RESIDENT MAGISTRATE'S COURT.

Nelson Evening Mail, Volume XII, Issue 118, 21 May 1877, Page 2

RESIDENT MAGISTRATE'S COURT.

[Before L. Bao_u>, Esq., R M.] Hia Worship gave judgment this morning as follows: — Whits v. Wallacb. Iu this case the plaintiff White agreed to lst the Wakefield Arms Hotel to the defendant for a term of something less thau ! three years. The agreement was a parol j one, the conditions of the hiring being written | upon a slip of paper by the plaintiff, shown to the defendant, and agreed to verbally by him. One of the conditions was that the defendant should buy beer from no other person than the plaintiff. Defendant entered upon possession of the premises, and paid six months rent. This action is brought to recover damages for breach of the contract above mentioned. It is contended by defendant's counsel, first, that the contract is in restraint of trade, and therefore invalid. 1 intimated before that the cases did not support that view, and that although such con- ' tracts have been censured and disapproved of, they have never been held to be invalid. Then it is said this agreement ia within the Statute of Frauds, and ought to be in writing. But the term being for a less period than three years the contract need not necessarily he in writing. The defendant took, and holds, possession of the premises, and has paid six months rent. From that and other, evidence I am satisfied Jthat an implied tenancy from year to year has been created upon the terms . agreed upon between the parties so far as they are applicable 'to and not inconsistent with a yearly tenancy. (Doe d. Thomson v. Ansly 12 A. and E. 476; Doe d. Rigg v. Bell, 5 T. R. 471; Braithwaite v. Hitchcock, 12 M. and W. 494; Martin v. Smith. 30 L. T. R. 268.) Aud such a contract being implied from tbe circumstances and not expressed in writing is not necessary to authenticate it. (Beeaton v. ger 4 Bing 309). Athough there are no very recent cases relating to contracts between brewers and publicans, the principle by which the Courts have been guided in construing these agreements is clearly stated in some of the older cases. It is this— That where a brewer hinds his tenant to deal exclusively with him for beer, the onus is on the brewer to show that he supplied the tenant with good marketable beer, such as hia customers would drink, and that if the brewer fails to supply good wholesome liquor, the publican will be quite at liberty to^ get good beer elsewhere, and the brewer will recover no damages whatever for breach of contract (Holcombe v. Hewson, 2 Camp. 391 ; Jones v. Edney, 3 Camp. 285 ; Thornton v. Sherratt, 8 Taunt 530) The learned counsel for the plaintiff suggests that j in view of the great increase of brewers' houses ! and in the trade generaUy, the Courts nowadays would take.a more lenient view of the responsibilities of the brewer. I doubt it very much, as all the old decisions were founded upon the necessity of protecting the public from the risk of drinking deleterious liquor. , However, it is idle to speculate here as to ) what the superior Courts might do. I am bound by the law as laid down in the old cases, until it is overruled by competent authority. On the whole, and after some consideration, I think the weight of evidence is with the plaintiff, and that he did supply a fair marketable beer such as is ordinarily found in the neighborhood. He is therefore entitled to recover £10 and costs £5 19s. THB WRONG HORSB. " Warren v. Webby.— This was an action to recover £50, being the value of a horse wrongfully detained by defendant £45, and £5 damages sustained by reason of its non-de-delivery. Mr Pitt appeared for plaintiff and Mr Acton Adams for the defendant. The ease was of a peculiar character, arising out of the faet that Mr Augarde had been authorised to find a purchaser for a horse belonging to the plaintiff, then running at Mr Brown's farm, whereupon he sold one running at Mr Webby's. Webby gave up the horse on an order from Augarde, who, p'aintiff stated, was not authorised to give such order. The evidence was as follows*.— Henry Warren : In March last I had a horse at Webby's. I also had another which I wished to sell. Augarde met me and asked if I had a cart horse for sale. I said, yes. It was at Mr Brown's farm, Waimea East. I told him to go and get an order from Mr Ball to show the horse and give a trial, and if it answered, to come back to me and I would give an order for the delivery. I did not authorise him to give an order for the horse. I did not mention to him the horse at Webby's. Augarde came back and said, "I've sold the horse, my boy." I replied that I did not think he had, for the horse was still at Brown's. I thought no more of it until a few days after I heard that Webby had given up the horse' at his place on Augarde's order. The man who went for it, he said, showed him a receipt for the money. I had twice been offered £40 for the horse and refused. Cross-examined: I deal a good deal in horses. Augarde has sold horses for me before, but I have always received the purchase money for them. I told him when he asked me if I had a cart horse for sale that I had one at Brown's and that he was to go to Ball's for au order to show him, I never mentioned the horse at Webby's. I told him I that if the horse suited the purchaser I would settle with them and give an order for it. The horse at Webby's used sometimes to be at Ball's. Webby had asked me to hire the horso to him for six days, hut I refused to do so, but said J would lend if to him. Augarde sent Webby to me afterwards offering me £35 for the horse. I refused to take it. The horse was one of three that I bought from Sutton. I can't say exactly what I gave for them. It might have been about £40. The horse was four year* old when I bought him, and I have had him over a twelvemonth. I was offered £40 for the horse by Mr Dolamore who bought another from me at the same time for £45. William Sutton j I was present when Warren was offered £40 for the horse. I consider that was about its value. Cross-examined: If I were a buyer I might not give more than £35 for it. This closed the case for the plaintiff. Mr Acton Adams argued that Mr Augarf e was Mr Warren's agent, and that the fault lay with Warren who should have been more particular in instructing his agent. He further stated that he shoutd prove £35 to be the full value of the horse. H. J. L. Augarde : I have sold a good many horses for Warren. Early in April O'Malley was a purchaser of horses, and I went to Warren and asked if he had any for sale. He said he had one at Ball's at Richmond, and told me to sell him for £35. I said I could not go myself, but would send O'Malley np to look at him. He said if the horse was not at Ball's,, he would tell him where he was. On the following day I saw O'Malley at Allington, and he offered me £30, but I said I could not take less than £35. He was on his way to the Grey with a ' lot of " right " horses, and rather than wait any longer he gave me the £35. I told Warren the next day I had sold the horse, and he never demurred to it until some days after. O'Malley was not much impressed with the horse, and seemed to look upon it as a dernier resort. I offered Warren the £35 I received, but he refused it. Cross-examined : Warren did not tell me that if the horse suited, the purchaser was to go to him to conclude the purchase. I sent O'Malley to Ball's to see the horse. John Sutton.* I knew the horse in question. I should say he was worth about £31 or £32. Thomas Brown and Harry Ruffell valued the horse at £35.

