LAW REPORTS.

Dominion, Volume 5, Issue 1516, 12 August 1912, Page 2

LAW REPORTS.

—; * SUPREME COURT. '.(Before his Honour the Chief Justice.) HITCH IN BUYING BUSINESS. • BUYER'S APPEAL. GETTING HIS MONET BACK. A' rather interesting appeal case was decided before: the Chief Justice (Sir Robert Stout) on Saturday morning. The parties were Peter M'Call, saddler, of Wellington, appellant, and P. It. Russell and Co., Ltu,, leather merchants, of Wellington, respondents. Mr. A. i'air appeared for the appellant, while Air. P. J. U'ltegan appeared tor the respondents,* '.; iroiu tue case stated it appeared that 'M'Uui nuu agreed \wn Russe-i and Co. to puruuast) Ino sixjck, goouwiii, aim hxtures oi a curiam sauuiery business earned on Uj.l.'!.. S, i-etußncK, at itunuiraiio. Ho l/uid to ivubscii ana Co. tuo sum- ot .fctja ,os. M. Uuauuiug a p.n. lor aid lis. 2d.), uiis using me »uu\h ot tno putcuaat) ui-uuey, uu uviuji-jg lor pussoasiuu ut mo uuiiausj, Uninr, no iiuu iA:eu roiiutteu to oi,jii an to euipioy I'uuieriCii lu rue business lor twcivo luonuis, nut nuu reiiiseu to uo so, and, ivnen retiiencti s tmp.oyinout was m&isiteu on, wrote u.uiwijg to rescind tjiu agreement to pui-cuase tue business, and uemauuiiig a teiunu of ins money,' auu tne uuyu.uut ot uauiages. liusscii and Co. had uecnueu to witn tuoie ueiiianus, anu ji'Liau commenced an action In tne Magistiates Court at Wellington. ' in tins ucttou lie claimed iUoa Os. su., as reiujiu oi money paid, and ine sum ot £ : M as uumages. tuisseu and (Jo. louged a counter-eiatiu tor Mi 3s. lor dances lor ui-eacn ot contract. Tho magistrate Had neiU tnat mv Call had reuny agreed to employ .fetuericli, and Had oroiteii tnat agreement oy atterwat'ds reiusing to do so. Ho had also heid that M'Call could not recover any oi tne purcuase moiiey paid, and gave juugiuont tor Kussell and Co. on tne claim, with costs, and judgment also lor Kussoll and Co. on the counter-claim lor .£l9 35,, and costs Jt'l 75.-,. On a subsequent argument ot law points, however, Russell and Co. had abandoned the counter-claim, aud uad limited their claim merely to a retention of the purchase money paid by itrCaii for the business. M'Call thon decided to appeal to the Supreme Court. Mr. Fair pointed out to the Chief Jua tico that on the first judgment, tho respondents (Russell and Co.) had: (1) The stock, fixtures, and goodwill of the business! (2) the whole of the purchase money paid for them; and (3) tne sum of .£l9 3s. damages. On tho magistrate's finding of fact, M'Call had broken the contract, and this was not now questioned, but M'Call was, nevertheless, entitled to recover the purchase money, £85 6s. 2d., less'.£l9 ils damages suffered by Itussell and Co. After the first judgment had been given in the Magistrate's Court, M/Coll had never asked lor more than this.' His Honour said that it seemed a plain principlo of law that Russell and Co. could not keep the s'.oclc, fixtures, atid goodwill, and also retain the money paid tor them. At most, they wero only entitled to damages, and it appeared that H'Call did not dispute this. Mr. O'Regan pointed out that Russell and Co. had been willing to hand over the goods in accordance with the terms oi the agreement. , His Honour: How can you support the magistrate's judgment? ' , Mr. O'Regan: I am bound to admit the proposition that, in actions on contract, with the single exception of breach of promise cases, the measure of damages is the actual loss incurred. • His Honour: Quite so, and the damage whi6h you havei suffered is .£l9 .3s. , You are entitled to"tfi'at, and'the appellant is' entitled to a refund of the purchase money, less that amount. If counsel confer, the matter can be adjusted. After a conference, the following order was made:—Appeal allowed. Case to be remitted to the magistrate to enter judgment for M'Call on his claim for .£BS 6s. 2d. (refund of purchase money), with costs £7 ss. 6d.; and judgment for Russell and Co. on the counter-claim for £W 3s„ with costs and witnesses' expenses amounting to £9 15s. j„ .. „ ~. The appellant M Call was allowed the costs of appeal £h 55., and disbursements. DE RENZY CASE,

