MAGISTRATE'S COURT.

Dominion, Volume 4, Issue 1135, 24 May 1911, Page 3

MAGISTRATE'S COURT.

(Before Mr. "IV. G. Riddcll, S.M.) A FIDELITY BOND. THE GUARANTOR HAS TO PAT., "The guarantee was for Lamb's benefit as well as plaintiffs' and, as the agreement was in his possession, a duty was cast upon him to show it to defendant. In view of defendant's carelessness with regard to its contents, I doubt if lie can now say that plaintiff should have actively placed its terms before hiin prior to his signing the guarantee," remarked the magistrate in delivering a reserved judgment yesterday morning.

The case whs otic in which the, Southern Sales Ltd., carrying on business in Wellington, sued John Clark, clerk, of Christchurch, to recover ,£52 17s. ,1(1. in connection with the employment of Charles Graham Lamb as a traveller on behalf of the plaintiff company. The claim was based on the written guarantee and promise'of the defendant, dated August 19, 1910, consenting to bo responsible to the plaintiff company for the fidelity of the said G'fWles" Graham Lamb .during tho period covered by an agreement between tho plaintiffs and Lamb, and for the repayment of any moneys in which he (Lamb) might become indebted to the plaintiffs. Mr. W. IT. D. Bell was for plaintiffs, and Mr. Morison for defendant.

It appeared from the proceedings that Lamb had answered an advertisement appcariag in tho Chrislchiireh papers, and, on coining to Wellington, was employed by tho Southern Sale.' Ltd., to travel in tho Cnn.tcr.bury district for the sale of veterinary outfits to farmers, for which sales ho was to receive commission, but was to piiy his own expenses. One of tho conditions of employment was I hat he should obtain a guarantee for the sum of .£IOO for his fidelity, and the defendant went bond for him. On receiving orders, tho outfits were forwarded to Lamb, and their cost, le.-s commission, debited to him, his instructions being to obtain payment on delivery, and to forward same io the company, to be, credited to his account. On December 5, Lamb resigned, and, n.s several farmers, who had received outfits had not paid up, the plaintiffs now sued defendant for the full amount at debit of Lamb's account, viz., .£52 17s. 3d.

Mr. Morhou, for the defence, had argued (1) that, before plaintiffs could sueMed, it must be, shown that Clark knew.

all (he particulars of (he employment of Lamb, and that it iv;h (lie duty of ilie person guaranteed to reveal to the guarantor every material fad, which would atl'eet his mind when deciding whether he would or would net become a parly io the contract; (2) that, as plaintiff:, admitted that there was no complaint against Lamb's integrity, there had been no breach of fidelity on his part; (:i) that as the agreement was never shown to defendant, ho was entitled to assume that it was an ordinary business agreement to employ, and not an extraordinary one; (1) that the contract of employment was entered into before Hie guarantee, and, as Lamb was already in the plainiilf's employ, there was no consideration for the guarantee.

With regard to the fourth objection, his AVorship was of opinion that it could bo disposed of by the fact that, although the agreement of employment signed on August 10, Lamb did not commence work 'with the plaintiff company until September 1, after the guarantee had been signed. "To the third objection," remaried the magistrate, "it may be said that there was no arrangement between plaintiffs' manager and Lamb to suppress l.he terms of the agreement from defendant. The guarantee refers to the agreement of employment, and that, fact having been brought under the notice of defendant, a. duty lay upon him for bisown protection to inquire into its terms." With regard to the first and second objections, his AVorship did not hold with the view that the contract was one that guaranteed only the fidelity of Lamb, but thought that its language was plain enough to show its connection with Lamb's agreement of employment, and, from that, his liability under Clause 3 of tho agreement, which stated that the employee should be responsible for any damage or claim which might arise against the company through the cause or act of the employee, and should indemnify the company for any loss or'expenses of the company caused thereby, and bo financially responsible for all goods or other property under his control, whether remitted for or not, but the company should allow full credit for all goads returned in good condition to the office, and tho company should have the right to recall any goods in hand, whether remitted for or not.

The magistrate further considered that, if Lamb had carried out written instructions, "when nutting .through, the delivery ... on no account to leave any outfits, unless payment was received in full," the greater part of the present claim could not have arisen.

After a lengthy review of the law on the subject, judgment was given for plaintiffs for the amount claimed, £o2 17s. 3d., with court costs £2, and solicitor's fee .£3 12s. BOTE PARTIES SUCCEED. (Before Dr. A. Jl'Arthur, S.M.) Reserved judgment was delivered in the case in which Jamss Bringins, boatbuilder, of Wellington, sued Peter Heyes, accountant, of Wellington, to recover the sum of £18 Cs., balance alleged to be duo for work and labour done, and materials supplied in removing defendant's launch Titania from the Boat Harbour to the plaintiff's yards, removing old engine, relitting new engine, replacing deckhouse, repainting, etc. Jlr. J. C. Peacock appeared for plaintiff, and Mr. J. J. M'Urath for defendant. Defendant had filed a cross-action claiming the sum of .£2O, alleging that, in the month of August, 1910, he had entered into an agreement with Bringins, whereby the latter agreed, for the sum of ,£lO and the old engine, to do the following work to the launch: (1) Remove the engine then in the launch, and fix in its place a Thorneycraft engine; (2) remove the deckhouse then on the launch, and replace it by a smaller deckhouse; (.J) place the new engine in a separate compartment,'and give access to it from the deck of the launch. It was .further allied in the claim that Bringins did the work referred to in the agreement m a bad and unworkmanlike manner, and the claim was made in respect pi the loss sustained by Heyes owing to I lie defective workmanship, and unskilful ajut. negligent treatment of the engine by Bringins while effecting repairs. . "Thes" cases are most unsatisfactory to come" before a Court," said his Worship, "for the old reason that the parties have entered into oral agreements where there ought to have been some memorandum between them. The evidence ot the two principals is absolutely contradictory of each other. In Bringins v. Heyes, 1 cannot say that there was an agreement to do all'the work enumerated for the sum of £10, nor am I able to say that the charges made were overcharges. I do not think they are. In Heyes v. Bringins the evidence leads mo to believe that (ho defendant, by bad workmanship, did damage to the engines, and there is a . categorical statement sworn to as to the work necessarily done, to repair that damage, and the reasonableness of tho charges for doing that work. Each party will have judgment for tho amount claimed under the equity and good conscience clause. Ko costs are allowed in either ease." '

