SUPREME COURT.

Dominion, Volume 6, Issue 1792, 3 July 1913, Page 5

SUPREME COURT.

ISLAND TRADER & U.S.S. CO,

FRUIT. NOT LOADED,

IMMUNITY OF MAIL BOATS,

Merchants and shipping companies will ,no doubt be much interested in a reserved judgment delivered in the Supremo Court yesterday by his Honour the Chief Justice (Sir Robert Stout). The action was ono in which evidence had" been taken in December last, before a common jury of twelve. . The litigation arose on account of the fact that a quantity of fruit had not been loaded at Rarotonga on a certain voyage of the>Maitai from San Francisco 1 to Wellington. The plaintiffs in the action are Carl Kohn, trader, of Rarotonga, and a number of New Zealand produco merchants, for whom liohn ships fruit. The defendants are the Union .Steam Ship Compauy, Ltd., owners of the Maitai. At the hearing, Mr. C. B. Morison, K.C., witli him Mr. A. Fair, appeared for Kohn and- the other plaintiffs; /Sir John Findlay, K.C., with him Mr. P. Levi, appeared for the Union Steam Ship Company. Features of the Case. When the case was before the Court in December;, it was stated that on February 21, 1912, Kohu delivered fruit* for conveyance to '&ew Zealand; The delivery was made .one. clear day before the date onHvhich's.s. M-aitai■ was announced, to sail. The-Union'Company failed to load some of' the fruit, and failed' to'effect delivery within a' reasonable, time. By reason of . this, Kohn and others suffered damage amounting to >£1022 95., and they sued to rccover this' amount. As an alternative cause of. action, Kohn'and others alleged that the Union Steam Ship Company had contracted to carry the fruit by tho Maitai, 'and' had issued "shipping notes in respect of this contract., The steamer, - because of her unseaworthiness (it was alleged), failed .to keep, her timetable, and was'uriable to fulfil the.terms of the contract.,., .. By way of defence, the Union Company denied liability and maintained that tho loading of the'fruit- depended on their being able to keep the terms of the mail contract. They also maintained that they had made-, all reasonable efforts to load the. fruit in,face.of adverse weather. ,At the conclusion-of tho orignial hearing it was agreed tjiat the only question to l*e submitted to-the. jury, should bo that of the amount of damage suffered by .the. plaintiff.' ...The ..jury,, alter, a. retirement, of. half , an hour, found 'that 'the allowance in respect of the damaged fruit should be Is..'Oil. per case, or a total of ■ lis. Evidence was subsequently "called IOU other' 1 questions, involved, .ah'u argument took place/ 'Decision by Chief Justice, ■ In the course of his. judgment yesterday, the Chief Justice held that, "in the absence of express warranty,' ho'warranty was to be implied as to the taking of the •fruit on board on the advertised date (or .as soon after as tho weather' permitted). "It was well known," said his ;Honour, "that 'the steamer .was'a Royol Mail 'steamer—she was so 'advertised on the notice board—and that the requirements -of.the, mail.iservice.,:did - not., per- . riiit of spending an' indefinite : time at the port of call, 1 or to'return''to port-after she had been/driven -away by- bad,weather. The conditions as to.the receipt of goods expressly stated that the requirements of the mail • service -were to be an exception. . ... It is no doubt a hard case for the plaintiffs (continued his 'Honour), but if they intend' to make .the company liable in - futuro cases, there will have to 1 bS ; either; an. alteration in: the Mail contract or else some express statement to make the company liable if their steamers are, from any cause, ,late or unable to receive on board the goods offered.', In my. opinion, judgment must. be 'for the defendant company, with costs according to scale, second* counsel eight guineas per day, 15 guineas for second day, witnesses' expenses and disbursements." CONTRACTORS' CLAIM. A civil claim that has been before the Supreme Court for some considerable time was finally decided yesterday, morning by his Honour the Chief Justice (Sir Robert Stout). The action arose in regard to a contract for the erection of a dwellinghouse in Hastings, Hawke's Bay. Plaintiffs in the action were J. and A. Wilson, contractors, of Wellington. Defendant was Charles James Stanton Harcourt, land and estate ageut, of Wellington. Mr. A. Gray, K.C., with Mr. I). S. Smith, appeared for J. and A. Wilson, while MrA. W. Blair appeared for the defendant.. 1 Litigation in connection with the matter, extended back to 1911, when the claim', was first set down. From what was alleged in the statement of claim, it: appeared that.J. and A. Wilson had entered into a contract with defendant for the erection of 'a dwelling-house at Hastings at a contract price, of They claimed ..that in audition to the contract price they we're entitled to the sum of £%il 14s. lid. for extra works carried out, Je3s for preparing design, etc., and .£3 3s. for inspection. Defendant (Harcourt) had paid the sum of i! 1385 lis. 10d„ but the sum. of iE4Oi 3s. id. was'still due, and for this plaintiffs (Wilsons) now sued. In the original defence it was urged that Harcourt had not dealt with Wilsons as principal,' but in a special case, argued before the Supreme Court in December, 1911, it was held that he was liable as principal. Tho action was still defended on the grpuiid that the contract was .not completed as a whole, and, evidence .on both sides was. heard in .Wellington last month. • In a considered judgment delivered yesterday, his Honour found for the plaintiffs (J. and A. Wilson) for .£360 2s. 10d„ with costs according to scale. Plaintiffs were also allowed 10 guineas per day for five -extra days, 5 guineas per day for second counsel, ■ and ■ witnesses' expenses and' disbursements.. ' > COMMERCIAL HOTEL BLOCK. ■ A i summons to strike out an amended statement .of claim in the case of Gilmer andianother v. M'Ardle and others was dismissed in. the Supreme' Court yesterday by his Honour tho Chief Justice (Sir Robert Stout). The action had. to do with certain city properties (including the Commercial Hotel block), in which the plaintiffs (Hamilton, Gilmer and.Allen ; Maguirej are jointly as tenants in common, knd in which the defendants (Mary Ann M'Ardle, J. O'Kane, and C. P. Skerrett) also have, a joint interest. The; questi<ins ; in-dispute between • the ".par-, ties were two: (l) Ought the land held by the parties (as tenants in common or as partners) to be sold?, (2) Ought tho partnership, to bo dissolved and the accounts takeni* " ' - , - . To the original claim the defendants filed a defence, and also a counter-claim, while the plaintiffs, after filing a defence to the counter-claim, filed an amended statement of claim.,; It was this latter document that the defendants (M Ardle and others) asked should be struck out, on tho ground that it contained trcsh causes of action in addition to those'in. tho statoment of claim originally filed. His Honour, however, was of opinion.that all that was stated in the amended statement of claim would have been admissiblo in evidence under the pleadings, ns tliey stood before the amended statement of claim was filed, and therefore the summons was dismissed with three guineas costs. . Mr. A. Fair appeared in support of the summorfs, while Sir, John Findlay, Iv.C., opposed it on behalf of, the plaintiffs.