SUPREME COURT.

Dominion, Volume 4, Issue 1113, 28 April 1911, Page 3

SUPREME COURT.

THE BIRCHHILL ESTATE. The iomenhat familiar action iu regard to tho claim tor commission on the sale of the Birchhill estate, AlarlVjorough (valued with stock at c£37,0(J0) was before tho Supreme Court again yesterday, when judgment was given by Mr. Justice Chapman in tho case Frederick Hales, retired sheep farmer, and~others, v. Wm. Kusr.e\\ Devereux and Devereux, King and Co., Ltd., commission agents, Christchurcl/. The original case was heard b.y Mr. Justice Chapman and a jury of twelve on February 1G and 17 last. In this action Frederick Hales, retired sheep farmer, Wellington, _aiul others, claimed from Devereux, King and Co., commission agents, Christchiirch, the return of a sum of .£SOO, deposit, alleged to have been paid to defendants as part purchase money for the estate. Defendants counter-claimed for £7M, as commission on the sale of the estate. After hearing evidence the jury returned a verdict for the defendants. At the request of Mr. A. Blair, who appeared for the plaintiffs when the matter was last before the Court, his Honour reserved leave to move for a new trial. The Court ruled that, upon a date to be fixed, argument should bo taken from a nonsuit point raised by Mr. Blair. Tho judgment delivered yesterday was on tin motion for a nonsuit or judgment for the plaintiff (defendant to tho counter-claim), pursuant to leavo reserved, or, in the alternative, for a new After reviewing fclio fac'.s of the ca?c at considerable length, his Honour made I he followins pronouncement:—"Judfrment for tho plaintiff in the action, and on the counter-claim;- costs ns .P er scale as if SfM were in dispute; witnesses' expends -ml disbursements In be fixed by th? Registrar: costs of joinins Pev. o«"is allowed to him agrunst plaintiff."

PROMISSORY NOTES. AXD A SHIPMENT OF LEATIIEE. The sequel to the findings, of fact by Mr. Justice- Cooper in the ease of Cieorge, Doughty and Co., of Wellington, merchants, v. William Jlenry Nash, of Wellington, leather merchant, took place yesterday. This ca.'o was a claim of J.'37li Is', on two promissory notes, and a coun-ter-claim by A'asli for .£3OO. His Honour gave judgment in the action betweenNash (plaintiff by counter-claim) anil George and Doughty (defendants by counter-claim). The judgment was on tho following points of law arising upon tho facts. :— Whether Nash is entitled to receive from George and Doughty the balance of the Indradovi shipment (of leather) or its value? If he is, are George and Doughty entitled to a lieu on the shipment or its proceeds for the amount paid by them to the bank in order lo obtain the bill of lading and for tho duty paid by them? Who is entitled to a refund of tho general average to bo paid by the insurance comnany—Nash or George and Doughty? Substantially, said his Honour, the answer to these questions depends first upon whether the property in the shipment passed to one Hunt.' If it did not. then George and Doughty were entitled to judgment. If it did," then the two other questions would havo to be considered. After reviewing the focis and the arguments of counsel at some length, his Honour said that, in his opinion, where the bills of lading- were returned, as they were in this case, by the hank, and where the bill of exchange "accompanied them, as it did here, and where, as here, the person' on whom, the bill of exchange was drawn did not honour the bill upon presentation, the property -did not pass to him. In the Court's opinion, the property had not passed to Hunt when ho entered into the ogrec--ment relied upon by'Nash. It was clear that Nash could not have obtained possession of the bills of lading unless he paid the draft. Jle never offered to pay the draft, but relied entirely on Hunt's promise to do so. When George and Doughty agreed with Hunt to purchase tho goods, they also could not obtain possession of the shipment without first paying the draft, and this they did, and. thereupon, having obtained possession of the bills of lading by payment with Hunt's consent of the bill of exchange, they became the owners of tho shipment. If the argument advanced on behalf of Nash wore to prevail, the result would, be most inequitable, for then Nash would be entitled to obtain possession of the goods, the full purchase money having been, in fact, paid by George and Doughty. And he could not havo obtained the bills of lading without himself paying the bill of exchange. He had, indeed, nlready profited by George and Doughty's outlay to the extent of some £i(l or .£BO, they having, in accordance with their promise to Hunt, delivered to Nash two bales out of the total'shipment of 85 bales.

In my opinion, concluded his Honour, George and Doughty are entitled to .judgment on the counter-claim, and as, in my opinion, tho property passed to them, they are also entitled to the benefit of .the insurance policy. There will be judgment, for George and Doughty upon the counter-claim, with costs on the middle scale as on a sum of JE3OO, with one extra day at .£ls 155., with necessary court fees, and witnesses' expenses (o be ascertained by tho. Registrar. As tho whole contest has been in reference (o the counter-claim. I think that, in tho action George and Doughty v. Knsh, the proper.course is to give judsment for tho plaintiffs for the sum of -£372 Cs. -id.—the amount of the two '.n'omissory notes sued upon", with interest at 8 per cent, from thp'duc ri.ite nf each promissory note to' the date of judgment, and,for M ss. costs and (he necessary court fees.