NON-SUIT POINTS DISMISSED. Tho Chief Justice (Sir Robert Stout), in a reserved decision delivered on Saturday morning, dismissed non-suit points that had been argued last week after having been reserved in a case heard at the last civil sessions of the Supreme Court. The cote involved a heavy claim for damages for alleged, breach of agreement in respect of tho New Zealand rights of ,a patent aerated water manufacturing, machine, known as tho Billows Patent Aerating Machine. The parties to the action were William de Renzy, agent, of■ Palmerston North, plaintiff, and Fraser Ramsay (New Zealand), Ltd., general agents, Wellington, defendants. The case came before'the Court in June last, when it appeared that in the month of January, 1911, the Fascina Manufacturing Company, of Melbourne (proprietors of tho patent rights of the Billows ■ Patent Aerating Machines), appointed Fraser Ramsay (New Zealand), Ltd., agents in New Zealand and Fiji for the sale of tho machines. On or about October 25, 1911, do Renzy, entered into an agreement with' Fraser Ramsay, by which they-appointed him sole agent :in New Zealand and Fiji for the'sale of tho machines for one year. Subsequently tho Fascina Maunfacturing Company, of Melbourne, refused, to recognise the agreement with' de Renzy,'and refused also to supply him with machines. Further they threatened .action against him to restrain him from dealing with such machines in Now Zealand. ; As a result of' this, dc Renzy brought.an ;aotion against Fraser Ramsay, claiming ',£O9BO damages for alleged loss of profit on the sale of the machines for .six years,' There was a second action—Spooner v. 'de : Renzy—depending on the main action, and heard at the same timo. • '.'

A special jury of twelve was empanelled to hear tho case, and after a lenrthy hearing de Renzy was awarded d£7oo damages and Spooner. .£2OO _ damages. ""■ The following non-suit points, which hnd heen Taised by Sir John Findlay for tho defence, were reserved for ergument: 1. That Clause 12 of the agreement (stating that the agreement with de Renzy was upon the 6ame terms and conditions as the agreement between the Fascina Co. and Fraser Ramsay) made the existence of do Renzy's agreement dependent upon the existence of the agreement with the Fascina Co. 2. That thero was nothing in tho -. agreement binding FTassr Ramsay to continue the Fascina agreement, and' that if they lost the agency, or gave it up. da Renzy had no right of action. 3. That nnder the agreement thero wos no obligation on the part of Fraser Ramsay (a) to supply machines and goods at all, or (b) to supply them for any fixed term. Mr. C. P. Skerrett, K.C., with Mr. 6. 'H. Fell, atipeared for do Renzv, while Sir John Findlay, K.C., with Mr. J. A. Trine, appeared for Fraser Ramsay (New Zealand), Ltd. After reviewing the argument adducod in support of the non-suit points, his Honour was of opinion that the motion must be dismissed with costs ;£lO 10s.

WRIT OF CERTIORARI. NATIVE LAND. RIGHTS-OF-WAY. (Before his Honour Mt. Justice Chapman). An important Native land case, affeoting titles arising from partition tinder the Native Lands Act, 1894, came before Mr. Justice Chapman in the Supremo Court last Monday, and his Honour delivered his reserved decision on Saturday morning. John Alexander Pearson, engineer, of Palmerston North, and Waikari Karaitiana, aboriginal Native, were plaintiffs in the action, while the Publio Trustee, Jessw Burridge (wife of S. V, Burridge/ farmer), ..of Petone, Walter Rawson, Judge of the Native. Land Court, and

the Registrar of the Native Land Court at Wanganui wero the defendants. At tho hearing, Mr. C. P. Skerrott, K.C., and Mr. E. F. Uadfield appeared for Pearson and W. Karaitiana; Sir John Findlay, K.C., and Mr. J. W. Macdouald for the Public Trustee; and Mr. M. Myers for Mrs. Burridge. The other parties submitted to judgment. It appeared that on January 19, 1911, Judge Kawson mado an order prodding that the subdivision of land, known as Rangipo Waiau B No. 7a should Iks subject to a private right-of-way thereon for tho purpose of access to and appurtenant to Rangipo Waiau B subdivision No. 7b. Plaintitts were now applying lor an order that a writ of 'certiorari ho issued to Jutlgo Rawson for tho purpose of removing this original order into tho Supreme Court. It was set out that on February 1, 1909, tho Native Appellate Court affirmed a partition order ot the Native Land Court, awarding Rangipo Waiau B, No. 7a. to Waikari Karaitmna, who on September 30, 1909, leased tho same to Mr. Pearson f«r 21 years, from May 1, 1909. This lease was confirmed by the Maori Land Board. The adjoining block, No. 7b, containing 73i acres, was at the same time awarded to Erueti Ara,ni (of whose will the Public Trustee was trustee), and ho subsequently leased to Mrs. Burridge. The land held by the Publio Trustee had no .means ot access to the roads, and on January 19,, 1911, he applied to Judge Rawson, under the Native Land • Acts, for the grant of a private road or right-of-way (50 links wide) over Waikari Karaitiaaa's land. This was granted, Waikari Karaitiana not appearing after receiving notice. Mr. Pearson related on evidence that he had no notice of the application, and that the grant of right-of-way would seriously depreciate value of the laud. The Public Trustee submitted evidence showing that his land would bo seriously prejudiced if the access was refused, and that the access granted was the only possible one, and ho had no notice of the existence of Mr. Pearson's lease. The question of want of jurisdiction arose through the repeal of the Native Land Act, 1891, and the enactment of the Native Lands Act,1909. The order granting the right-of-way was made on tho ground that, as the original partition was not completed by sealed order, and final survey plans, the original partition proceedings were still pending for the purposes of the 1909 Act, and tho Public Trustee had a right to apply within tho five years allowed by the 1894 Act.

