RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3679, 7 December 1874, Page 2

RESIDENT MAGISTRATE’S COURT.

Monday, December 7. (Before J. Bathgate, Esq., R.M.) Drunkenness. Charles Norman and John Murphy for this offence were each fined ss, with the option of twenty-four hours’ Imprisonment; Hllen Donnoghue, an immigrant by the Caroline, answering to her fourth offence, 50s, or fourteen days’. Charge of l>iq,rASS.—A chvrge against a man of trespassing op the old Immigration Barracks, was withdrawn fey the prosecutor. CIVIL CASES. Anning v. R. B. Martin. —In this, a test case brought by plaintiff, one of the intending Palmer Diggings ‘Tushians,” his Worship now proceeded to give judgment as follows: ,ln this .case the facts are as follow:—One MTlroy, of Lyttelton, having advertised a vessel, the Esjieculador, to be laid on for the Endeavor RiVer,'Queensland, tfee plaintiff contracted with him to go as a passenger, and paid a deposit of L 5 ; a co'nditiou being; that if the vessel did r.ot sail the money would be refunded ami the contract cancelled. About the same time Findlay and Co., of Dunedin, had: instructed the defendant to advertise the Comet to sail for the Palmer Rher- Fm’dlay and Co. were then in negotiation with MTJroy, who was half owner of the Comet and agent for the owner for the other half, for the purchase of that vessel. The terms of purchase had been arranged, and the price—L2,Boo, was to be paid LI,OOO cash, and the balance in Dills, the title being retained till the bills were paid. Possession was to be given by MMhoy on the sum of LI,OOO being paid to his credit. While this transactivn was pending, the Customs authorities interfered to prevent the sailing of the Espcculador. MTlroy thereupon telegraphed to Findlay as follows October 13. Have about sixty passengers hooked for Endeavor liirar at LIO each. Doubtful if I will send Especulador; could you carry them, and date departure.” To that the following answer was returned:— “October 14. Can take sixty steerage at eight pounds each from Port Chalmers, leaving you the passage between ports—vessel will sail about twenty-fourth—-reply to R. B. Martin and Co.” This answer was written by Findlay 1 in defendant’s office, and the defendant was aware of all that had passed between Findlay and vLTlrc >y connected with the intending pas I sengers. In consequence of the reference to the defendant, M‘llroy telegraphed to him as follows “ October 15th. Passengers here accept Findlay's offer, fifty steerage, four cabin passengers, each L]s ; intend forwarding them to Fort Chalmers ; steamer leaving about Tuesday ; believe some move open to book ; will wc act here for you ? Advise number required and dates.” M‘llroy also telegraphed to Findlay ns follows ; —“ Have wired Martin that fifty of my steerage passengers go on your terms and four cabin, each Lls, less steamer passage ; believe some more will book.” To MTiroy’s message defendant returned the following answer tire same day : —“Will keep room for fifty steerage and four cabin per Comet; can take few more in saloon, Ll2 each from Port Chalmers,” MTlroy thereupon proceeded to act as agent for the defendant, and in that capacity contracted with the plaintiff to give him a passage to Endeavor River by the Copet ; to sail fromPoj-t Cfeafeuerg, for £lO,

Of that sum L2 was to belong to MTlroy to defray the passage to Port Chalmers, and the balance of L 8 was to pay for the passage by the Comet from Port Chalmers. Instead of MTlroy returning Ld paid by the plantilf as deposit oil (he fare by the Especulaior, it was agreed between them that that sum should be appropriated as part payment of the sum due under the new contract, and the plaiutilf paid M'llroy the balance of l .d due thereunder, for which he received a receipt in the following terms ; “Lyttelton, October 17, 1871. —Received from W. Aiming the sum of live pound-, as balance on passage from Lyttelton to Endeavor River, Queensland, per Comet from Tort Chalmers. As agents for R. B. Martin and Co., for W. J. M'liroy and Co., F. W. Hacks.'’ The plaintiff and a number of others were forwarded by M'llroy from LyCelton to Port Chalmers bV the Maori, and they arrived on the morning of Tuesday, 20hh October. The captain of the Comet could not receive them on board, as the vessel was not then discharged, and Findlay and Co. had not completed their purchase and taken possession. He allowed them to leave their swags on boa d. The plaintiff and others then went to Dunedin and saw the defendant’s clerk, who first informed them the passage money was LT2. At that moment the defendant came in, and a conversation took place during which the defendant took the plaintiff's tickets into his hand and read them, using the words in reference to the first receipt “ This is Lb, - ’ and in reference to the second “Oh! that is the balance.” He then handed them back to plaintiff, saying. “ All right, put them in your pocket, you will need them when you go on hoard.” Further remarks passed as to the day of sailing, which was stated to be the following Saturday, 21th October. The plaiutilf and his companions then loft in the belief