LAW REPORTS.

Dominion, Volume 5, Issue 1465, 13 June 1912, Page 3

LAW REPORTS.

SUPREME COURT. CLAIM FOR £9,980 DAMAGES. aerating machines. WHAT TFASTHE nature op the AGENCY AGREEMENT? A heavy claim for damages for alleged breach of agreement, in respect of the New Zealand rights of a patent aerated water manufacturing machine, is at present being heard in the Supremo Court before Ilia Chief Justice (Sir Robert Stout) and a special jury of twelve. The parties to tho action are: William d ? affont, of Palmerston North, plaintilt, and Fraser Ramsay (New Zealand), Ltd., general agents, Wellingtjn, defendants. r. JI T r f £'„ P ' Skerrett, IC.C., with Mr. (.t. H. l'oll, appeared for de Renzy, and .Sir John Findiay, K.C., with Mr. J. A. lripe, appeared for Fraser Ramsay (New Zealand), Ltd. Alleged Grounds for the, Claim. In the month of January, 1911, the lascina Manufacturing Company, of Melbourne (proprietors of the patent rights cf the Billows Patent Aerating Machines) appointed Fraser, liamsay (New Zealand), Ltd., agents in New Zealand and Fiji for the sale of the machines. On or about' October 25, 1011 (so it was set out in the statement of claim) de Renzy entered into ail agreement with Fraser Ramsav, by which _ they appointed him solo agent in New. Zealand and Fiji for the sale of the machines for one year. By tho terms of this agreement, de Renzy undertook to sell not less than 25 machines during the first year, and it was agreed that, if. lie did so, ihe agency should be extended for a further term of five years, or for so long (during that term of five years) as ho should sell 25 machines per annum. It was part of ihe agreement that Fraser Ramsay should not sell or be concerned in the New Zealand sale?, or in the sales of any machines or goods which might bo used m substitution for , or iii opposition to, the Billows machines, or any other goods referred to in tho agreement. Fraser Ramsay (it was alleged) assumed to have sole control in New Zealand and Fiji for a period of six years of the rights over these machines subject to the sale of 25 per annum, and further they asserted and warranted (expressedly and impliedly) that they had authority to dispose of such rights and to prevent other people froni dealing in the machines within limits and timo mentioned. Fraser Ramsay also stated to de Renzy that their agreement with him was upon the same terms as -the agreement between Fraser Ramsay and the Fascina Manufacturing Co. of Melbourne. Relying on this, de Renzy tpok over the whole of Fraser Ramsay's stock, connected with the agency, and paid them by certain promissory notes. De Renzy also entered into an agreement with one C. F. Spooner regarding the sale of the machines in the Wellington and Hawke's Bay districts. In tho month of November, 1911, difficulties arose in respect 'of tho supply of parts of the machines, and de Renzy, bdng unable to gain a satisfactory explanation in New Zealand, proceeded to Melbourne at his own expense to find out what was hampering his trade. On November 30, 1911, the Fascina Manufacturing Co. of Melbourne expressly declared that Fraser Ramsay had no authority to enter into the., agency agreement with do Renzy, as Fraser. Ramsay's original appointment had been for a period of 12 months from January : 12, 1911, with tho option of continuance for five years subject to a proper written agreement being entered into on terms to be arranged. The Fascina Manufacturing Co, of Melbourne, therefore refused to recognise the agreement with do Renzy and refused also to supply him with more machines. Further they threatened action against him to restrain him from dealing with such machines in Ivew Zealand. Particulars of Claim. De Renzy now said that Fraser Ramsay had committed breaches of the agreement of October, 1911, and in respect of such breachos he claimed 1 as follows:— 1. The sum of ,£9980 damages for alleged loss of profit on sales of the machines for six years. 2. ,£SOO general damages. S. An order for tho delivery to him of certain promissory notes amounting to .EGSO or an indemnity against any liability on them. 4. An indemnity for all damages that may be recovered against him by persons with whom he lias entered into contract in pursuance 'of the agreement with Fr-oser 'Ramsay. _ 5. An indemnity against any proceedings taken by the Fascina Manufacturing Co. of Melbourne, or by other persons claiming right title or interest in tho machines. The Defence, In defence, Fraser Ramsay, Ltd., admitted that thoy had entered into an igreeinent with de Renzy, but denied that it was on the terms alleged. They said they appointed de Rcnzy sole agent in New Zealand and Fiji for the sale of the machines for a year, subject to the conditions contained in the agreement af Ootobcr, 1911, and subject also to tho condition of Fraser Ramsay's obtaining in extension of tho term of the agency 'ranted to them by the Fascina Manufacturing Company, of Melbourne. Fraser Ramsay denied that, at the time of filtering into tho agreement with de Rcnzy, they were uuablo to carry it out but admitted that tlicy were now unlble to continue it as it had terminated (without default on their part) by reason of the failure of certain conditions. A general denial of the remainder of do Renz.v's statements was also node, there being several alternate defences. Another Action Mentioned. At the outset yesterday morning Sir lolin Findiay mentioned that there was mother action—Spooner v. de Renzy—in ivhicli Spooner claimed damages under similar circumstances. Fraser Ramsay New Zealand), Ltd., had been ioined as hird parting to this action. 'Sir John L'indlay stated , that it had been ar•angeil between, himself and Mr. Skerrett :hat the two actions lie heard together, ind to this cours-o Mr. C. J. A. Lcugliian, who was present and who appeared 'or Spooner, agreed; It was further explained bv Sir John Findiay that, if do Renzy failed against fraser Ramsay. .Spooner had a<rro?<l not :o take any action against de Renzv. ' Mr. Loughnan said his client's uiider:aking did not amount to discontinuance [t meant that if de Ronzy failed in the ire.sent action, Snooncr would not go for laniagrs, but only for costs. Opening and Evidence. Mr. SXerrett opened at considerable 3iigl:h, referring to the terms of the igreement between the parties and to cerain correspondence relating to the agreement. Counsel contended that one of he clauses of the agreement amounted o a warranty that the agreement was 111 tho same terms as the ono between •reiser Ramsay (N.Z.). Ltd., and the •ascina Manufacturing Company, of Mellourne. The whole point would bo rhether the terms of this latter agreenent were communicated to de Renzy by dr. Slack, of Fraser Ramsay (N.Z.i, jtd. ■ Lengthy evidence is being called, and here were still several witnesses for the ilaintilf to bo called nt 5 o'clock ln«t veiling, when the Court adjourned until 0 o'clock this morning.

