LAW REPORTS.

Dominion, Volume 5, Issue 1524, 21 August 1912, Page 2

LAW REPORTS.

—,— LOWER COURT. (Before Mr. W. G. Uiddell, S.lf.) THE TENOR AND THE SOCIETY. j MR. NEWBURY WIN'S. "CAVATjLKR-IA IiUSTICAXA," AMD TJIJO PIN»I.\U A very interesting judgment in tlie caso botween I'liilip Newbury, musical artist, and tho Wellington Choral Society was delivered by Mr. W. G. Jfiddcll, .S.M., yesterday. ' Plaintiff Newbury's claim was for .£lO 10s., which, he said, wns tho balance of a feo due to him by tho society for professional services rendered by liim in connection with tho production of tho musical work known as "Cavallerin Itnsticana," ut Wellington on Juno 1, 101:!. Plaintiff, a professional lenor, had been engaged by tlie Choral Society to sing tho tenor solos in "Cavallcria liusticaua" for a feo of i! 5 guineas. The Engagement and the Utters That Passed. During the hearing of tho caso tho following letter was put into Court:— "Wellington, March 18, 1812. Mr. Philip Newbury, Tenor, ' "Auckland. Dear Sir,— "At a meeting of my commit- . tee, held on Friday evening, I men-. Honed that I had had un intcrvioiv with you regarding (.ho tenor solos in 'C'uvalleria Unsticann,' also stating that you were prepared to sing the solos for u fee ol 25 guineas. I was instructed to write to you, accepting your terms, and will let you know later on j\s to the date of the performance, etc. "Yours faithfully, "AW ]•!. Caldow, "Hon. Secretary." Ou -March 20 plaintilt' jNewbury" wrote to tho society's secretary staling (hat. ho was about lo go on tour, anil would like to know the exact. date of tho performance. The society's secretary replied in a letter datod April 1!!, stating that tho perform- J unco was to be held on Tuesday, .lime 1, and that tho iinal rehearsal would, take I place in the Town Hull on Juno 3, at | 8 p.m., when all the principals would be present. On May 20, plaintiff Now bury wrote to the secretary of the society as ' follows "Denr Mr. Caldow,— "Ton mentioned that you had. arranged a rehearsal for Friday, May 31. - That would suit better than Juno 3. 1 may stato that 1 liavo booked a lucrative engagement at Wanganui for .Tune 3. 1 shall be in Wellington resting from tho 28th, and am prepared to-attend any rehearsals you mav fix during that time. Wire your reply. "Yours faithfully, "Philip Newbury." Telegrams and Other Events. Tho society did not reply to this letter, and on May 2S Mr. Newbury telegraphed: "What day rehearsal this week?"Tho answer was: "Rehearsals Frid.iy and Monday." Owing to illness, plaintiff -was unablo to attend the rehearsal on Friday evening, and his engagement at Wnngnnui prevented his attendance at the final rehearsal on Monday. Plaintiff, however, without any rehearsal, sang at the performance on Juno i. What is the Usage in These Cases? The society contended that 11 •according to a usage well-known (and acted.upon in Wollington) the engagement" of a: soloist to perform at a choral concert implied, though not mentioned in the- contract,,, 'that . the soloist would attend ono rehearsal at least, and that his (plaintiff's) failure to attend ohe rehearsal constituted a breach of agreement by him. Because he had not attended any rehearsal, tho society rcdueed his fee from 25 guineas to . .15 guineas. On the subject of usage, his Worship said: "In this caso tho weight of evidence goss to show that thero is a recognised and well-known usage among professional and amateur solo singers in Wellington and other -parte of the Dominion to attend at least ono rehearsal prior to tho production of a musical work such as 'Cavalleria Rusticana/, and the evidence, also, shows that plaintiff Newbury knew of such a usage, or might have known of it had he taken tho pains to inquire. I think, therefore, that the contract entered into between tho parties carried with it an obligation on plaintiff's part to attend one rehearsal prior to the public performance of tho work intended to be presented. The necessity for . a rehearsal in such cases is so obvious that it is almost unnecessary to discuss it. One. of its objects is io .secure unanimity and' confidence among thfl' various performers. . . . Tho risk to the nrtist is, also, considerable. Beyond inconvenience caused to othe.r3 it might result in an indifferent performance, and be; followed by the loss of probable future engagements. In the present case, there is nothing to show that the performance suffered appreciably from plaintiff's failure to attend a rehearsal, and it seems to mo that his illness wns a sufficient excuse for absence on tho Friday night, while he had some time earlier notified defendants (the society) of his inability to attend on June '•!. "The Socicty Must Fail." ( "If, however, afterr being able to attend at the first rehearsal .it was his duty to have been present at the one. hj> 1(1 on June .1. what is the remedy op?i> to defendants for his breach of contract? , . . Defendants cannot penalise plaintiff in an arbitrary manner for his failure to attend a rehearsal per se. Their only remedy would bo by action for damages, and if this action is treated ,as including one for damages then defendants must fail, as no damage has been proved." Judgment was entered for plaintiff Newbury for ,£lO 10s. (the amount claimed), with costs .EG 18s. At the hearing of the cose, Mr. P. H. Putnam appeared> as counsel for plaintiff, and-'the Wellington Choral Society were represented by Mr. 11. H. Webb. SLIPSHOD.; BUSINESS METHODS. "ILLUSTBATIVE EXAMPLE.". Dr. M'Arthur, S.M., delivered judgment in tho.case-in. which .Walter Harry long sued Bertie Coleman Jacobs, for .i-lt ss. 3d., which, amount plaintiff alleged was due for work, journeys, and attendances performed for tlie defendant by tho plaintiff as a commission agent, in the salo of farm produce which belonged to tho defendant. The claim had been narrowed down to two items respecting both of which commission, was claiincd and liability disputed'. In tho course of his judgment tho magistrals said: "Considerable evidence wns callod to show.the custom of tho trade in transactions of the nature referred to in the statement of claim. This is an illustrative example of the class of cavs referred to a few days ago at Auckland by the learned Chief Justice, Sir B.obert Stout, wliero he pointed out the slipshod manner in which some mercantile men carry on their business. In the present case plaintiff and defendant were ennyin(? on a continuous business, and .vet tliey had no definite uritlerstandig as to what was to bo the mult, as.fnr as commission wa9 concerned, ill such common instances as if a buyer were to refuse to accept and in the ea=e of a re-salo. A distinct agreement on t he«o two simple point-i would have avoided tho lengthy .proceedings that, have taken place." "The evidence as lo Hie custom of (lie trado i-i conflicting," continued his Worship. "but in my opinion the weight of evidence is in favour of Hie 'defendant. T consider that, the plaint ill' ha- received all flint ho can legally claiiii." Judgment wns for plaintiff for .£2 Gs.. tho amount paid into Court.

