SUPREME COURT.

Dominion, Volume 5, Issue 1518, 14 August 1912, Page 2

SUPREME COURT.

(Before liis Honour Mr. Justice Edwards.) "WORDS" AT THB FRUIT HART. WAS HE SLANDERED? AUCTIONEER SUED FOR £501Tho civil'sessions of (he Supreme Court wero resumed beioro Mr. Justice Edwards yesterday, when an action claiming >£'>01 damages for alleged slander was partly heard. A common jury of twelve was called for tho hearing, Mr. W. Wolland 'being chosen as foreman. * Tho parties to. tho action wore Thomas Hood, fruiterer; of Wellington, plaintiff, and Griffiths and 1 C0.,-Ltd., auclioneers andgeneriil merchants,' of Wellington, and John Braid, auctioneer, of Wellington, defendants. .Sir John Fiiidlay, K.C., with him Mr. 1). M. h'indlay, appeared for Hood, whiio Mi-. C. I'. ~!si;crreu, K.C., with him .Mr. J. l'itzgibuon, appeared for tho defendants. Alleged Dialogue at tho Mart. lii tho statement of claim it was set out that on .November 21, 1911, Braid,,acting in tho course of his employment, and on behalf of his employers (u'nihihs .mil Co.), falsely and maliciously made certain statements in regard to Hood. Tho words complained of wero spoken in a crowded auctiou mart, and, in reply to Questions by Hood, who was a bidder for (foods being sold at auction. The dialogue alleged was as follows'; — Hood: 'Who was tho las! bidder? ! Braid: Mind your own business. Hood: That is my business. Braid: Well, if it is your business, it is the iirst business you over had. Anyhow, it is 110 use us taking your bid. Tho chances are you won't clear your stuff. ' Howl: Can you prove I never clear my staff? Braid; Our books prove that you nover pay for your stuff. We havo the rauic opinion of you as your association has (meaning tho Ru'.ailcrs' Association). Hood alleged that Braid's meaning was that he (Hood) was guilty of fraudulent, corrupt, and dishonest practices in his trade; that lvj was uafinaneial; that ho purchased goods, and never paid for them; that tbo books of Griffiths nnd Co. conmined records showing that Hood did not pay for tho goods which lis purchased from, them; and that ho (Hood) Was of ill repute among business jwople. Jn'conMquftnct ol Braid's actions and words, Hood had been injured iu his credit and reputation as a frui;erer,.and in his business, and ho therefore claimed tho • sum of ot'oOl as damages. The Other Side's Denials. For tho defonco it was denied that Braid spoke and ' published tho words complained of on November 21, 1911, or at any other time. It wns further denied that tho words had the meaning attributed to them, or that they wero spoken in tho course of business, or falsely, or maliciously. If the words aro proved to havo been spoken by Braid, then the defendants contended they were -caused and incitcd by Hood's improper, mischievous, - and provoking demeanour towards Braid. Further, the words ' were privileged, and uttered by Braid in tho honest protection "of his business,\ without malico and in good faith. Moreover tho words wero true in substance and in fact, as Hood had repeatedly purchased goods-from defendants and from other ■auctioneers and had failed to pay for them, theso having necessarily to bo resold. '

