DISTRICT COURT.

Globe, Volume XXII, Issue 2026, 21 August 1880, Page 3

DISTRICT COURT.

Friday, August 20. [Before hia Honor Judge Ward.] The usual monthly eittinga of the Diatrict Court wore opened yeaterday morning at eleven o'clock. POSTPONEMENTS. Tho cause liat conaisted of aeven cases. In Eakaia and Aahburton Eailway Company v John Mann, and the same v Peter McKerrow, Mr Garrick appeared, and stated that thenett amounts claimed had been admitted by the defendants, on which ground he asked the Court not to put the parties to the coat that would be entailed by judgment being paased. Tho cases were allowed to stand over for a month. The case of G. King V E. Steggall was postponed for hearing on Monday next. PATEICE HAEBIS V "W. HABDING. Mr Perceval appeared in support of the claim, an action to recover £53175, part of the purchase money of a section of land and interest thereon. It appeared that tho plaintiff had agreed to purchase a piece of land from defendant, and paid him £47 10s, being a portion of the price agreed upon ; but he waa not in a position to givo a titlo at the time of sale, nor could he do so at present. Judgment waa given for plaintiff for £47 lOi and coats. GUTHBIE, LAENAOH AND CO. T WILLIAMS. This was a claim of £7l 43 6d, for gooda sold and delivered.

There who no appearance of the defendant. The manager for plaintiffs certified that the goods had been delivered, that the prices were fair and reasonable, that application for payment had been made, and that the debt wbb still owing. Judgment for the plaintiff for amount claimed and coats. JOINT AND PERCEVAL T J. II ST/TTBE AND

P. GREENUP (TRUSTEES IN ESTATE OP G.

CLIFP. Mr Joynt appeared on behalf of the plaintiffs; Mr Whito (of Timaru) for the defendants. This wao an action to recover £169 7a 93, the costs of an action arising out of the Waimato Bush fire case, in which Mr George Oliff was one of the plaintiffs. He filed a declaration of insolvency during the course of that action, and Messrs Joynt and Perceval woro instructed by the trustees named herein to continue it. The preßont action was therefore taken to recover from them the coats incurred.

Mr Joynt intimated that the facts in the caao were admitted. He then proceeded to stato them, and put in letters of instruction

to Messrs Joynt and Perceval under authority of tbe trustees, and correspondence generally bearing on the point at issue, whioh passed between the plaintiffs and defendants; among the letters from the trustees being one which stated that whilst they had no intention of taking the case out of plaintiffs' hands, they could not guarantee anything, as they had only about £2OO in hand. The bill of costs having been duly tendered, a reply was received from Messrs JSutter and Greenup to the effect as the principal items in the bill of costs were for services previous to Mr Oliff filing, they (the trustees) did not consider themselves liable except in so far as a dividend was ooncerned. To this Messrs Joynt and Perceval wrote, stating they could not recognise any such division of liability, and gave notice of their intention to sue for the whole amount claimed.

Mr White said the only question was, did the trustees take the action on behalf of Cliff, and even if they did, were they responsible for the costs incurred by Cliff previously to his bankruptcy. He pointed out, according to the correspondence, that Messrs Joynt and Perceval in one letter asked for security of costs, and the trustees replied that they could not give any such security, clearly showing, to his mind, that Messrs Joynt and Perceval had proceeded with that understanding. Mr Joynt remarked that the letter was not meant to apply to tho costs of his firm; the meaning of the letter referred to was that (in regard to the action referrod to) if the plaintiffs were called upon by the other side they would bo bound to give security for costs in the ordinary course. His Honor said that no doubt was clear enough, but tho trustees may not have understood it in that light. Mr White proceeded to argue from the correspondence that the trustees had fully protected themselves by refusing to give any guarantee as to his costs, and he contended that the trustees could not be held to be personally liable for all costs incurred in the caso in all its stages. His Honor pointed out that if the trustees had been successful in the action Cliff against Studholme, the solicitors would be entitled to costs.

Mr White admitted that the costs could be deducted in the usual course, but as to this case submitted that the trustees could only be liable for work done subsequent to the stage at which they took it up. Ha also pointed out that nothing material was done by tho plaintiffs subsequent to the time when the trustees gave them instructions to proceed. In fact Messrs Joynt had done no work for the trustees, as such, except to discontinue the action Cliff against Studholme. Mr Joynt submitted that his learned friend had admitted the correctness of the items by paying money into Court. Mr Whito acknowledged tho truth of this, but pointed out that such an admission should not dobar him from criticising those items by wsy of illustrating his argument. His Honor suggested that the letter of instructions re discontinuance seemed to imply that the trustees had it in their minds that they had incurred a liability so far, which they did not wish to increase. Mr White would, as to that point, ask the Court to believe that tho trustees actod under an erroneous opinion as to the law ; but he contended that the trustees had not in all the correspondence admitted their liability for anything that took place before the bankruptcy. His Honor—Then you hold that trustees can proceed with an action from the date of bankruptcy without liability for any former costs.

