SUPREME COURT, HOKITIKA.

Hokitika Guardian, 24 June 1921, Page 3

SUPREME COURT, HOKITIKA.

THURSDAY, JUNE 23. i (Before His Honor Mr Justice Mcrdman). j AFTERNOON SITTING. The Court resumed at 2 p.fn. \ SUIT. j William Herbert Robinson, of Christ- ; church, timber agent v. Robert Whiley and Margaret Whiley, of Kokatahi, sou millers, a claim for £2550, for breach of. agreement, in connection with the alleged sale of the output of . defendants sawmill to the plaintiff. j Air Joyce, with him Mr Sargent, ap- ( poured for plaintiff and Air Alpers, i with him Air .Murdoch, for the defendants. | The following special jury of twelve ! v as empanelled : —Henry Sehwass, j Joseph Hutchison, August H. Schroder, | Vivian W. Bonar, Frederick Willoughby, Robert A. Detlaff, David | Bradley. John Cutbush, Durham R. | Dowell, Fred Ross, Robert Al. Kane, Herbert C. Key. ! Mr V. AY. Bonar was chosen foreman, j Mr Alpers said they hold there was ' no contract, that the parties were never ‘ agreed, and that the letter of March i 3rd signed conditionally upon ful- ; lor and further terms being agreed j upon by the parties, before accepting | the terms of the contraot. Mr Alpers also asked leave to plead j the statute of frauds if allowed to. Mr Alpers said be was going to prove that there were outstanding, terms discussed by the parties at the time of the signing of the letters, in order to prove there was no contract made. After discussion as to procedure Between Hs Honor and counsel Air Alpers opened the case for the defence. He pointed out that the ease was not a simple one. He would ask them, to find that Hickson went out to Kokntahi as the representative of Robinson and that the offer made was not to be binding unless a detail agreement was duly made later. Evidence was called as follows: Robert Whiley deposed he was a. sawmiller at Kokatahi and at the time of these happenings was in partnership of Mrs Whiley who bad some money in

the business and traded as Whiley and Whiley. Subsequently they had incorporated the business as Whiley Limited. Produced agreement to assign the business. Their hanker was the Bank of New South Wales, Hokitika. Had sold the output of mill from Sept. 1919 to Sept. 1920, to Mark Sprot and Co. Were getting an average of 15/- per 100, hut Mark Sprot paid rail to Greymouth costing 1/7. The price offered to be sold to Robirison was 17/3. 111 December, 1919, there had been no rise in price of timber. Remembered Mr Hickson in his office telling him he was not getting a high enough price. Never at any time had witness asked Hickson to endeavour to get a better price for witness’ timber. Hickson did not interest himself in his timber until March 4th. Knew Robinson was dabbling in timber interests, notably ihe Great Westland, but did not know him as a probable buyer of witness’ timber. Hickson came up

about dark and said he had an offer of purchase of the output of the mill, which witness read and then called in Mrs Whiley. She was present at the rest of the interview. He took it that Hickson came representing Robinson. He certainly did not come representing us. Had never at any time requested Hickson to find a buyer of their timber output. Knew Hickson was connected in a business way with some of the timber business heads. Hickson had approached witness and paid a cheque for £SO for an option over another sawmill that he had and which sum was later forfeited. Witness objected to signing the letter and Mrs Whiley also objected to the letter being signed. His objection was that the letter was not anything like full enough in detail for his satisfaction. There were several points that were not in the letter that he wished to he put in. It was on the distinct understanding by Mr Hickson that several other clauses should go into a detailed agreement that witness signed the offer. One was relating to congestion at the railway siding at Hokitika. It was agreed between Hickson and witness that after their yards became inconveniently full that all timber in excess of that should he railed on to j Grey, whether ships were available or I not. His reason for asking for this I stipulation was that in the past he had J to pay as much as 5/6 per thousand j for loading into trucks when the enr--1 cent cost should he 1/10 to 2/3, owing 1 to the inconvenience caused in stack- ! ing. Witness suggested to Hickson that Robinson should pay the excess cost Hickson said he could not agree to that. Hickson said they could get over that difficulty by having it railed to Grey and witness agreed to that,. It was decided that should be put into the formal agreement. The system of payment was raised by witness, who questioned Robinsons ability to pay. Hickson explained that Robinsoil would establish an account by letter of credit from Australian people and that he would be paid by cheque at Hokitika, without riiiv deductions. Hickson gave his own personal guarantee that the account should he right. He thought at the time that Hickson at the time was half in it. He was doubtful of Robinson’is ability. to pay and that was the reasoii he wanted Hickson’s guarantee. Told Hickson at the time besides these clauses there would he certain other details required insertion in the contract and he quite agreed. It was Hickson’s suggestion that there should lx> a detailed agreement. He at first objected to signing and only did so on the understanding that there was a detailed agreement signed sealed and registered. It was a condition of the bargain that he made with Mr Hickson. Hickson' appeared in a hurry to get away at the time.