J If it Happened, What Didyt all Mean? Sir John Findlay, in opening tho case, ■ declared that the attack on Hood was not the result-of a petty quarrel. There was iu existence a Fruit-brokers' Assoi ciation, or combination, and Hood was responsible for. establishing an opposing organisation, known ' as tho Retailers' [ Association. Counsel proposed to show | that tho affair was tho outcome of a , deliberate attempt to crush the organiser • of tho opposing association. I Mr. Skerrett objected to counsel introducing this phase of tho question. 110 , was addressing tho jury on matters not , relevant. His Honour remarked that if tho two matters could. bo connected the opening was admissible. Sir John Findlay contended that the existence of a ring or combination was relevant, since it (ended to show malice. Counsel indicated that he would call evidence to prove all that was outlined in his opening! Mr. Skerrett dryly asked that Sir John Findlay's undertaking be noted. Hia Honour: It is rather unusual, but ; if I am to tako this note, I must have It explicitly. Sir John Findlay hereupon retorted , that ho would not have adopted such dn , unusual course if Mr. Skerrett had given a like undertaking. His Honour ended the matter by st.iti ing that ho had taken a note that Sir John Findlay had "undertaken to make his opening relevant." Continuing his reference to tho Fruitbrokers' Association, Sir John Findlay said that Griffiths and Co. was one of the five members of the combination who had bound themselves to keep no prices under a penally of .£IOO. Plaintiff had formed the Retailers' Association for tho purpose of breaking up the monopoly. Ho would stale in evidence that ever since that time the attitude of members of the staff of Griffiths and Co. had been hostile He had been ordered away from the mart and even threatened with tho police. Those were the lac's on which he (Sir John Findlay) relied (o snow that tho trouble under notice was duo to bad feeling, Referring to the defence set up, Sir John Findlay said (hat not only was plaintiff charged with not paying his 'debts to Griffiths and Co., but ha was also charged with not nayI'lff his debts to two other firms, who, it would be shown, were members of the ring. Counsel went on to refer in'detail to the defences set up. He concluded by saying that tho affair at tho auction mart was a display of a feeling of aninms, which tho members of the ring felt against a man, who was trying his best to break up a monopoly. The whole notion amounted to concerted efforts on the mrfc of members of tho ring to crush tins sniall man who happened to lead an organisation a.eamst their monopoly. fiie first witness called by Sir' John rindlay was tbo plaintiff, Thomas Hood, who was jii tha witness-box for over three hmirs. Evidence in support of the plaintin s cose was aI«o giren by E. W Fre*lftan, fruiterer; Donald M'Donald, board-lntrhoiise-keeper; George H. Gray, formerly secretary of the Ketail Fruiterers' A?-ocianon; and AlJjort Shaw, fruiterer, t Durin<? tho hearing of the evidence, Mr. Mcerrett made frequent objections, which his nowmr noted. One witnesv. in speaking of the Fruitbrokers Association, said , that tho five members of it were; Townsend and Paul, Thomas and C 0... Thomson Bros.. Laorv an'l Co., and Griffiths and Co. Thwe were still two witnesses to be called for the plaintiff when the Court adjournal until 10.30 a.m. to-day. LOCAL BODIES. AYIIEN THEY MAY BORROW. A question of interest to Municipal Corporations was dccidod by Mr. Justice Sim, a. reserved decision delivered in tho Supremo Court yesterday morning. The parties were the Napier Borough Council, plaintiff, and the Australian Mutual Provident Society, defendant. At the hearing Mr. J. H. G. Murdoch, of Napier, appeared for -tho Borough Council, while Mr, C. P. Skerrett, ICC,, with him Mt. ; A. de B. Brandon, junr., appeared for tne A.M.P. Soeietv. The Solicitor-General (Mr, J. W. Salmond) olso appeared. It was set out in the affidavits tlmt the 1 financial veer of the Napier Borough Council ends on the thirtv-first day of , March each year, and on March .11, 1.010, tho overdraft on tho district fund no- 1 count frith the Bank of New' Zealand was , .-£15,581 Ss. J Id. This overdraft was carried forward to the debit of the account for the ensuing year, and since then tho i overdraft has never been, discharged, but on tho contrary has been Increasing, and ' nov.' stands at .£17,763 13s, lid, The Bnr- j ough Co.uacil is uo\t desirous of raisins a i

special loan to clear oIT the overdraft, a's it existed on March 111, 19,10, and the A.M.P., Society is willing to advance the sum of lid., provided (Imt, Section 16 of the Municipal Corporations Amendment Act, 1010, gives (lie Borough Council power to borrow. for Hid purpose. Tho question for the Court to decide was: Whether such power is given by f.lio Act notwithstanding the tact that tho district fund account lias been operuted upon sinco that date, and t.hat tho overdraft is now greater than it was on March 31, 1010. His Honour hold that Section 1(1 of tho Act gives (he council power io raise a Special loan tor tho purpose of paving olf the overdraft as it existed on March 31, 1010, provided that no other specjal loan had been raised for the purpose, and provided also that the overdraft had not. at any date subsequent to .March 31, 1010, i been less than .C!S,oS-l Bs. lid. Tl<f>so ! points wore not clear from the affidavits, and in order to enable another affidavit to be filed to set out tho position more clearly, the case was adjourned until Tuesday next. If the affidavit is satisfactory, the Court will make an order stating that tho Act gives Iho council the necessary power to raise tho loan.