LAW REPORTS.

Dominion, Volume 5, Issue 1442, 17 May 1912, Page 3

LAW REPORTS.

LONG CIVIL LIST.

HEARD IN SUPREME COURT.

CLAD! FOR xm DAMAGES,

Accident in a city warehouse in June last formed the basis of a. claim for. damages heard in the Supreme Court yesterday before the Chief Justice (Sir Robert Stout) ami a jury of twelve, of whom Jlr. Wilfred Kellow'was chosen foreman. The parties were Douglas George Jl'Girr (guardian ad litem, Hon. John Rigg, M.L.C.), plaintiff, and Phelps, Wilson, and Co., warehousemen, of Wellington, defendants.

I -Air. C. P. Skerrett, K.C., with Mr. !•'. {; lv ,P, u . y '. appeared for (ho plaintiff, and Air. I. Neavc for defendants. _ Plaintiff (.M'Girr) was employed as an assistant packer by Phelps, Wilson and Co. at their warehouse in Harbour Street, and, according to the statement of claim, was required to use a lift in the building. llns lift, he alleges, was bv, the negligence and default of Phelps," Wilson and Lo., constructed unsatisfactorily and was unfit to be used for the purpose for which At Ctirr was required to use it. On June C, 1911, in obedience to orders, Jt'Oirr went to use the lift, but, so it was alleged, it had been removed by the negligence of some person employed by Phelps, Wilson and Co., and without warning, with the result that Jl'Girr fell down the lift well and was seriously injured. Since the accident ho has suffered considerably, and had incurred nursing and medical expenses. In respect of -the accident he claimed ,£lB IDs. for nursing exposes, .£25 Os. 6d. for medical attendance, <£500 for damages, and costs of the a':tion. In the alternative, Jl'Girr alleged that his injuries were the result of an accident •arising out of, and'in the course of, his employment. He therefore claimed J?250 under the Workers' Compensation Act. for permanent partial incapacity. In the statement of defence, Phelps, Wilson and Co. denied that the lift unsafe or unfit for use, or that it had been removed from tho floor, on w':icli M'G:;i was working, by any person in their employ. J.hey denied that the accident was the result of any negligence mi their part, but declared that it was the outcome of negligence and carelessness on the part of Jl'Girr. himself. The lift, it was asserted, had been regularly inspected by competent engineers every week. In regard to the second cause of action, Phelps, Wilson ami Co. admitted that liic accident arose out of, and in the course of, Jl'Girr's employment, but denied that lie was permanently partially disabled, or entitled to the amount claimed. Further, they maintained that the alternative claim could not succeed in the Supreme Court.

A large number of witnesses were called on both sides, and the hearing proceeded I throughout the day. At mid-dav the jury adjourned to Phelps, Wilson and C'o.'s warehouse in Harbour Street to inspect the lift in the building. On the conclusion of the case for tho plaintiff, Mr. Neavo moved for a nonsuit on the following grounds:—(l) That tho evidence adduced by plaintiffs disclosed no negligenco on the part of the defendants, and no breach of duty on the part of the defendants towards plaintiff; (2) that tho plaintiff himself was guilty of contributory negligence in failing to ascertain tho position of the cage beforo stepping on to what ho thought was the floor of the cage.. Theso points were reserved by his Honour, and Mr. Neavo then called evidence for the defence. The jury retired at 6.15, p.m., with seven questions before them. At 10.15 p.m. the jury returned, and stated that they could come to no decision, i His Honour: You can't agree upon'the first two issues? The Foreman: Wo can only give a 7 to 5 decision. Mr. Kelly suggested that tho other answers should be taken. His Honour said ho would take a note of them, but ho could not enter up judgment. '■' The questions then stood as follow— 1. Was tho lift insufficiently lighted, and not, therefore, reasonably safe for use ? Nat answered. 2. Did the plaintiff sustain serious. injury by reason of the lift being insufficiently lighted? Not answered, 3. Was tho plaintiff directed by the defendants to place goods upon the lift, and did ho sustain injury while so doing? Answer: Yes. 4. Was the plaintiff directed to work the lift? Answer: Yes. 5. Was tho plaintiff guilty of contributory negligence in having failed to ascertain the position of the cage of tho lift before stepping on to what lie thought was the floor of the said cage? Not answered. 6. Did the plaintiff agree to take the ri?k, if any, incurred in placing goods upon the said lift? Answer: No. 7. What damages (if any) is the plaintiff entitled to recover? Answer: .£SOO, by 9 to 3. Mr. Neave: The nonsuit points are still available to mo, your 'Honour. His Honour said that was so. Mr. Kelly said he would avail himself of the necessary stops to have a new trial.

