COURT OF APPEAL

Dominion, Volume 9, Issue 2743, 11 April 1916, Page 9

COURT OF APPEAL

PRELIMINARY POINT OF LAW

The Court of Appeal resumed at a quarter past lO.o'clook yesterday morn-

ing, when reserved judgment was delivered on a preliminary point of law, which

had been argued beforo Their Honours Mr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Hosking. The plaintiff in the action was Thomas Scurr, land and estate agent, of Dunedin, the defendant being tho Chief Justice (Sir Robert Stout). Mr. T. Neave appeared for plaintiff, while Sir. John Findlay, K. 0., with him Mr. •J. L. Stout, appeared for the defendant.

In the statement of claim in the original action, the plaintiff (Scurr) claimed £96 ( os. alleged to be d'ueas commission on the sale for £5000 of a piece of leasehold land and buildings in Princes Street, Dunedin. The claim ,ivas- based upon a letter from Sir Robert Stout dated October 20, 1914, upon an offer of the property by Scurr to the Public Trustee, to whom tho land 'was sold by Sir Robert Stout (so plaintiff alleged) between October 22, 1914, and April 26, 1915.

The defendant admitted writing to the plaintiff on October 20, 1914, but denied that the letter could be construed as an authority to sell, and denied that the plaiutift (Scurr) had the required written instructions to act as agent. The letter admitted in the statement of defence read:—"Messrs. Scurr and Co., auctioneers, Dunedin. Dear Sirs—l am in receipt of your telegram of yesterday, asking me lowest price of my Princes Street property, subject to commission. My position in regard to the property is as follows:—The present net income from the property is £220 per year, that is, after paying ground rent, rates, insurance, etc. This income is not subject to land or income tax. If I wero 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 ou mortgage must contemplate some periods of noninvostmeht and some risk of loss. Suppose £16 per annum was put down for that. Then there is the cost of collecting interest, say per cent. You will therefore see that if these various sums <vere capitalised at 5 per cent.* the amount would exceed £5000. Then you claim a commission, the amount of which you do not state. I have placed beforo you iny position. The placo 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 for your constituent to say what he is prepared to offer. Ho cannot expect mo to accept an offer that would reduce my income. I may add that I would have no objection to a reasonable sum remaining on mortgage.—Yours truly,

Ltobert Stout." . When tho action came on for hearing g in Duuedin Mr. Justice Sim directed u: that thu following preliminary, question p jf law should be argued: "Whether the u letter of October 20, 1914, from the defendant to the- pluintill was an' engage- tl ment or appointment of the plaintiff to J net as agent in respcct of tnc sale or w disposition of the property referred to?" v Ihe quostion was subsequently removed to the Court of Appeal, and wa3 argued in Wellington last week. In the judgment of the Court, read li yesterday by Mr. Justice Edwards, the u question submitted was answered in the c negativo. The Court sould not under- 1 stand how plaintiff could say. he iVaB in f any way authorised to act as agent. It f was quite impossible to place such an t interpretation on any of the telegrams I or letters received by plaintiff. _ The t same decision must have beon arrived at quite apart from the Land' l Agents Acs. c The oaso was remitted to tho Court be- J low to be dealt with, and defendant was t awarded costs in the Court of Appeal on I the lowest scale as from a distance. t _j ( CONVICTION QUASHED. \ Reserved judgment was also delivered in tho case of the King v. Olive Theresa ( Hayncs and Thomas William Hayncs. ] The female defendant was arraigned at , Napier on a charge of having made a fnlso declaration before a Justice of the Peace to the effect that certain furniture and personal effects wore destroyed by firo in a home burned down at Mangatoro, Hawke's'Bay, on December 12, 1915, with intent to defraud tho Atlas Insurance Company. The male prisoner was charged with aiding and abetting the commission of the offence. The jury returned a verdict of guilty, and the question at. issue was whether tile verdict was correct and whether the declaration was in such a fopn as to bring it under the terms of the Act. At the hearing tho Solicitor-General (Mr. J. W. Salmond, K. 0.) speared for the Crown, the defendants having Mr. B. J. Dolan as counsel. ' Their Honours Mr. Justice Edwards, Mr. Justice Cooper, Jlr. Justice Sim, and Mr. Justice Hosking decided that, as there had been a deviation from the prescribed form of declaration, the conviction must bo quashed. The Chief Justice dissented. AN APPEAL DISMISSED. In another case an appeal was dismissed, with costs on tho highest scale, b/ a Bench comprising Their Honours Mr. Justice Ediwards, Mr. Justice Cooper, Mr. Justice Sim, and Mr. Justice Hosking. The case was an appeal from a decision of the Chief Justice, ordering the propagation of complete accounts in connection with the will of tho late Albert Edward Olson, farmer, of Waikopiro, Hawke's Bay. The appellant was A. T. 0. Olsen, farmer, of Awariki, and tho respondents Eileen Signer Alberta Bai and others. Sir John Findlay,, K.C., with him Mr. T. H. G. Lloyd, of Dannevirke, appeared for the appellant, while Mr. C. P. Sker--rett, K.C., with him Mr. Humphries, of Napier, appealed for the respondents. The Court made it that the ■original judgment should' bo modified to some extent by. the Chief Justice sitting in Chambers. - A WANGANUI CASE. Argument in a- case from Wanganui was subsequently heard before Their Honours the Chief Justice (Sir RobertStout), Mr. Justice Edwards, and Mr. Justice Cooper. The plaintiffs in the case were 6. C. B. Harper, farmer, of .Makirikiri, near Wanganui, and W. W. Taylor, farm manager, of Pukoroa. The defendants' were A. J. Joblin, farmor, of Taihape, and his wife (Mrs. Joblin). Counsel for the plaintiffs were Sir Francis Bell, K.C., Mr. C. P. Skerrett, K. 0., and Xlr. A D. Brodie, while the defendants were represented by Sir John Findlay, K.C., and Mr. j. M, Ilussey. , Plaintiffs alleged that, in consideration of the plaintiff Harper guaranteeing A. J. Joblin's account with the Union Bank for a fixed sum, Mrs. Joblin offered certain lands as security, the plaintiff having an option to purchase oil certain conditions. Plaintiff Harper, who had assigned his interest to the plaintiff Taylor, now sought specific per- | formance of an agrement that had been 1 entered into, and tho terms of .the i agreement consequently came into question. Evidence in tho action was hcf.rd at Wanganui, and by direction of the presiding Judge (Mr. Justice Edwards) the ease was removed into the Court of Appeal for argument. It was oh the list at the last, session, but before decision had been delivered a missing document

was discovered, and the Court directed that the case should bo re-argued at the next sitting. Legal argument had not concluded at the adjournment last evening.