AYitness said the original letter had a place for figures to he put in, hut this had been mutilated and Hickson had come to him next day to have a second one signed which was a CO W of the first one. *

On March 10th. Hickson came to him with the second letter. Before signing he added a proviso, that it was subject to a detailed agreement being signed within a month. lie explained to Hickson that the whole business must he finished within a month of the first date mentioned. There was never any objection from Robinson or Hickson as to his stipulation. Heard on 22nd. March that Robinson was in Hokitika and looked him up. Asked him about the agreement, and lie said: “Yes, Yes; that’s* all right.” Then discussed who should prepare tlm document and Air Pilkington was decided on. Air Pilkingtori’s evidence was almost all right. Robinson and witness took part both together in instructing him. Told Air Pilkington some of the terms Hickson and witness had agreed upon. Never agreed at any time to extend the term ; for a further twelve months First determined the proposal to go on with tin* contract about the middle of Afay. It was absolute nonsense that he dropped the contract because of a rise in price. There was no rise in price in two months from March 3. Air Robinson never took any exception to witness’ tag on the acceptance. His output had been 588,000 ft. for 10 month’s.

To Air Joyce—There was a dehenlure bond of £SOOO to Whiley and Win- ( lev in the new Company. The Cmpany has a capital of £2,000. ( Have no intention of evading their responsibilities. When discussing the price being paid in Hickson’s office in ' Doceinlier, did not authorise Hickson to j obtain a buyer for the output. When Hickson came out on March 3rd., after discussion, witness signed the offer, put- | ting in that the agreement was to he made within a month. There was not so much discussion at the second interview. The letter produced is not the original one lie signed. This was a copy that Hickson brought up the next day, he thought it was. Air Hitkson never stnted straight out that he was i the agent of Robinson hut he led him to j believe he was. Their mill worked out ! about 50 and 50 per cent of higher ! and lower class timber. Re-examined — Mir Hickson supplied i a copy of letter of first offer. Margaret Whiley deposed she was a defendant and wife of R. Whiley. She was present with her husband in Hickson’s office. Heard Hickson say they wore not getting enough for their timber. AA’as certain neither she or her husband asked Hickson to get them a better price. Their contract was current for a further 9 months. About .March 4th. Air Whiley called her into the office. Air Hickson was there. Was