Mr White—Tes. I contend that it is the duty of the solicitor to protect himself at the time ; that there should be some specified agreement between the parties, and not leave it simply to implication. The trustees could not do otherwise than protect the estate, in justice to creditors generally. His Honor agreed that the trustees were perfeotly justified in fighting the case, especially as it was one in reference to which there were so few authorities to rely upon. Mr Joynt replied at some length. He pointed out that it must be perfectly obvious that the plaintiffs in this case would not have undertaken the case if they had not supposed they would get their costs, and as a general principle he submitted that where assignees of a bankrupt took up a contract and insisted on it being complied with by the other side, they did implicitly promise to pay the costs. (The learned counsel quoted cases in support of his argument.) The trustees having adopted a contract they were bound to perform all that the bankrupt ought to porform. The addresses of counsel being concluded, His Honor delivered judgment. He Boid— It appears to me that this case is very hard upon the trustees. I think it quite possible that when they wrote their letter on the 21st February, they had no idea they were rendering themselves responsible for the costs incurred in the aotion previously ; but here is a distinct request (addressed to Messrs Joynt and Perceval) to proceed with the case, and the fact of their paving money into Court shows that something was done undor these circumstances. Subsequently, a case was decided in Dunedin which had tho effect of terminating proceedings. Ido not see how the trustees could be entitled to take up a contract on a special prinoiple, agree to continue it, and then beGause subsequent circumstances show it is not likely to be beneficial, say, "We will have nothing to do with it." I am afraid that, however hard the case may be on the trustees —and no doubt it is hard on them—l must bo governed by the principle of law, and I think it is clear that the verdict must be for the plaintiffs. Judgment for the plaintiffs, the costs to be taxed. 3ICFAELANB V J. AND A. ANDEEBON. Mr Joynt appeared for the plaintiff, Mr Harper for the defendants. This was an action to recover £B2 2s 6d for posts and rails sold and delivered to the defendants. The defence was that the goods were not supplied as alleged. Mr Joynt stated the circumstances of the case. His Honor—ls there any dispute about the price or number of posts ? Mr Harper—Yes, your Honor ; it will all have to be proved. Wo know nothing about the claim. Mr Joynt proceeded to call evidence. Harry Lake deposed—My father and Mr Beard were partnora as sub-contractors for the defendants, on the Rakaia and Ashburton Forks Railway. I was acting as foreman for them. I know there was an order given for posts and rails by an employe of Lake and Beard. They wero supplied. I saw them on the line. I used them for fencing, &c, for Messrs J. and A. Anderson, as an extra to the contract before-mentioned. My father charged for tho labour only in the work for which the posts and rails were used. A statement of extras was sent to the defendants.

At this stage Mr Joynt wished to put in an account of the extras charged to tho Messrs Anderson.

Mr Harper objected, as he had received no notice, and the objection was upheld by the Court.

Examination continued—l remember going with McFarlane to defendant's ofiice after the posts and rails were delivered, about tho end of last year. [Receipts for posts and rails put in. J A man named Lakeman, at present in Dunedin, gave the order for the material in question, and it was not given to carry out work for the defendants, in which my firm had to find both labor and material. Whon we went to Anderson's office in Oashel street wo saw Mr Anderson junior. I rendered my father's account to Mr Anderson. He asked mo wby the account had not been rendered before. I said the account had been propared but was delayed in forwarding. He then asked me what the poßts and rails were for. I told him for cuttings and ballast pits. Mr Anderson said it would be all right, and that he would send my father a cheque. McFarlane remarked that tho firm hod a contra account with hira,acd he asked Mr Anderson to deduct the amount and give him the balance of tho money. Mr Anderson said that rested with Mr John Anderson, of the foundry, but that he would see that gentloman and get the cross account squared up. Lake was aofcing as agent for Anderson Brothers in connection with this line, and they also had a sub-con-tract uudor thorn, having only to find the labor except in a case expressly named, where they had to find material. I consider 90s par hundred for poßts and rails a reasonable price. Oross-oxaminod by Mr Harper—l was not at the works at the commencement of the work. We also got some poßts and rails from Montgomery, but not to the same extent as from McFarlane. I read tho order given to the latter. My father and Beard have not yet settled up with J. and A. Anderson. A dispute conti"ues between tho parties. The contract is not yet finished. My fathor is away for the good of his health. We did not recognise MoF&rlane'a acoount. McFarlane sued

Lake and Beard in tbe R.M. Court for the amount of the bill now in dispute. The document produced is equivalent to onr tender (tender put in evidence). Subsequently a bill for extras was sent in by Lako and Beard.