MAGISTRATE'S COURT-

(Before Mr. W, G. Riddel], S.M.) IRATE RELATION. BROKEN GLASS, MISSILES & AXE. "YOU HEADY TO DIE?" Somewhat nniisiinl wns the recital made at the Magistrate's ,Cnnrt yesterday, wh?n William Ellis was (.harmed will/ having afsaultod his stepfather, Hnnry Kelly, so a; to catiw him borlilv harm. He was defended hy Mr. T. M. Wilforri. Henry Kelly, who resides at 7o M'Alpiue Aysnu.s, stated that Ellis ivas a stepsou

of lus, and that they, both liyed in 'he same house. When he'Xsrituo^ on the evening of Jui;« 1, lie had heard some grumbling. He:.-;prqc^ededy : /to the room where till is and. others;- irere; 'aiidasked what was tho inattor.. Kllis liad thereupon invited liim out.sido,. and. ha.d. also asked him if lio'tvas "looking uir anytliing." Both went oiitsidc, nnu Ellisthen broke one window, and threatened to break all tho windows, in thc> liouw. '.Seeing how things werefllve- liad then stood 011 guard-with the door IwlUd, and had refused to n.llovr Kllis fo ciitcr; Continuing his evidenc?, Ko!lv -said.?: "Then 110 hit me hi t.iie eye with siiiiiothing—l don't know wha't.' lie askf-d n.i«again if I would let him 111. and I ?aid 'So.' Then he .?>i ' 'Are yon ready to dior' he a.-k(-il. 1.-di'dii't' reply. He got the ake, linil throateiii'd. to hit me through the'v.-ind'ow; hii-ide whiels I was then standing,rarid-.then. he thrc*v tho axe through the window, lie folhnn'd this up by throwing ' lumps:'.'' of cr-al through, and one of tiiem i-truek mc over the eye. . . . lie .was dvi.m.k at (lie time. Ho is quite a\ditfereht; man when, he is sober." Kelly added that he had subsequently' been attended by a doctor; wlio stitched ono of his wounds.-. „ Ambrose Kelly, a .fMirteen-year.-.oid. :step.brother of Ellis, deposed that when his father had come • l.'pham was in tlio front-room trying to sing. "Of course, he couldn't -sing at nil,'' added the youthful witness "and I was playing . away at the piano." Ellis, continued the witnejs. was : not sober. His father had jnit liim (K!h>) ' nut, and durinst tho scene which i'oilowt-d his father hail pok'od- :' at Kllis . the window with a window-blind roller. Ellis had said: "If you will-give mo my tobacco I will keep quiet, even th'q'-igl.v-you have locked me' out." ,-;The luihp of coal productd iu Court (a. piece about fcur ' inches square by a couple" of. inches dee])) was tho ono with which Ellis had struck his father. ' , '. ...;. . Mr. AVilford: You were playing at the piano when your father came home? . Witness: Yes. . ' And a man named: Cpham was trying to sing?—" Yes." v-. He could not sing. o.'all*?—"No," And his singing QuVtifV hmff .ajflo'oy# ] your brother?—"\es." \ Your-brother has;: a. musical eai ?— . "Yes." . When your father came.:lionie he in?, vited yonr brother out' to ..tight?-~"Y:;.f." Mr. Wilford had -asked: -auo.thcr qjiestion, and tho witness, was 'answering itj. when the father mads some remark. ~ . ■ Mr. Wilford: He is trying to intirii'!.