S.M. Tho appellants had claimed, in the Lower Court, to recover .ISa. -3d,, as balance of account for coal sold 1 and delivered to tho T.vnesido Proprietary Coalmining Co., Ltd., and tho: magistrate had given judgmont for the defendant. Tho case had reference to 400 tons of coal, more or less, delivered in several lots during December, 1909, the plaintiffs putting the price at .'£3 Bo IBs. 3d., and tho defendants having paid £323, and denied further liability. vTho 'magistrate, in his judgment, said that-tho solo matter in dispute, was the weight of the coal. The'plaintiffs "tended .that'.they sold on a basis of five baskets to the ton, and,the defendants contended - that they , bought according to. weight, and that by their weighing six baskets went to tho ton. Ho was satisfied that both parties were genuine in thoir contentions, and that this .was one of those disputes that arose through unforeseen circumstancos. The coal was purchased in December, 1909, and the dispute, arose shortly afterwards. His Worship found thatthore was a weighing; though hot a mutual one, in which the averages amounted to six- baskets to' the'.ton. • jn his * opinion, the'defendant's 1 cheque was sent in settlement of the dispute, and was received with a! fuU knowledpo of facts, or with the means of knowing them; and the plaintiffs . were estopped by their receipt of. the-cheque.and by their conduct in still delaying from January to June. ;As "ground for appeal,, it was submitted that, the judgment of the.magis : trate was erroneous in fact and law; thjit-it was proved that the weight of coal claimed for ;waß delivered, and that tho'defendant agreed to pay for it'as claimed;.:that'it',was proved that feridant.did-.not pay,for all the coal, arid'• that there was a balance of £57 18s. 3d., due; that it was not proved that-the cheque for, £323 was in settlement or'that'the receipt was given with ftdl' knowledge of the ■ facts or with jrieatis ! of -Knowing > them; - that 'tho magistrate -wrong in holding that tho plaintiff was estbppedb.v the receipt . given for tho cheque and by delay, it Earing ibeen .proved, that the cheque wis' received on . account, and that be-, tween January and June plaintiff asked several - times; for settlement of balance of account.

■ Afterhearing Mr. A. L. Herdman fof the appellant, and Mr. W. H. -D. Bell for . the respondent, his Honour reserved his decision.

;THE;PINNOCK BANKRUPTCY. .' : - ABOUT AN ORGAN. ''A,..matter, arising out of the•.baiikrupt'oy.; of .George Piiuock was investigated; ; in >the,-Supreme Court .yesterday before Mr. 'Justice-Cooper. -. Mabel Mary Hirst,tasked'.- the'.. Courtto.- declare - her the (true owner . of, an organ, .arid-to o'fdor; the ■ Official Assignee to deliver-it to'her.'. / /:' .' ... : -...

V The plaintiff: , was ' represented ' by Mr.'.Samuel j and the Official Assignee by air.-Wi H. D. Bell.

■.From' affidavits and evidence' it appeared that plaintiff, who was governess and assistant hotelkeeper in.. Pinnock's late, establishment at the Trocadero, Jjqught .the: organ. from, him yfor, £15 v in monthly •'instalments of '30s'." "before Pimio'ck" took ;the, Commercial Hotel, she had' the instrument removed thither, aid .it. was kept there in Pinnock's 'sitting-room, which'was used, by, Miss Hirst. It was included (by a mistake iii the. judge's opinion) in a list of Pinnock's property drawn up for the purpose of'a lease to Almond, and the Official Assigneo subsequently seized it as part of the effects of I'iuncck, under the' "reputed ownership clause."

■ His Honour found that the organ was wholly owned by the plaintiff, and was in the. joint possession of plaintiff and Pinhock. ' He ordered the Official Assignee to deliver the organ to Miss Hirst, and pay 5 guineas costs out of the. estate. ' . ' . ,

FOXTON PROPERTY CASE. , PREPARATIONS FOR APPEAL, i Evidence and argument on a certain phrfse of the Foxton property ease, P. S.' Easton v. J. R. Stansell, were heard by Mr. Justice Cooper yesterday. In a judgment,, when the caso was last before the-court at the beginning of the year,'his Honour,decreed that Stansell could transfer an acre and a quarter of land'at' Foxton which had beeri omit-ted-from a conveyance taken from Stansell some time before by Austin and Easton. ;;His Honour then left over the- question' : of the .value -of the land, and also the question as, to whether damages; 'if any, .'could 'be awarded to the' plaintiff. •'At, yesterday's, sitting, his Honour,, Mr.'.C- H... Tread well,, for the plaintiff, and Mr. A. A.- S. Mentcath, for the defendant,, refused damages,, but in the event of this decision being over-ruled by'.the-'Court, of Appeal, ho fixed the'damages at £75., He placed the; value of'the land in August. 1907,' at £375, and its present ,va|ue at £300, and reserved leave to the plaintiff to" move for £300 in the. event of specific performance, not being' obtainable^'.

'.His Honour also refused an application by Mr. Ment-eath for leave to dis-pense-with security for costs on appeal, but'said he would dispense with security for the value of the property, if the title. of the property was brought into court. He granted a stay of execution for fourteen days, on condition that the defendant prosecutes his appeal at thi next sitting of the Court of Appeal, deposits an _ unencumbered title, and gives security to the satisfaction of the-Registrar for the costs of this court, and the court below.