that their passage by the Comet was seem ed. The defendant denies that he read the tickets or used the words quoted. He is corroborated by the clerk, but he stated that defendant took the tickets in his hand while the defendant said that he did not believe he did so. In this conflict of testimony the preponderance is in favor of the plaintitl, as live witnesses support the plaintiff’s statements, while there are only tha defendant and his clerk on the other side, and they do not agree in all particulars. The subsequent conduct of the plaintiff and the other intending passengers also confirms the plaintiff’s statement, as they left the office quite satisfied that all was right, one of them going all the way to Tokomairiro and remaining there for three days, till almost the day of sailing. The defendant admits that he did not then repudiate M'llroy’s action, and it is fairly to be inferred that if the defendant had said anything thou in effect that he declined to recognise MTlroy’s tickets, the plaintiff and others would ihcu and there have expressed their dissatisfaction. The defendant afterwards saw Findlay, and on the Thursday after, when the plaintiff in consequence of something ho had heard called again to see the defendant, the latter then said that he would not recognise MTlroy’s transactions, and he refused when asked to write across the tickets that he did not recognise them. The defendant did not write or send any word to MTlroy as to what had taken place. The Comet never sailed for its intended destination, and the purchase was not completed till early in November, when Mr Hohlship, the joint owner, came from Auckland and completed it, he being authorised by MTlroy to do so. Litigation had been commenced before this by the plaintiff against the defendant, and MTlroy was apprehended on a criminal charge which was subsequently dismissed. The whole facts now stated show the tiansaction in a fuller aspect than was formerly presented to the Court. The decision in the former case was given without the telegrams which bad passed having been before the Court, and on the assumption that the defendant had no knowledge whatever of MTlroy or of what he had done, and that M'llroy was an entire stranger to him. It is now clear that the defundant was fully aware, both through I itullay and by direct communication with MTlroy, of the proceedings of the latter, and the defendant expected the passengers from Lyttelton. The facts being as stated above, the questions arise—l. Did the defendant authorise MTlroy to act as his agent in booking passengers for the Comet ? 2. Although he had not so authorised him. did he, in the knowledge of what MTlroy had done, approve of and ratify his proceedings afterwards? In reference to the first question, it is clear that the defendant did not answer the question which was directly put to him by MTlroy—“Will we act here for you?”—while he gave information as to the fares and other matters. In being silent on the point of the agency, the defendant created an ambiguity and difficulty, for which he is to blame. Where there is a duty to answer, silence implies assent. There are many commercial cases in which silence infers approval, and in this instance, where the other points in M T hoy’s telegram are answered, silence on the question of agency naturally leads to the implication of assent. If not, why were the other particulars sent to MTlroy ? If the defendant did not want anything to do with MTlroy, it was his duty to have said so, or, if he desired the hooking of passengers to be carried on in any special manner, he ought to have forwarded special instructions. It may be true that the defendant never intended MTlroy to act as his agent, but, looking at the telegrams, and other facts which then existed, I am of opinion that MTlroy acted reasonably in inferring that he was authorised to act as agent for the defendant in the matter, and that he did so in good faith. There was a large sum due to him at the time by Finlay, and it has not been shown that he was a person of doubtful credit and reputation. Indeed the whole connection of Finlay with the Comet was through MTlroy. It has been held that where “a principal gives an order to an agent in such uncertain terms as to be susceptible of .two different meanings, and the agent bond fide adopts one of them and acts upon it, it is not competent to the principal to repudiate the act as unauthorised, because Ije meant the order to be read in the other sense, ■' of winch it is equally capable. It is a fair answer to such an attempt to disown the agent’s authority to tell the principal that the departure from his intention was occasioned bv his own fault, and that he should have given his order in clean and unambiguous terms.” (Lord Chelmsford in appeal case, House of Lords, Ireland, v. Livingstone, 41 L.J., Q. 8., 201.) A similar principle was affirmed in the House of Lords in another case in which an ambiguous letter had been written. Lord Colonsay '• Says “ the writer of the first i letter cannot force upon the other party his own interpretation of it against the interpretation of whjch his letter would be reasonably. susceptible, and which has been adopted by the • other party. For he himself is to blgme if lie : has written a letter which is susceptible of a double interpretation.” (The English and Foreign Credit Company v. Ardmin, L.J., 40 ; Ex., 108 ) It is the policy of the law to discourage the conduct of business in an ambiguous or doubtful manner, and no person can be permitted to take the advantage of a difficulty created by himself. M Tlroy c.umot be considered to be an officious intermeddler or a mere stranger in this affair, and he was justified iu inferring in the circumstances that the defendant authorised him to act as his agent in the matter of the Comet. The plaintiff dealt with j MTlroy as the defendants’ agent, and is responsible accordingly. 