SUPREME COURT. Saturday, 19th September, 1846. Before Me. Justice Chapman, AND A SPECIAL JURY. Civil Sittings. Fitzherbert v. Fyfe.

New Zealand Spectator and Cook's Strait Guardian, Volume III, Issue 121, 26 September 1846, Page 3

SUPREME COURT. Saturday, 19th September, 1846. Before Me. Justice Chapman, AND A SPECIA L JURY. Civil Sittings. Fitzherbert v. Fyfe.

This was an action to recover two hundred pounds damages for n on- performance of the conditions of what is usually termed a whaling agreement. ' The plaintiff had undertaken to supply the defendant with goods as per schedule, and to find money sufficient to pay any balance due to the men at the end of the season, which by the agreement and by custom, concludes on the Ist October. The oil and bone caught by the defendant, to an amount sufficient to cover the plaintiff's claim, was to be the property of the plaintiff as soon as taken, and the plaintiff was to send for it. The principal question was, what should be deemed an advance in the supply of cash required ; advances of cash being liable per agreement to a charge of 12$ p*r cent. Evidence was gone into as to the defendant having refused oil to the plaintiff's vet> sel, by which a loss was sustained by plaintiff, and that upon another occasion a vessel was chartered a second time in consequence of defendant not having filled her upon the first trip. A very long correspondence was also read to the Couit. The clause in the agreement respecting the advance was to the effect that the plaintiff agreed to furnish an amount of cash sufficient for the purpose of paying off the persons engaged in carrying on the said fisheries on or about the Ist day of October, or within a reasonable time after he should have received a written order from the said R. Fjfe, specifying the amount required for that purpose. That if this sum of money, which he was bound to provide, should be in the shape of an advance, that is to say — "provided the amount of cash so required at the end of the season, an d two-thirds of the amount of the supplies previously furnished to the said R. Fyfe, shall not have been covered by produce delivered to the said W. Fitzherbert, according to the rates hereinafter mentioned ; then such cash to be supplied at a charge of 2s. 6d. in the pound sterling for every pound sterling so advanced, the said sum of money to be placed by the said William Fitzherbert iv the hands of some trustworthy agent; to be delivered to the said Robert Fyfe at the risk and cost of the said Robert Fyfe. But if the said sum required at the end of the season shall not be in tbe shape of an advance, that is to say, in case the said Robert Fyfe shall have previously delivered, or shall have ready to deliver by the Ist of Sept., and have given notice in time to such effect to the said William Fitzherbert, sufficient oil and bone to cover (taken at the rates hereinafter mentioned) twothirds of the amount of the supplies previously furnished by the said William Fitzherbert to the said Robert Fjfe, and also the said amount of cash required at the end of the season, then the said amount of cash to be furnished by the said William Fitzherbert free of any charge for advancing the same, but at the risk and cost of the said Robert Fyfe in manner above-men-tioned." It was contended for the plaintiff that any monies which were required were to be paid at the end qf thexeiton, viz: Ist October, and that an earlier call for money entitled the plaintiff to charge for an advance, and that the notice to be given on tbe Ist September was to enable the plaintiff to send for oil and bone in time to realize before the time of payment. On the part of the defendant it was contended that he bad a right to put an end to the season whenever he pleased, and an equal right to call for the money, and that being teady to deliver oil and bone on the Ist September to the value of two-thirds of the supplies, and the full amount of cash required, he was not bound to pay for an advance; the sum required and paid was £660. . For the plaintiff it was also contended that the meaning to be attached to the words the Ist day of Octt.ber, or within a reasonable time after he shall have received a written order from the said R. Fyfe, specifying the amount required for such purpose, was a reasonable time after the Ist October, should the defendant delay to state the amount required until after that time, and on the part of the defendant that it intended any time whatever.

His Honor the Judge-stated the points to the Jury at considerable length, and observed that, in his opinion, the payment made on the Ist September was not in the nature of an advance. Verdict for plaintiff Fifteen Pounds. Mr. Ross and Mr. King were engaged for the plaintiff, and Mr. Hart and Mr. Brandon for the defendant. The case occupied the whole of the day.