BREACH OF WARRANTY. JURY AWARDS .£SO DAMAGES. Mr. Justice Chapman heard further evidence in the Supreme Court yesterday in an action for damages for alleged breach of warranty. The parties were Wesley Knight, farmer, of Otaki, plaintiff, and Samuel Smart Mason, farmer, of Lower Hutt, and Thomas Mason, of ManaIcou, defendants. From the statement of claim it appeared that on July 22, 1911, the Masons were carrying on business at Manakau as farm ors in co-partnership. On that date they sold to Knight ten tons of potatoes at i'li per ton. At the time of the sale, Knight expressly made known to the Masons that the potatoes were required for seed purposes, aud he relied on the skill and judgment of the Masons r'o provide him with potatoes suitable for his purpose. It was (so the statement of claim alleged) in tho course of business of tho Masons to sell seed potatoes, and there was consequently implied by law in. the contract of sale a condition that the potatoes should, be reasonably fit for seed purposes. The Masons (it was alleged) expressly warranted that the potatoes were not "blind," and would therefore be productive, and Knight's purchase was induced by the implied condition and express warranty. Knight planted the seed potatoes, and it subsequently appeared that a large proportion of them were, and had always been, unfit for seed purposes, and were moreover "blind." lor these reasons Knight claimed .£225 damages. In the statement of defence the Masons donied express warranty. Tliej- said that tho potatoes were good, sound, lit for seed, and were not "blind." Tho defects, if any, in the growth of the potatoes were the result of Knight's unskilful treatment of tho potatoes. Jlr. 31. Myers appeared for Knight, and Mr. C. U. '.Mori.son for tho Masons.

The greater portion of the evidence had teen tendered on the previous day. After other witnesses had been examined yeslcrdav, lengthy addresses followed. At the close of the case, five questions were submitted to the jury, and they retired to consider them about '2.110 p.m. At iAO p.m. the jury returned, and Iho foreman .stated that it had been agreed to answer the queslions as follow.— 1. Did the defendants or either of them expressly warrant to the plaintiff that the seed' potatoes were not blind?—" Yes." 2. Did the plaintiff rely on his own skill and judgment in buying tho potatoes, or did ho rely on the skill and judgment of the defendantsr-"0n that of the defendants. " :l. Were seed potatoes at (he date of this transaction goods of a description, which it was in the course of defendants

to supply?—" Yes." ■ •I. Weru llus seed potatoes reasonably fit for the purpose I'm' ivliicli llic.v wi'i'o Mild? -"No." . r i. Amount of damans?—",£Jo." Mi-. H. K. Evans who appeared in the absence of Mr. Myers, moved for jiidginenl for the plaintiff on (he verdict. His Honour entered judgment t'er plaintiff for -t.iO and costs, provisional on Mr. llorriwn bsiii? zimi >m opportunity to move for, non-suit w for judgment lor

the defendant. The question of wale of costs will also be argued when -Mr. .Myers is present.

