SUPREME COURT.

Dominion, Volume 6, Issue 1849, 8 September 1913, Page 3

SUPREME COURT.

. MORE ABOUT THE KEMP STATUE. FINDING SET ASIDE. ORDER MADE FOR A NEW TRIAL. On Saturday liis Honour Mr. Justice Chapman delivered judgment respecting the motion for a now trial in tho case of l«'rank Harris and Co., Ltd. (in liquidation), and John Gilford Ilestall v. liora Ha.kara.ia. The application for the new trial was mad© oil tho ground that tho jury's answers were against tho weight of cvidenco. Original Pros and Cons. Tho caso was tried before his Honour and a jury of twclvo . at Palmerston North in May. It was an action to recover tlie balance of the igreod prico of a monument surmounted by a lifesized statue of the late Major Kemp erected in t'he public garden at Wanganuil. The statement of claim alleged that by a written .order dated July 25, 1911, tho defendant employed the plaintiff company to erect tlio monument at tile prico of £100(J. ' Tho contract or order specified a monument fifteen feet high, with a statue''in marble of Major Kemp. There wero to bo four representations of his battles, with inscriptions, etc. Tho defendant, who is Major Kemp's sister, undertook to pay tor this monument, on completion. There was an allegation that the defendant employed the plaintilf to inscribe additional inscriptions on tho monument for £150. It was alloged that £550 had. been paid on account of the total price of £1151), and the plaintilf company sued for tho balance (£000). Defendant denied the mailing -of the contract set out. She denied tho further order for additional inscriptions, and denied completion of tho work. She admitted the payments, but denied that they were made under the special contract alleged, denying, in fact, tho mating of such contract. She set out that siie ordered a -monument to cost (in all)' £650. It was alleged that the plaintiff had not performed tho work under this engagement, and tho defendant claimcd that the contract had been abandoned by tho plaintiff. Defendant also alleged that if she signed, t'lio contract of 'July 25 her -signature was obtained by fraud, and that she never, understood the' purport and effect of the document. By a counter-claim the defendant alleged nonperformance, and claimed to recover back tho sum she had paid-, with, interest. ■ The- statement of defence to the counterclaim set up that James Harris, had no authority to vary tho company's contract, and that thero was no consideration for a.ny such variation: It further alleged that the work was done and the payments were made under the contract of July 25. Tho Original -Findings. The jury viewed the work. They were asked at the conclusion of the hearing / Did tho defendant enter into the second contract fully knowing to what it hound her? jVnswer—"Yes." Was thero an agreement to pay £150 N for the letterpress?—" Yes." , Has tli© plaintilf company performed - its contract to erect the monument under the contract of July 25? — "Yes." 'Was the £250 paid on tho condition that the oompany should bo bouind bv tho receipt dated October 11, 1911?—" Yes." ~ Was that receipt entered into with tho oxpress or implied authority of the plaintilf company?—" No." What would be the cost of replacing the figure on t)ho footing of tho receipt of October 11?—"£150." What His Honour Said.- • His Honour said:—"The principal question is whethor tho answer of xho jury to tlie third question should stand. The question presents itself in an exceptional way, as tho real question was whether tho statue of Major Kemp complied in a reasonable sense with the obligation which tho plaintilf company Undertook. 'There was the direct evidenca c-f artists on the merits of this piece of sculpture, and tho jury viewed it. Iu theso circumstances the Court .ought to bo more than usually careful not to confound its own functions with those of tho jury. The defendant was dissatisfied witli the work, but it was somewhat difficult to connect Tier dissatisfaotion with tho grounds taken by tho artist witnesses. The question, however, is not exactly what views an elderly Maori lady may bo expected to hold of the works, say, of Tliorwald'Sen, but what : sho may be reasonably considered to liave bargained for wihen she contracted for a statue to bo erccted iu tho public garden at Wanganui. . . . The Native Minister, acting for tho Government, had undertaken to boair part of the cost. I think that tho standard ought to bo much t'he same as if the Government or the- Borough Council of Wanganui had made the bargain." Tho statue was expected to conform as a likeness to-photographs of an oil painting in tho -Wanganui Museum, but most of the witnesses said it was unliko Kemp. :"None need feel surprised," ran tho judgment of his Honour (who personally inspected the statue), "that it was a long way from being a perfect likeness, and I think that if that were the real question great latitude would have to bo allowed to the jury in determining the question. The real question rather relates to the character of tho statue as a work of art and as part of tho monument contracted for. Tho evidence showed that Jo produce 'a work of art in sculpture there should be a model in clay or somo otlicr plastic material and that tho sculpture should conform to this. No model was made in this caso. A bust was cut in Oamaru stone which was neither a work of art nor a likeness of Kemp. It is somewhat difficult to recognise that it really exhibits human _ proportions. It is right to say that this model was not followed. Tho hair in the statue is parted on tho opposito side from that appearing in the model. ... I am .bound to say that so far as tho statue is concerned 1 cannot conceive that it comes as a work of art within tho category to which the defendant is entitled." His Honour set aside tho verdict ns a whole and ordered a new trial. The question of costs was reserved. THEATRE DEAL. THE CLAIM MADE BY A BROKER. In tho Supremo Court on Saturday iiiorning, his Honour Mr. Justico Chapman delivered judgment ill the caso of Henry A. Evans v. Francis Loudon, an action in which Evans sought to recover £184 13s. 4d. as a balauco on a special bargain which he,alleged he made with Loudon wheroby tho latter employed him for £500 to form a syndicate to purchase certain land in Manners Street.' The service performed by Evans'was'the 'selling of a number of shares in a company (then not registered), the objects of which were to buy land, build a theatre, and run or let it. No money was paid, but Evans collected deposits and further sums from tho proposed shareholders, and theso had been debited by the companyagainst Loudon. The statement of defouco alleged that shares to tho amount of £2000 wero tlni3 sold. Tho sum of £352 10s., part of tho moneys collected, wero retained by Evans. The parties wore personal friends, said his Honour. They had lived +o-