present for the rest of the interview. Thought she was the first to question Robinson’s ability to pay for the timber. Whiley said there were not sufficient details and Hickson agreed. Discussing shipping Whiley said if thero was a 1 congestion, Robinson would not agree to 1 do so hut would arrange to send it on ito Greymouth. Hickson guaranteed that Robinson would pay cash against documents at the Bank of New South Wales at Hokitika. They had trouble ■as to payments in other contracts. Be • fore Mr "Whiley signed the letter, witness asked Mr Hickson if that was binding, and he said no, not until the detailed agreement- had been drawn up and signed. Hickson suggested a further detailed agreement when Whiley objected to sign the letter. It was a stipulation before AVliiley signed that there should lie a detailed agreement drawn up (Jtid signed, within one month. Her husband made this proviso because he did not want the matter to hang on too long. The time w" evening', about dusk. Was not present when the acceptance was brought out. Air Hickson Drought the letter from Air Robinson and they treated him as Air Robinson's representative. AVhen they spoke of Robinson, paying for the extra labor, Hickson said Robinson would not agree to it. To Mr Sargent—e timber llotv is being sent on to Mark Sprot and Co., They were getting T9/7 f.0.r., Hokitika, or 21/2 f.o.b. Greymouth. Her husband told AL Pilkington that he would not carry on, in Alay. Alet Mr Pilkington near Renton’s early in June and he asked to come and sign the engrossment, and she told him that Mr AVhiley had told him in Alay that the offer was off. To His Honor— Her husband stipulafcd that a detailed agreement should he made before he signed the letter of the 3rd. March. This concluded the evidence for the defence. The Court- rose at 6 p.m. EVENING SITTING. The Court resumed at 7.40 p.m, - Mr Joyce stated it had been agreed that the first notice of repudiation received by plaintiff was the letter written by Mr Pilkington on Aug. 10th 1920. ‘ AIR ALPER’S ADDRESS. Mr Alpers addressed the jury. He said th 0 defendant took none of the blame for the tangle. What they had to decide was—Did the Whileys and Robinson agree to anything, and if so what, find with Hickson. They were asked to try whether the two parties were ever ill agreement at all. Did the letter of 3rd March signed by AVliiley, and that of 10th Afarch by Robinson, contain an agreement or whether Air Whiley was induced to sign his name on the 3rd Alarch by representations mflde hy Hickson. They had to show flickson was not AVhiley’s agent, hut that ho was Robinson’s agent. The evidenc e showed that the two parties were not

in full agreement at any time. They ought to be satisfied that there was substantial conditions outside the terms of the two letters. He did not say that Hickson was giving evidence that he did not think was true, but he would say that though he might be a first class banker, lie had a very rotten memory. Were they satisfied that the two points, the question of cash at the Bank of New South Wales, Hokitika, and that of congestion of the skids at Hokitika, were part of the stipulations made prior to the signing of the offer of March 3rd. On the question of agency Mr Alpers referred at considerable length to the part taken by Mr Hickson in getting the letter signed by Whiley, and how under instructions of Robinson, Hickson had delivered the acceptance to Whiley and had his confirmation of its receipt. MR JOYCE’S ADDRESS.

Mr Joyce addressing the jury for the plaintiff said they had to say what was their opinion on the evidence that had been brought before them. Much had been said by opposing Council as to the evidence of Hickson, but be held that the evidence of Hickson was to be relied on ns the only person who was not interested personally in the outcome of the case. He held that when Hickson had guaranteed the payment for the timber, fliat Whiley accepted the statement of his hank manager as correct. Then as regard th 0 skid accommodation they (Hickson and Whiley) had come to an agreement as to the course of action. He held that the agreement was to bo carried out within a month, yet they found repeated letters passing between tlm two parties. On 3rd April the plaintiff’s solicitor had writon that there was a clear offer and acceptance and fie (counsel) countoil on those letters, which proved that the solictors of both parties were agreed that a definite contract had been entered into. Referring to tlm breaking up of the offer on 10th August, counsel put it as a coincidence that in August the price of timber started to go up, the contract was repudiated and that the Company was formed and a debenture was issued for £SOOO to Whiley and Whiley from the new company. On the question of agency, it was admitted by the defendant’s counsel that if it could not be proved that Hickson was Robinson’s agent their defence would fail. Robinson’s evidence was that Hickson was not his agent. There was no evidence at all to prove that Hickson was Robinson’s agent. In fact it was nil the other way, and tliat Hickson was the agent of the Whileys.

On the question of damages the evidence of tlm Whileys was tlinl tlm output for the year would be 70S,OdOft., and as Robinson stood to make a profit of 3s fd per 100 ft. the total of which being the amount of damages the plaintiff was entiled to if the verdict was in his favour. HIS HONOR’S ADDRESS.