In the course of his judgment, his Honour expressed the opinion that tho order of tho Native Land Court was made without jurisdiction. The motion for writ oi certiorari was therefore allowed, with £W> 10s. costs. Those costs wero not as against the Judge.

EDWIN WALKER, LEGATEE. HAS HE A VESTED INTEREST? An action to determine the construction of the .will of Alexander Henry Walker, gentleman, deceased, late of Auckland, came before Mr. Justice Chapman in tho Supreme Court on t\turday morning. The plaintiff in the action was the Public Trustee, while tho defendant was Edwyno, Walker, of Auckland, a son of the do-' ceased.

Mr. J. W. Macdonald appeared for tho Public Trustee, and Mr. A. W. Blair appeared for Edwyne Walker.

The deceased died while on a visit to St. Louis, in tho United States of America, on July 1, 1904, leaving a will dated August 16, 1899, and a codicil dated July 30, 1902. of the said will and codicil was granted to the Public Trusteo on September 2G, 1904. The deceased left surviving his widow, llnry Robinson Walker, and two sons, Alexander llowio Walker and Edwyne Walker. By tho will, after making provision for an annuity to his widow (which annuity was increased by an order mado under tho Testator's Family Maintenance Act, 1909), deceased directed the Public Trustee to stand possessed of the trust funds.upon trust to pay his son Edwyno Walker vfilOOO, upon his attaining the age of 20 years, and to hold tho balance upon trust to accumulate tho surplus income during the life of his wife, and upon her death to: hand over, assign, and transfer tho fund and all accumulated income to his son Edwyne. Tho latter attained the ago of 2G years, and the legacy was paid to him.

The will went on to "provide that "in case any child of mine shall predecease me, leaving issue, who shall survive' me and die before acquiring a vested interest under this will, leaving/issue,, snch issue shall take and if more than one equally between them the share to which his, her, or their parent would have been entitled under this my will had such parent survived me and acquired such vested interest." Edwyne Walker wished to deal with the Public Trustee on the assumption that he. had a present vested interest therein. The point was raised as to whether his interest was only contingent on his surviving his mother, the words of the gift to his children being equivalent to a gift to his children if he died before acquiring a vested interest in possession. By arrangement between the parties, the matter was taken before the Court, to determine whether— (a) The defendant Edwyno Walker takes a present vested interest in tho estate of the said Alexander Henry Walker, or (b) Whether his interest in the estate is only contingent on his surviving his mother (who is alive). Legal argument occupied the greater part of Saturday morning, his Honour reserving decision.

MAGISTRATE'S COURT.

, * (Before Mr. W. G. Riddell, S.M.) THE MAKING OF MARGARINE. NUISANCE OR NOT? THE DECISION OF THE COUHT. At the Magistrate's Court on Saturday, his Worship delivered judgment in the caso in which Robert Hall, a manufacturer of margarine, was charged with bavin? carried on an offensive trade (tallow melting). in Martin Street, Wellington. In the courso of the judgment, his Worship said that the main object of tallow melting works was to produce tallow, but the tallow melting by defendant was only'part of the process of the manufacture of margarine. The evidence of tho majority of the witnesses had shown clearly that no nuisance had been created. The tallow-melting trade referred to by tho Act had to be offensive, in fact, before it could be termed offensive, and not merely auxiliary to another trade authorised, by a different statute. Tho information was dismissed.

OTHER CASES. Norman John Pngh was sentenced to three weeks' imprisonment for having deserted from the steamer Paparoa. On a charge of his having stolen a cap, valued at Is., from Hoinrich Heinmann, John Burnett was convicted and ordered to appear for sentence when called on. Charles Enticott was deemed'to ho an Idle and disorderly person, and was sentenced to three months' imprisonment. For insobriety, Henry Knox, Charles Peterson, and Andrew Larscii were each lined 10s. Nora Nugent was fined £3 for Laving Lrofcen a prohibition order.