BUILDER'S CLAIM. 'Arthur Thompson, builder. Wellington, sued Albert Edward Diraock, settler, \V«I- - fox ~2S 3s, Sd„ .which, wis ai-

lcgcd to be owing for work dono nnil materials supplied at defendant's properly which is situate on the turner of Aro .Street and Devon Street. The work was the renovation of a house. appeared for plaintin una 31r. A. b. Ment«ith for tho defendant. Considerable evidence wns heard by Dr. M'Arlhur, S.M., and tlio ease was'then adjourned till to-morrow. WAGES CLAIM. William Sloadman proceeded against Bacon's Aerated Water Company fur .L's ! 10s., as the balance of one. wroSVi wage.? in lien of notice. Mr. A. .1. Luke was counsel for (ho puii jit ill, mid Mr. Hollicnborg Toprp.cpnlod the defendant. _ Defendant paid lGs. into Court, and .imminent was given by Dr. M'Arlhur, h.M., lor plaintiff for that amount. JIUTT CASK. Dr. M'Arlhur, S.M., delivered jndgmrml: in favour of plaintiff in tho easo of Bnrlow .and Co.. Ltd., v. A. .1. .lugloy, a claim for .CBS ISs. for work done at two Aliedown properties. Mr. Bunny appeared for the plaintilT, and Mr. Wilson for the defendant. BAKERS' UNION CASE. Otto Hornig defended a ease in which the Bakers' bnioit sued him lor ,C 1 l!s. as payments in arrears. Mr. K. .1. rilzgiblnn represented the nnion, and t.he defendant conducted his ea.-e in person. Mr. Riddell, S.M., decided that defendant mu<>t pay the amount claimed. UNJ)KFJSX])BD CASKS. In the following ea v es jiulgment was entered for flit' plaintiffs by default:— Wellington City Council v. I'Yancis Cordon ll'azehvood, J;l (is. sd„ costs lis.; C. Sinitill, 1.1(1., v. Henry Smith, costs 18s.; the Wellington Traders' Agcncv (as assignees of Wilford and Levi) v. 'John M. Bridson, JIG lis. 2d., costs ,i!l ,Is. (Id.; 1 Villiiu Trustee (.eseoutor of the will of K, CI. Colt]iihomi) v. George Vornandos, ■CO 'Vs. 5(1., costs ,£1 4s, Gd.; Emily jfoso Gardiner v. Patrick .lames Moraii, .1:10 10s., costs ,I'f iris, fid.; Spencer Itudford v. Leslie Millett, ,£,'. l 125., costs lis.; hiiuo v, Aliens Archer, ,L"J os. !!d„ costs 55.; Nimo v. William I'almer, .CI lis., <osts 55.; same v. Spencer Check, .I's Ms. lid., costs Rs.; Wellington Operative Bakers' industrial' Union of .Workers v. Thomas Lock, ■CI 12s-. Oil., costs os.; \V. Dimock ami Co., 111 (1., v. A. 0. Davies, ,C 5 Ss. (id., costs ,U2 IDs. (id.; same v. Georgo T/i Japan!, .tin ITs. Oil., costs .fcl U.S. (id.; Tliomns Ballinger and Co., Ltd., v. Harry Hill, .1:01 l:k fc'd.. cost*. .01 10s.; .1. 'J'. Horn («s assignee cif Dr. M'Kvedy). Maurico Kolliuher, ,12 Is. Cd,, e.ost.s 125.; same v. Matthew William Donaldson. lis.', costs 10s.: Jnnson Bros. v. Peter Heyes, .til ss. fld„ costs .£1 !ls. Cd.; Margaret M'Corinick v. Harry Tunniclilfo, ,CS. costs 10s. j Robert Martin, Ltd., v. Huffy and Broii, .£25 ISs. lid., cosfs .t'2 Its.; same v. Frederick Butcher, .CI ss. fld., costs ss.;'same v. Herbert John Hay, .118 18s. fld., costs .CI ,Is. fid.; D.I.C. v. Henry Matthew Slowcll, .£1 25.,' costs 75.; William C. Stephens (receiver for Prouso Lumber,- Ltd., in liquidation) v. W. J. HoRUe, .C 5 19s. 10(1., costs Ks.; Rhimes and Co. v. E. J. Wiseman, .tl 12s. Cd., cosfs ss. . .JUDGMENT SUMMONS: William Henry Shepherd nas orders I to pay 'Walter Whiting .£11) 10s. Gd. in weekly instalments of ,10s. •' POLICE CASE. Before Mr. IV. (1. Riddell, S.M., Thomas O'Sullivan was fined 10s. lor insobriety, .