2. But although there has been a doubt on this point, did the defendant, in the knowledge of what MTlroy had done, ratify his proceedings afterwards ? When tl;e plaintiff and others called upon him, and he became aware thgt MTlroy Imd acted as bis agent, he did not at once lepudiite Jiis acts, asjjit was Ids duty to have done if he disapproved. According to the defendant's own statement lie temporised with I the men, and gave them no direct answer. He says he waited for advices. But it is clear that he had full information as to the number booked and expected, and he knew from the men that MTlroy hail dealt with them at his request. According to the plaintiff and his witnesses they were led distinctly to believe that MTlroy’s acts were approved. Why did he not then and there put the matter right ? Whether the plaintiff’s or the defendant’s statement be taken as true, he failed in his duty if he had no intention of adopting MTlroy’s acts, ami thereby incurred responsibility to the plaintiff'. In the case already quoted, Lord Colonsay says further“ When he received an answer, if that answer clearly showed upon the ’ face of it that the writer of the answer had ■ jmt upon thi,‘ letter au interpretation which he,

the writer of the first letter, did not intend, then it was his duty to have put that matter right, or ho must be held to have acquiesced in that interpretation, or at least he must submit to any loss that he may sustain by the interpretation.” When the defendant ascertained that MTlroy had, according to the defendant’s views, misinterpreted his silence, and had, contrary to the defendant’s intention, acted as his agent, he was bound in fairness to have informed the plaintiff what he really meant, and also to have immediately communicated with MTlroy on the subject. His failure in these particulars, together with the other attending circumstances, iu my opinion, clearly imply that he acquiesced in and ratified the interpretation put on his message by MTlroy, and MTlroy’s subsequent acts as his agent. In answering the questions suggested, it may be said that the facts specially connected with each throw light on the subject of both questions. Iu answering the first, the conduct of the defendant, when the plaintiff first called upon him in Dunedin, may be considered as assisting towards a correct apprehension of the meaning of the defendant’s telegram ; and in answering the second the effect o; the whole of the telegrams quoted may be. taken into account, as having a bearing on. the point whether a ratification of the contract made by MTlroy with the plaintiff has fairly arisen by implication from the acts and proceedings of the defendant. It must be borne in mind that it is by no means necessary that there should be any positive and direct confirmation. Slight circumstances and small matters will sometimes suffice to that effect, and for this purpose the acts and conduct of the principal are construed liberally in favor of the agent. On the whole, I have come to the conclusion, without hesitation, that judgment must be fer the plaintiff. On account of the importance of the case as a test one, I have gone fully into the reasons upon which the decision is based, with the view of facilitating an appeal if the defendant is so advised. I assess the damages at L 35, with costs. Mr Barton : And what does your Worship say as to costs ? 1 presume that all costs will be granted. The ca e was a very long one, and I think your Worship ought to allow the finest scale of costs abowe i iu the Act, for it is really a Supreme Court case, being tried in this Court. —His Worship, seeing the time occupied, and the importance of the case, had already directed the clerk of the Court to make out the scale. Three guineas —the full amount—would bo allowed. —Mr Barton pointed out that this would be about os per day. If a few heaps of stones were in the < ourt, and the lawyers were to be employed breaking them during the interval, they w uld be better paid for their time. Pyke v. M'.'ab. —Claim, L 3 2s, fraud summons for moneys collected on behalf of the ‘Southern Mercury,’ and not accounted or. Defendant had been agent for the paper at Cromwell. His Worship looked upon this as a very bad case If a man collects money for another, and did not account for it, he did not know what fraud was. Judgment was given for plaintiff, with costs.