LAW REPORTS

Dominion, Volume 9, Issue 2738, 5 April 1916, Page 9

LAW REPORTS

COURT OF APPEAL

PRELIMINARY POINT OF LAW

.. When the Court of Appeal resumed yesterday morning, the Bench, was occupied by Their Honours Mi. Justice Edwards, Mr. Justice Cooper, and"Mr. Justice Hosking. 'The business before the Court was the settlement of a preliminary point of law arising out of a claim against the Chief Justice (Sir Robert Stout). The plaintiff in the action was Thomas Scurr, land and estate, agent, of Dunedin, the defendant, as mentioned, being the Chief Justice. Mr. T. Neave appeared for plaintiff, while Sir John Fimllay, K.C., with him Mr. J. L. Stout, appeared for the defendant. In the statement of claim in the original action, tho plaintiff (Scurr) claimed .£96 as. alleged to be due as commission on the sale f0r..£5000 of a piece of leasehold land and buildings in Princes Street, Dunedin. Tho claim was based upon a lottor from Sir Robert Stout dated October 20, 1914, upon an offer of the property by Scurr to tho Publio Trustee, to whom the land was sold by Sir Robert Stout (so plaintiff alleged) botween October 22, 1914, and April 26, 1915. The defendant admitted writing to the plaintiff on October 20, 1914, but denied that the letter could bo construed as an authority to sell, and denied that the plaintiff (Scurr) had the required written instructions to act as agent. The letter admitted in the statement of defence read: —"Messrs. Scurr and Co., Auctioneers, TsuTrairirr i -S£ar_Jttr6j—l am in receipt of your telegram _rne_ lowest price of my Princes Street property, subject to commission. My position in regard to the property is as lollows:—The present net income from the property is .£220 per year, that is, after ? nying ground rent, rates, insurance, etc. 'his income is not subject to land or in. come ; tax. If I were to realise, I would have to pay a mortgage tax if I invested on mortgage. Supposing I invested .£4500 tho mortgage tax would be a shade over £14. Then'. one investing on mortgage must contemplate some periods of noninvestment and sonio risk of loss. Suppose .£l6 per annum was put down for that. Then there is tho cost of collecting interest, say at 25 per cent. You will therefore see that if these various sums were capitalised at 5 per cent., the amount wout'd exceed ,£SOOO. Then you claim a commission, the amount of which you dq not state. I have placed before you my position. The place is let to Messrs. Mondy and Stephens, but they stated they would meet me if I sold. That would have, to be arranged, so that they would have a reasonable notice. It is fpr your constituent to say what lie is prepared to offer. He cannot expect me to accept uu oiler that would jeduco iny income. I may add that I would have.no objection to a reasonable sum remaining on mortgage'.—Yours truly, Robert Stout. When the action came on for hearing in Dunedin, Mr. Justice Sim directed that tho following preliminary question of law. should be argued: "Whether the letter of October 20, 1914, from the defendant to the plaintiff was am engagement or appointment of the.plaintiff to act as agent in respect of the sale or disposition of the property referred to?" question was subsequently removed to the Court of Appeal, where it was argued yesterday. ' ■ Tho argument stands part heard. A TEST CASE■' The Court was engaged yesterday after, noon in hearing the case of Annie Magner v. Ernest AV. F. Goluis, an important test case concerning the right of tho Court of Arbitration to allow an agreed-upon preference clause to becomo part of an award. Tho Bench for the hearing ot this case was occupied by Their Honours tho Chief Justico (Sir Robert Stout), Mr. Justice Edwards, Mr, Justice Cooper, Mr. Justice Sim, and Mr. Justice Hoskwg. Some months ago a barmaid at Wanganui vtas prosecuted for failing to join the Hotel and Restaurant Workers Union, that union having in its award the preference clause in quesiion.. Ihe barmaid was fined by the Magistrate, Ibut she appealed to tho Arbitration Court against her conviction on the ground that the preference clause was not legal. The olause in question was not the clause framed by the Court itself,, and known as the "Court's preference olause," but was one wMoh has from time to time been embodied in agreements between the parties and subsequently confirmed by the Court. When ihe appeal came on for hearing, His Honour Mr. Justice Stringer thought that the question of the Arbitration Court's power to insert such a clause in an award was one to he decided by the ■Court of Appeal. Ho accordingly relerred it to the higher tribunal. _ ' . Mr. C. P. Skorrett,-K.C, with him Mr. L. Cohen,.of Wanganui, appeared yesterday for the appellant, while the SolicitorGeneral (Mr. J. W. Salmond, K.C.) appeared for the respondent (the Inspector of Awards). Sir John Findlay,'K.C, is looking after the interests of the labour unions in'the matter. '■'■■• The argument stands part heard.