FRAUDULENT APPLICATION

LAND TITLE CANCELLED,

A brief space of time only was occupied by -Mr. Justice Cooper in granting en application made by the Crown yesterday in regard to a block of land in the Bay of Islands district. The plaintiff in the action was his .Majesty the Kin.?, and the.defendants were the Public Trustee (as administrator of the estate of the late .Michael deem, farmer, of Kohukohu, Auckland), and the District Jiaud Registrar, Auckland. The Solicitor-General (Mr. J. W. Salinond) appeared for the Crown, and -Mr. J. W. Macdomtld for the Public 'lYuslir. but the District Land Registrar was not represented. The Crown alleged that on June 1, ISS3, Michael Creem signed an application en the prescribed form for a. grant of 50 acres of land to himself ami 30 acres to another person designated in the application as Cornelius Crecm. The application was made under the Land Act, 1577. and the land asked for was situate in the Okaihau No. 2 Block, Bay of Islands. The application was granted, and on October ]t, 1831, a certificate of litis was issued in lieu of Crown grant to Michael Creein and Cornelius Crecm for 100 acres allotment of Parish of Okaihau. Michael Creein died on September 23,1911, a nil the Public Trustee became his administrator. The Crown alleged that the person designated o.s Cornelius Creem was a fictitious person, who was never in existence, and that the name was fraudulently inserted in the application by Michael Creem for the purpose of gaining a grant of 100 aer.es, whereas had he applied in his ow.ii name only he would have been entitled to not more than 50 acres. The deceased in his lifetime applied to Ihe District Land Registrar to correct the title, at the same time making a full declaration explaining all the facts. Tin's declaration formed the evidence, iu support of flic Crown's case.

On this declaration judgment was given cancellation of the title. The Court having no power to protect the deceased's interest' in the 50 acres to which he was entitled, left the Public. Trustee to appeal to the clemency of tho ' Crown. "VERY REGRETTABLE." DISPUTE OVER GRAVE PLOT. "It is a very extraordinary kind of action, and the whole thing is very rcjnettablc." This' was Mr. Justice Cooper's comment on a civil case that came before him in the Supremo Court yesterday afternoon. A portion of tho burial ground in the Bolton Street cemetery was tho principal subject in 'dispute, and the action was brought by George Bolton, settler, of Wellington, against Martin Joseph Lee, railway guard, of Wellington, and Amy Louisa his wile, claiming an injunction to restrain the latter from further trespass, and £10 damages for alleged trespass. Mr. A. Gray appeared for the plaintiff, and Mr. T. C. A. Hislop for the defen- j dants.

Plaintiff set out in his statement of claim that he was the owner of a plot of land (141 ft. by bft.) in the Bolton Street cemetery, and that, on September 19,1910, tho defendants (without permission) had erected a tombstone or monument to the memory of Cecilia Ticehurst, who had previously been interred in the land, and tho surface of the land had been damaged ami certain plan's destroyed. Plaintiff asked for an injunction restraining tho defendants from continuing the trespass so committed, and £10 damages for such trespass, 'ami such other relief as the Court might consider necessary. Tho defence was a denial of trespass. Defendant alleged that the lands mentioned in the statement of claim was formally vested in the trustees of tho Church of England, hut, on or about July 28, 1891, ihe lands had becorao vested in tho Wellington City Corporation. It was further stated" that the deed of license had not been executed in accordance with the formalities required by the law, and that the plaintiff had never gained a renewal of the license, On February 3, 1910, defendant had obtained permission from the Citv Council to inter the body of Mrs. Ticehurst, and it was alleged that the tombstone had been erected with tho knowledge and consent of plaintiff. The action originally came before Mr. Justice Edwards in September last, and on that occasion his Honour remarked that it was a. "lamentable thing" that the case should have come before the Court. During that hearing it was announced that a settlement had been arrived at, and the case was not proceeded with.

Yesterday Mr. Gray informed Mr. Justice Cooper that plaintiff'had been compelled to bring the action again as tho the agreement of September last had not been carried out.

After two witnesses had been called in support of plaintiff's case, the further hearing was adjourned until 10.30 a.m. today.