Edward Webby : i borrowed the horse from Warren. On receiving ah order from Augarde I delivered the horse to O'Malley. I have since burnt the order. I wouldn't give £30 for the horse. He was strong -but stupid. This concluded the evidence, and counsel having addressed the Bench, his Worship said he could not but regret that the defendant should suffer through a series of misapprehensions and mistakes, but it was quite clear that the plaintiff had a right to recover. True, Warren had not clearly described the animal to be aold to Augarde, but he had given him clear directions as to where it was to be seen. The purchaser was to go to Ball's, but there was no evidence whatever that he had done so, Bnd it was not shown how he got to Webby's. Augarde, too, had never seen the horse, but acting upon O'Mal ley's statement that he had seen j a horse of Warren's at Webbey's,Jhe gave an order for the delivery of that particular animal. The plaintiff swore that the horse sold was not the one he to dispose of, and that was the stiff point tbat the defendant had been unable to get over. The order of the Court would be that the horse be returned within two days, failing which defendant, to pay "£4O, being the full market value of the horse, and costs £4 19a. Action for Wages, &c. Fletcher v. Pattie.— Action to recover £22 8s 6d, namely, £9, ine month's wages as master of the cutter Maid of Italy ; £9 in lieu of notice; and £4 Bs6dfor legal expenses incurred by plaintiff for carrying passengers, in the Maid of Italy without a master's certificate^ passage money for such passengers being received by defendant. Mr Pitt appeared for the plaintiff, and Mr Acton Adams for the defendant. The hearing of the case did not commence until two o'clock, and after the plaintiff's evidence had been taken it was adjourned until Friday . •a — Mj, IJM,'_„ i 'i ■ ....... u ! ii.; , w