- ■. date his sou from over there, vo;.ir Wor- ■ ■ ship. --. _ . >■' His Worship (to Kelly)-.:. You-' mu.st k.ee.p .; quiet. Mr. Wilford: I will have to ;-;«t that policeman over there to Ihok -after, him. Sub-Inspector Sheehan: It is the other ; way about; the j.nT ! tiniidated ever since tha case lias uccurrcd. ' ".■.... Mr. Wilford: Is 'tli'at; .w.'h'j .lie '.want's : to withdraw the ease?"'' ... His Worship: You need not argue the matter. .' J"'•;'..''Ellis pleaded not guilty,, anil ■ he was -. committed to the Supreme Court for trial:.-' ISaiJ (4260) was allowed... TIIAIXMAX'S FOLLY. ' ,' . James Anthony Dohertv appeared for sentence on a charge, of., tho theft of a Gladstone bag and its ..contents,. Valued at X' 6, belonging to James -11. ilorr-an, of Te Kuiti. Mr. A. H. Hindmarsh, -who appeared for Dohertv, stated that : his client was a married man two children.. He submitted that the case was. oiie in which ' tho Court should extend l .il'enien'cy'.- . This ■ was the first time that Hoherty had been'. in trouble. -V^U"';'.---'-Chief-Detcctive Broberg stated that on ! May 22 Mr. Morgan :Lad Jtrayelled: by tho express train from Au't-klahd to Te lvui.tr, ' and had forgotten to? tnkn -iiis bag off ■ the train. When the-, train, arrivsil at Wellington, Dohertv; who was. a;t attend-. ■ ant, had handed tho. bag. -to one cf tho officials at Thorudpn. Station, :say.- ; ; ing: "This is my bag.' Will you keep it for me till I rcturn.' to . Auekia.nd;?'' \' Accuscd bad subsequently y'itakeii;. the;bag to his home -in -Aiickiaiid, Si;d had brought back to Wellington three, silver ornaments. I-'roni these he had had. : Jtorgan's initials craseH; ■ engraved instead. \\'h'en questioned by the railwny authorities;- -Dptiferty'-' had -ail., mitted the theft. All the property .had,:., been recovered, Bnt the silver . had been damaged to the extent oi 10s. ■ Doherty was convicted.''aiid-:'fiiie'd..#-2r OTITEK- CASES. . Alexander Robert M for having disobeyed-»<imjMnie.hjiicji. o'jdci:': which had boon mado .by the Court in favour of his wife. ;He:! : w;asf.also; ordered; to pay solicitor's feejjJ&.t ls\ applie'd to have the anio\mt-of the crdcr reduced, and his Worship, altered, the sum payable-each week froiiv.iiosv to; :13sv.. Mi 1 ,- C. W. Neilson appeared "for defendant, and Mr. E. C. I^vv-ey^fpr'V:Jft's'C...iT.phiisbn-. William John Wadejand Ilenrv Kilgour': were charged with having "stolen- a 'Glhd--stone bag, about eightVfsn.ir.tsi-.a.bpiit fivesinglets, four pairs of u.nder-garmcnts, o.r.e pair of Ijoots, and 'valued at-- .' £!, belonging to William-PeVcy Wallat-'e. Wade pleaded guilty," and Kilgom 'plead- ■ ed not guilty. BothiSwerSTenianded-; to-morrow in crder that;-i'fiirtlfeti"-inqjvirios '-. may be made by the-'police.':':-'-'■ " ' Oscar Devenish was ;hried:vai3 : for having. committed a certain act. :.. Leonard Muir wasV:committc'd to: : t-he Supreme Court for ti-ial oii -a; chariot having assaulted a girl'.. ..3[uir rese'r'ye'ii' ■ his defence, and pleaded not guiity.' H6 ■ was represented by Mr. A. L. Heruuian.