SUPREME COURT.

Dominion, Volume 5, Issue 1627, 19 December 1912, Page 6

SUPREME COURT.

A CLAIM IX)E DAMAGES. FLOOD IN A STABLE. Whether' or not a deposit of earth against a stable wall constituted a trespass or ft nuisance was the question involved in a civil action in which reserved decision was delivered by Mr. Justice Sim in the Supreme Court yesterday. I he parties were Hairy Bennett Kennerley. settler, of Wellington, plaintiff, and Louisa Jane Seddon, widow, of. Wellington, defendant. Mr E K. Kirkcaldie appeared for the plaintiff, while Mr. D. M. Findlay appeared for the defendant. In the statement of claim it was set out that Kennerley, since June 25, IRto, had been, the owner of two adjoining sections of "loud in Molesworth Street, and had erected a stable thereon. Mrs. beddon- was the owner of the property at the rear of these sections. She, or her predecessors in titles, had deposited large quantities of earth, etc., against the.wall of Kennerley V stable, and had raised the surfao? of her land above the natural level. She hud used the western portion of the wall of the stable as a retaining trail (it was. alleged), and had caused "rent weight to bi> thrown against it. This had-weakened the strncture,'causing it to leak and admit water. Moreover, tie embankment collected water and.

diverted it from Mrs. Seddon's lniul to the land of tho plailitilf. As « result of this, the western portion of tho stable had been flooded in July, 1807, soon alter the earth had been deposited, in July, 1911, in July, 1912, nnd on several occasious between July, 1807, and July, 19 1. Kenuerley claimed tliat in depositing tins earth ogainst his stable wail, Mrs. Sedaon or her predecessors in title had wen guilty of a trespass, or, in the alternative, a. nuisance. Ho therefore sued for i! 25 as damages, and asked the Court to grant an injunction restraining the defendant (Mrs. Seddon) from continuing tho ultegxi trespass or nuisance.' By way of defence, Mrs. Seddon furnished a general denial to tho allegations in the statement of claim. If earth lnul been deposited agninst the wall of the stable,. then, she snid, this hud been acquiesced in by luMinprley. In the course of his judgment, his . Honour held that tho plaintiff .(Kemierloy) had failed lo provi) that the embankment had boon responsible for the flooding of the stable. There could'bo no , doubt, however, that tho throwing of tho earth against the wall of. the stable had been responsible for si certain amount of dampness. On this ground plaintiff would b« allowed £5 tlaniaßos, in lion of an injunction, but as ho had only proved this small part of his case uo costs would bo allowed.

DEAL IN POTATOES. JURY'S VERDICT AND 'AFTKR, A jury's verdict was upset by a decision delivered in the Supremo Court yesterday by Mr. Justice Chapman. Tho decision was in connection* with-a motion for nonsuit in the caso in which Wesley Knight, farmer, of Otnki, proceeded against Samuel Smart Mason, fnriner, of Lower Hutt, nnd Thomas Mason, farmer, of Manakau, to recover the sum of J.'225 as damages for alleged breach of warranty. The action arose out.of a deal in seed potatoes, Knight pnrohasing 10 ions from the Masons at £S per ton. The Masons (it was alleged) expressly wamxnled that the potatoes wore not blind." but tho greater proportion of them subsequently proved to bo "blind," and wero 'consequently not productive. Ileiics tho clnim for damages. Express warranty was ik>nied by the Masons, who said that the potatoes were good, sound, and fit for eeed. But the jury brought in a verdict in favour of Knight, and awarded him £50 damages. His Honour' entered judgment for Knight for «£SO and costs, provisional on defendants being given an opportunity to move for nonsuit or for judgment for defendants. The question of costs was also reserved.

In accordance with this leave, the defendants (Masons) subsequently moved for (1) nonsuit; or (2) a new trial; or (3) judgment for defendants. Mr. C. B. Morison, K.C., appeared in support of the motion, while Mr. M. Myers oriposed it on- behalf of the plaintiff (Knight). His Honour held that as there had been no visible defect in the potatoes there could be no suggestion of fraud in the selection or- delivery. The potatoes had been bought from farmers by a skilled dealer, who did not rely on the skill' and judgment of'the defendants (Mnsons). Even had the plaintiff (Knight) relied on Hie skill and judgment of the defendants, his Honour would, still have had to say that the sale of potatoes was .not in the ordinary course of the defendant's business as farmers. Judgment would therefore be for the defendants (Masons) with costs as per scale, and witnesses' expenses, disbursements, etc.

HAND-HADE WRITING-PAPER. THREE HUNDRED BOXES.; Three hundred boxes oj hand-made writing-paper, which it was said were sold and not delivered, formed the subject of a civil claim in the Magistrate's Court some weeks ago, and on Monday last the matter w£s re-opened in the Supreme Court before Mr. Justice Sim, by way of an appeal from the magistrate's decision. Judgment, on the;.appeal was delivered yesterday Ynoruiiig. The appellants were Whitcombe and Tombs, Ltd., of Wellington, and .the respondent was George Lincoln' Cole, of Carterton. . ; Mr. T. Neave appeared for Whitcombe and Tombs, while Mr. T. E. Maunscll, of Carterton, appeared for Cole. In the original action in the' Court below, G. L. Cole, bookseller, Carterton, claimed J26 55., .as damages for 800 boxes of hand-made writing-papor which, it was said, Whitcombo and Tombs, of Wellington, had agreed to forward to the plaintiff, but had not done , so. It appeared that Cole visited Whitcombe and-Tombs's bulk etorft in Feathorston Street when stock salvaged from the fire was being sorted and priced. Assistants had been instructed to make no sales before the advertised date of the salvage sale, and the doors were kept closed to the genojv.l public. Cole, however, saw' one of the firm's travellers (Beayis), who showed him the paper' in question, and who made the sale. Whitcombe and Tombs said that Beavis was not-authorised to make the sale, but tho magistrate gave judgment for Cole for £15 and costs.

It was from this decision that Whitcombe, and Tombs appealed, on the ground that it'was erroneous in law.

His Honour held that the magistrate was justified in awarding damages, as lie had done, and the appeal was therefore dismissed with five guineas costs.

STAY OF PROCEEDINGS. Mr. Justice Sim yesterday granted a stay of proceedings in the case of Pitcher and others v. Dimock and others, an action regarding land transactions at Silverstream. Judgment was given on June 7, 1912, and as plaintiffs now desire leave to appeal, the question has arisen as to whether right of appeal lies at this date. Mr. Justice Sim considers tho question is one for the Court of Appeal, and in the meantime he-has granted a stay on certain, conditions. Mr. C. B. Morison, K.C.] appeared yesterday for Pitcher, while Mr. A. A. Stuart Mentcath appeared for Dimock.