gether in Evans's house, and wero ap-; parciitly living together at tho date ol tho trial. Tho trial' took a somowhat oxceptional course. Evans, the hrstwitness, fainted in tho box, and the conclusion- of tho hearing had to he post- . polled for a considerable time. Ihen Jjoudon was called and was sworn, and had answered a few questions when his counscl stated that he was not really in a condition to be examined, and produced a medical certificate to support that. Though Loudon expressed ms willingness to proceed, Jlr. T. M. »"■ ford declined to cross-exaniine.him, and Loudon's counsel ottered that deicndant's cvidenco should bo struck out. That was dono. There was. added 'his Honour, other cvidenco called for L<>udijn, which tended to contradict plaintiff's testimony. . His Honour remarked that ho bau found it somewhat difficult to niake out what tho basis of Evans's claim reallj was. Loudon's couiisel said that Lou.don would willingly liavo paid £500 tor tho performance of tho spocial contract, which, as his Honour understood it, would havo meant effecting a prompt salo of tho whole concern to a solvent company or syndicate, subject to tho theatre being orecte'd. This, however, was not tho service performed. jne transaction dragged out, and all that Evans did was to slowly sell 2000 shares. Tho shareholders met, and, finding matters in an unsatisfactory position, camo to ail agreement witli Loudon that no should tako up tho rest of tho snares; in tho company, and put thorn into the company's, hands to sell them on Ins account, and so find money to complete tlio theatre. Having mado this arrangement thev registered tho coippany. Tho Court hold that Evans had not clearly proved any special agreement and that for what ho had done (sold shares) ho had received all ho was entitled to, and apparently more. Judgment, therefore, was for Loudon, to whom costs on tho lowest scale wero allowed. At tlio hearing of the caso Mr. T. M. Wilford appeared for tho plaintiff, and Mr. 0. Beero for tho attendant.