11 is Honour summed up. He said tlii.s was n claim for damages for broach of contract. The claim for the plaintiffs rested on the two letters of 3rd and 10th March. It was alleged that the offer of output was accepted. If they had nothing before them except the two letters, you would come to the conclusion that a breach of contract had been made. This action was complicated that Mr and Mrs Whiloy sny they signed the offer and was accepted by Mr Robinson, but that there were terms entered into not in the contract and that there were terms to which they were never in agreement at all. The jury had to decide if there was any agreement at all. People negotiate and barter, and may never agree. It was said by the Wbileys that there were certain stipulations made that were never agreed upon hv the parties. That before the agreement should ho binding that a deed embodying all the details should be executed between tbe parties. It was for tbe jury to - decide of tbe parties ever! came to a final agreement. It was suggested that the letters on 3rd and 10th March did not contain all tho terms and conditions agreed by tbe parties. On tbe acceptance of the offer, was placed a stipulation by Wbiley for a further docu-

ment containing the details of the contract. If they decided that the terms of payment and congestion of the skids were essential to the contract, then the essential details were not all contained in the letters. They had also to decide as ‘for whom Mr Hickson was acting as agent. Hickson had said the Whileys had asked him to find a buyer for the output. This the Whileys denied. Then later Hickson had met Robinson, and after discussion Hickson had gone out to the Whileys with the letter in his hand, at the request of Mr Robinson. Why should he do this if he , were not the agent of Robinson. He also referred to the affidavit of Mr Hickson on Feb .7th, in which he swore that Whiley refused to bind himself to the contract until a detailed document was made. It was due to Mr Hickson to say that this statement he denied at a later date.

His Honor placed the issues befor e the jury for their decision, and the jury retired at 10 p.m. The jury returned at 11 o’clock to ask-for a direction and then retired again and returned at 12.7 a.in. with a verdict on the issues put to them as follows: THE VERDICT. I.—Was Mr Hickson the authorized agent of the plaintiff Robinson, for the purpose of making a complete and concluded contract with defendants for the purchase of their sawmill output? —Answer “Yes.”

2. —Was Mr Hickson the agent of the defendant with full authority to make a complete and concluded contract with Robinson, the plaintiff, for the sale to tin; latter of the sawmill output of the defendants ?—Answer “No.” 3. —Were the plaintiff and defendants in fact ever in agreement as to the purchase and sale of the defendants’ sawmill output?—Answer “No.”

4.—Did the documents dated the 3rd and 10t.li March, 1020, contain the whole of the terms and conditions agreed to by the parties prior to the 10th March, 1920?—Answer “No.” o.—Were any terms and condition* relating to the sale and purchase of tllb timber output in fact agreed upon bv the parties after the 10th March, 1920?—Answer “No.”

(His Honor said lie would put the question of damages in the following to: in. Ho would require an answer to Ibis issue no matter what the answers were to the others so as to save calling a jury together again in case the law points raised went against the defendants.) (i.—lf, in any event, it he finally decided on the is she and ns a matter of

law, that the plaintiff is entitled to judgment, and if any, the plaintiff is entitled to damages.—Answer .€l3‘J7 10s.

11 is Honor stated that on the findings of the jury the defendants were entitled to judgment.

Counsel for both sides formally moved for judgment, with second Counsel and as for a second day.

On Mr Joyce’s motion the question of the admissnbility of evidence objected to and other points reserved, were noted. His Honor said he would under rule 28(i, adjourn the case for further consideration, and reserve leave to both sides to move for judgment, the nonsuit point of Mr Alpers in connection with failure of plaintiff to pay cost* of discontinued action to lie reserved. 11 is Honor stated that lie had no doubt Imt that the evidence objected to was admissable.

Leave was granted to move for a ne trial, four days after judgment was d< live red.

IN CHAMBERS

Til the estate of Henry Morgan of Stafford (Mr Sellers) probate of the will was granted. In the estate of Edward McCormick of Kokatalvi (Mr Sellers), probat<> of the will was granted. In the estate of Janet McMillan, of Hokitika (Mr Park) an order was made for payment out of the estate for the maintenance of the daughter. In the estate of Richard S. Diedriehs, of Kokntahi, settler (Mr Park) an order for maintenance out of tho estate for the two children of deceased was made.

In the same estate (Mr Park) a motion for leave to realise estate was granted subject to conditions. In tho estate of Henry G. Diedriehs deceased of Kokntahi (Mr Park) an order was made that the executors pay tho legacies due to two infants to the Public Trustee to be held in trust for fhe benefit of the children. In tlm estate of Gerhard Henry Diodrichs, (Mr Park) motion for leave to realise the estate. Order made subject to conditions.

This concluded tlm business, and the Court adjourned at 12.20 a.in.