At this stage Mr Joynt suggested that the adjournment Bhould be taken, and asked His Honor if he would have any objection to sit on Saturday. His Honor said he had no objeotion, and loft the matter in the hands of counsel.

This Day. [Before His Honor Judge "Ward. J MCFAKLANB V J. AND A. ANDBBBON. This case had been adjourned from the previous day. Mr Joynt continued the case for plaintiff. A. MoFarlane deposed that he had received a written order from Lake and Beard. Could not produce It. On the strength of that he supplied the posts and rails in question, on the understanding that they were supplied to Beard and Lake for Messrs. J. and A, Anderson.

[The remainder of tho evidence was corroborative of that given by tho first witness on Friday.] Frank B. Passmore, engineer for the Rakaia and Ashburton Forks Railway Company, deposed that Lake was tho agent for Messrs J. and A. Anderson, tho contractors, when plaintiff delivered tho material. In cross-examination, the witness said he wrote to defendants stating that he could not recognise Lake as contractor, and he (Lake) was then appointed agent. This concluded the caso for the plaintiff. Mr Harper then opened the case for the defence, and asked that the plaintiff Bhould be nonsuited, on the evidence already given, which showed that plaintiff had elected to give credit to the agent by his taking an action against Lake and Beard previously. (Priestly v. Fernley, 34, L. J. Exchequer, p. 172 ; also, quoted " Evans' Law of Principal and Agent in Contract of Tort.") Mr Joynt said he could not accept a nonsuit.

The following evidence was then called : John Anderson, jun., and one of the defendants, deposed that Lake and Beard were sub-contractors under them.

Mr Joynt objocted to the contract being put in evidence. His Honor thought he must admit it, but took a note of the objeotion. Mr Anderson's examination was then continued. He stated that the post and rails were not mentioned in Like and Beard's account, and that is why he (the' witness) promised to forward a cVque. The 'sub-con-tractors had received €10,600, and were probably somewhat ' overpaid. It was not a matter of any consequence to them where Lake and Beard got the pest and rails. Cross-examined by Mr Joynt—Passmore never refused to recognise Lake as our agent. Wo considered we paid Lake and Beard in full, including all tho extras. Wm. McFarlane deposed that Miles was carter for Lake (receipts of post and rails put in). The orders were signed by Lake alone. Witness sent in an account to Lake and Beard in October.

Jarvis Beard, partner with Lake under Ashburton Forks railway contract, deposed— Knew nothing about the order for the post and rails, Lako had charge of the work on our contract. Witness was not up there much. He did nothing with the orders himself.

Alexander Anderson deposed that he was one of the defendants. Knew nothing about the" order for poats and rails givenjto McFarlano. Supplies had been got by the subcontractors from other sources, but they (the defendants) had not been applied to for payment from any one else on account of Lake and Beard. An attempt was made to effect a compromise between the parties, aud witness refused to pay a farthing for the posts and rails, Mr McFarlane was present at the time.

Harry Lake deposed that the orders for posts and rails were given by Lakeman, and they were signed by him for Lake on account of J. and A. Anderson.

Mr Shepherd, manager for J. and A. Anderson, deposed that no written ordor was given for posts and rails. Mr McFarlane told him so. Ho also told him that he had an order from Lake and Beard, and was coming to J. and A. Anderson to see how Lake stood. Afterwards he said he had seen the Brothers Anderson, who told him that Lake and Beard were very good paymasters. McFarlane tried to get a written order, but Lake would not giro one. Cross-examined by Mr Joynt—l was in the company's employ before I became agent for J. and A. Anderson.

Re-examined—Harry Lake came on the works at the early part of July. Ho was up there once before. Lake and Beard kept a letter book with orders in it. It was not kept previous to July. I saw the letter book, but never saw an order on MoFarlane.

Mr McFarlane, recalled, said—l had an order from Lake and Beard in July for post and rails as per agreement. The agreement was a verbal one made in June. I did not deliver the timber till after I got the written order.

By Mr Harper—Michael Lake gave me the verbal order.

By the Court—l had an interview with Messrs Anderson in reference to the order from Lake, and asked whether he was a good paymaster, and received an affirmative reply. Counsel on either side having addressed the Court,

His Honor, in giving judgment, said it appeared to him that the case turned on the point of plaintiff's election as to which party he should sue, and he considered the authority quoted by Mr Harper on the subject quite conclusive. He must therefore return a verdict for defendants.

The Court then adjourned till eleven o'clock on Monday.