~ FOR GOODS SUPPLIED. The Atlas Biscuit and Confectionery Company sued Edmund Marriott, hairdresser, of I'eathorston, to recover the sum of ,£1 Ms. Id., alleged to he owing on account of gcods supplied. Mr. Put-

ram appeared for plaintiffs, and Mr. G. Toogood for defendant.

After hearing brief evidence, the magistrate gave judgment for plaintiffs for tho amount claimed, with ccsts .£l.

CLAIM FOR POSSESSION. In a ca-c, John Milthcll v. Charles Henry Smith, judgment was given fur lln si in-: n ill. claim:,!, XI IIK and costs .£1 10s •>«., an;! possessi'jii by June 15, 1011.

UNDEFENDED CAMS. Judgment by default was given for plaintiffs in the following undefended cases :—l{. ajul E. Tingey and Co., Ltd. v. lnrk and .Sous, .till IBs. 7d., costs £■> ■>*. (id.; Robt. M'Ciuiro v. 'Wallace JfC.uire.C7 costs .£1 3s. Oil.; same* v. Edwin M'Uuire, .£2 7s. (id., ccsts ]•>»- • iaxieab Co. v. Edward 11. Ilarbsr, ,£l(| os.ld. costs .£2 OS. (id.; Jlorris l-'ruhauf >■ li- Jl. ilarbroe, .£7, costs .tl :]s. M . Jo-ph Boucher v. ]:Ve<lk. lvelligher i» ai", i ,' co ; ts ss - ; •• 1,,,c v - Michael Mulcahy, £] 13s. ,),)., to . (s _~ . same v. Charles Lowe, .tl lis. fid' ™ ; s jo, ; Southern Sal,,, Ltd., v'Henrv mice AlMutyro, .£155 (is. (5,1., costs .£t (is Gd.; L. Stent and C... v. U. Cook, .£3 10s ,'.'['/;'? 1 0; '. J Huti County Council v. Henry \\ lineman, .£8 Ms. 2,1., costs .El 3s. Gd'Joseph Nathan and Co., Ltd.. v. E. Harrison £12 125., costs .£1 ins. fid.; Clement ". Ualker v, Thomas O'Donnoll, ,£1 lis •«!., costs 55.; Malcolm George Moid v. AV. Jl. Moore, ,£!) os. (id., co.sts'lls.; same v J. Lucas, .£2 3s. 0,1., costs 55.; Minister lor Mmes v. Octavius I'. Cook, .'£s lis. 3d., costs 135.; same v. Cole and Sou, costs 125.; Patrick J. Griliin v. Frank Rhodes, .costs 155.; Arthur T. Clarke and AVilliam A. Flavell, assignees in estate of Peter M'Cardle, v. James Fraser, «£2 35., costs 10s.; same v. Peter M'Donald, £ld Is. 3d., costs £1 lis. Cd.; Joseph T. Lewis v. Alfred J. Hart, £o, costs £\ os. Gd.; D.I.C. of New Zealand, Ltd., v. Harold Greville, .£ll, costs £1 I,os. Gd.; A. A. Stowell v. Alexander Nickoz. Jil Bs. Bd.. costs 55.; Gladys Aitken and Una Aitken v. A. Henderson, costs 17s. • JUDGMENT SUMMONSES. Henry Silk was ordered to pay .£2 lis. Gd. to Atkinson and Bennett on or before June G, in default three days' imprisonment.

Patrick Meehnn was ordered to pay ,£1 Ss. Sd. to G. I!. AVilton, on. or before June (i, in default seven days' detention.

In the case of the Wellington City Council v. Andrew Compton, a claim for «£3G os. 2,1., defendant was ordered to pay the amount on or before June.fi, or undergo fourteen-days' imprisonment.

Harry Hooper was ordered to pay .£l2 3s. !)d. to Arthur Leeden in monthly instalments of 20s.

No order was made in the case of Te Aro House Drapery Company, Ltd., v. Timothy Moynihnn, a claim for .£3 Bs. -Id. POLICE CASES. (Before Mr. AV. G. Eiddell, S.M.) Annie AViuifred Dunn, who had been twice previously convicted of drunkenness in the past six months, pleaded guilty to a further lapse, and was fined 10s., with the alternative of t8 hours' imprisonment. Walter Thomas Miles pleaded guilty to a charge of being found drunk while a prohibition order, was in force against him. As' this was the fifth breach of (he order, accused was declared a habitual inebriate, and sent to the Inebriates' Home at Eotoruo, to be there detained for one year.