SUPREME COURT.

Evening Star, Issue 3645, 28 October 1874, Page 2

SUPREME COURT.

CIVIL SITTINGS. Wednisday, October 28. (Before His Honor Mr Justice Chapman and a Special Jury.) Dodson v, Macandrew. —This was an action brought by plaintiff, hotel-keeuer at Dunedin, to recover LI.UOU damages' from defendant. Superintendent of the Province <>f < ! tago, for i.legal ejection from the ref'eslimdot rooms at the Port Chalmers railway station, and fori S3 sustained through ihe proparty of plaintiff being exposed on the railway platform. For the defence the material allegations were denied. Messrs Maoussey ami Stewart appeared far nlaiatiff; Messrs .Smith, Haggitt, and Stout for defend ant

Jamog Macandrew, who was not sworn, said he believed it was not usual to produce the minute-books of the Provincial v stcu--t:ve, a>e therefo e did n.,t produce either the rouge book of the minutes or the minutes themselves. It was hardly competent for him to nuke any statement on the subject This closed the plaintiff's case.

. Mr mith moved for a non-suit on the fallowing grounds :-1. That the agreement mentioned m the second paragraph of the declaration had not been proved. 2. That the agreement proved is not Ivndine on the defend mt—the Superintendent-as treating him as a tenant. 3. That the agree-mut proved is not binding on the Superintendent m treating him as a-si oee of Mes'rs Proudfoot and Oliver’s r ght, title, and interest, because there is no proof that the assignees were mention! d in the agreement 4 lbs agreimeat, as proved, is not binduig on the defendant, h.cause it is - ot L. ln,l(Jms: on Proud foot and Oliver, o. ihe agreement proved is a mere personal contract, and therefore not bidding on the defendant. 6. There is no coi lenco that the 'Uperintendent acquired the said refreshment rooms on bd.af of the Province, as alleged m the third paragraph of the de- « aia aon. 7 There is no proof that the Supermtendem had notice of either the tenancy of the plaintiff or the condi ions thereof, as alleged in paragraph four. 8. There is no proof of the matters alleged in paragraph four of tue decUn atlou, 9. Tho evidence aoes not show as alleged in paragraph six of the declaration, that the defendant, as the 'Mijviintenießt-, is liaMe to bo sued for the wrongs therein complained of 10. On the evidence, the action of the Provincial Solb citor, even assuming him to be legally authorised by the Superintendent, is justifiable in law, and therefore the evidence disclosed no cause of action. H. The evidence only raises the legal presumption that the plaintiff held the premises from Messri I’rcudtoot and Oliver from year to year at a certanfc i-eafc, and that, therefore, according to the New Zealand law, f,° . 8 l! e 9? al conditions of agreement such as that alleged in the declaration could be grafted therecu without a deed, of which there was no evidence. 12 The evidence shows that the defendant was Only the agent of the Governor, and acted as the manager or the Port I halmers railway, pursuant to the provisions of the Itmni-rration and Public orks .act, 1872, and therefore is not liable to bp surd in this case.

The nous-n£ points were not allowed, but leave was given to u ge them after the vtr chct, on motion to a; t it aside or enter up J u «gment for the defendant.

called bavin S addressed the jury

David Proudfoot. one of tho pvomocera of the Port Chalmers, who said he let the refreshment rooms at Port Chalmers fer one lsfc January to 31st December. 1 '?/'?• 'Vhen Dodson took possession there was notlung few* the bare wa]]s and the bnildmg was not completed till January 13. There was no agreement whatever with regard to furniture, fittings, and fixtures, nor wdh regard to stock. Nothing w>s said about the incoming tenant taking all fittings and stock at tiie end of the twelve mouth■» there.was no such agreement, and if Dodson said there was he stated wh-fc was quite un“T u ®* da .V s after taking possession Dodson tried to get witne-s to allow him something for the fittings, bub be rep iccl that oa no account would he do so At no time did he make such an arrange'ment with regard to furniture and fitting. Witness was in no way interested with Mr brorge Proudfoot in the rooms By Mr •Uaca.sey : Witness . called for tenders for the refreshment rooms at Dunedin and Port I nalmers, the lenders being received at the t,lrne ‘ n °t af,wee with Doison or t r i° t W for ' the fittings, or with Wglter that at the end of the tenancy, stock fixtures, and furniture should be taken at ;it valuation by the incoming tenant. He, however, believed such an arrangement with Walter was made on behalf cf witness a firm, *but there was no agreement with Walter by which he was 1 1 he p '.id by the incoming tenant before the latter took possession. Witness made (he arrangements with Dodson and Mr Oliver with Walter Witness was not aware until that moment of the arrangement with Walter Just referred to All the fittings at Port Chalmers could be put in for L4O or 150, and he should say the furniture was worth 150 more. After Walter took possession, concessions were made to him because he complained of having given too much for the Dunedin rooms, and because lie asked for a t Dunedin end was worth L2OO, the Port Chalmers end was worth. L4OQ or 1/450. At the present time, close upon Lsoi) was paid for the latter. He did not know the reason why Dodson’s leas* was never signed. The latter refus dto sign it after he was in possession. Mr Macassey was addressing the iurv at four o’clock. J