AGREEMENT NOT TO COMPETE. CANNOT BE ENFORCED. Whether an agreement was in restraint of trade, or unreasonable, or too vague were questions that Mr. Justice Chapman decided in two cases in which reserved decision was- delivered by him in the Supreme Court yesterday morning. The plaintiff in both actions was George T. P. Williams, importer, carrying on business as tho New Zealand Distributing Company. The defendant in one case was Albert Edward Webb, importer, and in the other case Arthur Percival Masters, importer. As both cases bore on the saino question it was Agreed at the.hearing that they should be taken together. Mr. P. Levi appeared for Williams, Mr. A. Gray for Webb, and Mr. C. R. Dix for Masters.

In the statement of claim it was set out that Williams had purchased certain business from an Australian company, which traded under tho name of tho United Distributing Companies, Ltd., and which conducted a. speciality business. Webb and Masters had been employed by the United Distributing Companies, Ltd., and it was alleged that they signed an agreement that they would not (after severing their connection with the firm) carry oil for a period of twelve months any business which might be in competition with that of the United Distributing Companies, Ltd., whose New Zealand business had been taken over by Williams. Subsequently Webb and Masters carried on business in New Zealand, and sold a disinfectant instrument called "pynol." This, it was alleged, is almost identical with an instrument sold by the United Distributing .Companies Ltd., and later by Williams. In bringing these, actions Williams sought to have Webb and Masters restrained from selling the instrument in Now Zeuland.

In defence, Webb and Masters contended that they had been led to sign the agreement through misrepresentation. Further they declared that, they had objected to tho terms of the agreement, and it was agreed that it should not be binding upon them. Moreover, it was contended that the agreement was in restraint of trade, unreasonable, too vague and uncertain.

In the course of his judgment, his Honour said:—"Tho result of plaintiff's inquiries is that he has found the defendants working districts in the same way in which they had worked for him or the company when they were in his service. They have left the service by mutual agreement, but the plaintiff claims to enforce the covenant for twelve months after the termination of the service and 1 think lie has made out enough to show a breach it' he is in a position to enforce it. A persona! covenant such as that between the company and the employees is not enforceable by an assignee unless it is assigned as part of the goodwill of. a business. Then it is sold as part of such goodwill and the sale is notified to the covenant or it may bo that it is enforceable by the purchaser of the business. . . . The plaintiff is not, therefore, seeking to preserve or retain customers. He is socking to restrain the defendants from canvassing for the sale of lilies which compete with his commercial lines. That is a claim of u right to maintain a monopoly which cannot he enforced unless wills the assistance of the Patent Acts or some similar enactment. 1 assume that a man may bind himself by a covenant: such as this provided it is not too wide. 1 am not called upon to decide thai, but the assignment of I lie benefit of if so as to inako il enforceable in the hands nf an assignee is a thing not known lo our law ?av« in wmiectioa with the gopdwil! of a defined business, Wk«n th.s agreement

iiself comes to be considered (his becomes clearer.

"As to the covenant sued on it has evidently been prepared with care so as to make it as operative as possible. . . . There is no limit to the lines which Hie company might take tip and the system shows that the travellers do not in fact, know what it: lias taken up. It may not have pushed (he sale, indeed it. may have virtually allowed it to .■.lumber, but the employee is still bound. It is difficult to see how this can be reasonably- necessary for the protection of the company's business. Jt in tact lends to restrain the employee from taking service as a traveller. Even assuming that as to each State or Dominion the covenant may be read as narrowed to that state »<; is .sometimes found to be the case I think the same result ensues. Kn lines of-goods are speciiied and 1 hough the covenant is restricted to a reasonable time it remains virtually unrestricted as to subject matter. If it had been attached to a general merchant's or storekeeper's business if might have been verywide as the goodwill of such a. business is an entity known to the law, but it is attached to a business which I am unable to define though I have endeavoured to describe it. The covenant must be construed with reference to the position in which the parties stood when they entered into it and in this light it appears to me as vague and restrictive. A covenant in restraint of trade the limits of which iare open to be extended at the will of the covenantee during its continuance is iu effect a general covenant in restraint of trade within ths meaning of that case. 1 think therefore that this covenant is too wide and is unenforceable."

The motion was accordingly dismissed with costs in each case, ,£l2 125., and witnesses' expenses and disbursements to bo fixed by the Registrar.