SUPREME COURT

New Zealand Times, Volume XLVI, Issue 10609, 7 June 1920, Page 8

SUPREME COURT

RESERVED JUDGMENTS MR JUSTICE SALMOND ON CIVIL CASES. A number of reserved judgments in defended civil suits were delivered by His Honour, Mr Justice Salmond in the Supreme Court on Saturday. A TRADE-MARK CASE. On May 29th, His Honour heard the motion of the Lodge Sparking Plug Company, Ltd., for an order directing the_ registrar to proceed! with an application for the registration ' of the word "Lodge” as a trade-mark in connection with the sparking plugs manufactured by tho company. Being a surname, the word Lodge could not be registered as a trade-mark without an - order of the court.

_ Hia Honour remarked that he considered the affidavits filed in support of the application were sufficient to show that tho name Lodge had, by actual use as a trade-mark in New Zealand, become distinctive of the plugs manufactured by the applicant company. The court therefore ordered the registrar to proceed wdth the application. , The company was instructed to pay £3 3s costs 1 . At the hearing Air Treadwell appeared in support of the application, and Air Prcndeville for the registrar of patents. RECOVERY OF DEBTS. His Honour gave judgment in the appeal on law and fact from the judgment of the Magistrate’s Court m tho action of _ Helen Mary Stevens against Maggie Stewart Oswald, as the executrix of the will of her deceased husband, James Oswald, The claim, said His Honour, was for the recovery of_ certain debts alleged to have been incurred by the deceased, in respect of some items tho decision of the magistrate was in favour of the plaintiff, and in respect of other items in favour of the defendant. At the_ hearing, counsel for the appellant intimated that the appeal would be limited to a single item, namely, a claim for the sum of £3O, the price of a stack of hay alleged to have been purchased by the deceased from the appellant on April 11th, 1918. On March 31st, 1918, tho deceased James Oswald leased from the appellant ■ a certain farm, of which he took possession on April 12th. There was standing on the property at the date of the lease a stack of hay belonging to the appellant. According to the evidence of one witness who had acted as appellant’s agent in the • matter of the lease, the deceased, on April Hth, purchasd the hay from • the appellant for £3O. .It was not disputed that the hay remained on the farm and. was used by tho deceased, and that it had been paid for. Evidence had been .given by tho defendant to the effect that when her husband was negotiating for the lease of the farm, appellant’s* agent had .said he would allow, her husband the hay, as there was no green stuff on the farm., The •magistrate bad accepted the evidence given by the defendant and her daughter as sufficient to - rebut the evidence afforded by the written agreement of tho deceased to purchase the hav. His Honour was, however, unable to take the same view of the matter. The lease signed on March 30th, though containing detailed provisions as to tho terms of the tenancy, bore no reference to the stack of hay. Oswald was himself in the best position to know whether he was or was not entitled to the hay'withou t payment. He agreed on April 11th, before taking possession of the farm, to buy and pay for the' hay, and his executrix was bound, by that agreement. His Honour therefore allowed tho appeal so far as it related to tho claim,of £3O, as the price of. the stack of hay. Judgment must be entered in the Magistrate’s,Court iu favour of the plaintiff for the sum of £3O . in addition to the amount for which judgment had been given. Mr T. Noave appeared for the appellant at the hearing, and Air O. Beero for the respondent. A LAND DEAL. Id tlie case of Ernest James Scelln v. William Henry Bearman and bin wife, E. L. Bearman, Mr H. B. Webb appeared: for the, plaintiff, and Mr T. Neave for the defendant. ’ This was an action, said 1 His Honour, by a purchaser of land praying for a declaration tbfft a contract of sale had been validly rescinded by him on tho ground of fraud, or, alternaitdvbly, On tho ground of innocent misrepresentation on the part of the defendants, and further, asking for tho return of iltho deposit damages, and such further relief as the plaintiff might bo entitled to. Ho found) that tea husband was not a party to the contract and that no relief could bo obtained against him. Mrs Bearman was the sole owner of the property sold. Thb allegation of fraud had not been established. Mrs Bearman had sworn that a her she made- the . reprosontatiru m question and entered into the contract, she believed that the term of th.; mortgage on. tho property had not espned. but had. still) about tour years' to ri.ii. Her evidence on that point had not been rebutted. 'lho plaintiff's case must therefore bo based on innocent misrepresentation. It had been contended on Airs Bearman’s behalf that she made no positive representation as to the duration of .the mortgage, hut merely conveyed to the plaintiff and his agent the informal!ion on that point which she had herself received from a Air b anning. Mrs Bearman had definitely committed herself to tho precise etatememit of fact vhav the mortgage had four year* to run. Tins statement was admittedly erroneous, the mortgage having been already overdue at . the date of tho contract. Ho was satisfied that that misrepresentation was material, that it was accepted as correct by the plaintiff, that it induced tho contract, and that it was made, however innocently, with intent that tho plaintiff should act upon it. Very shortly alter the date of tho contract the plaintiff had caused tho title to be investigated by his solicitors, when the misrepresentation was discovered.

His Honour said ho was of opinion that tie contract was voidable by reason of this misrepreeontation. Tho plaintiff waa entitled to a declaration to that effect, and also a refund of the deposit of £2S paid to him by Mn Bcarman. Ho could not claim damages but was entitled to recover the costs of the investigation of title. Tho plaintiff would recover from Mrs Bearman tho costa of the notion on the lon est ecalo, with disbursements for witnesses’ expenses, otc. As to the defendant, William Henry Bearman, judgment would be in his favour without - costs. APPEAL DISMISSED. 'Pho appeal of George. Doughty and Company against the decision of a magistrate, in their action against the

Shaw. SaVill and Albion, Company, Ltd., was dismissed. Itte". appellants (hipped on the' Matatua' for • carriage* bo New Zealand a case of boots. Oh arrival at Wellington the . boots were found , to, be damaged extensively ;by ' the;, chtran-' of some form of spirituous liquor. It was also found that pillage bad tqken place. The respondent company 'admitted liability for the., pillage, but .denied liability, for damage due to the eoakage of liquor, and with this view the.court agreed. ■ Atttfce hearing Mr D. S; Smith appeared for appellants, and Mr M. Myers for respondents. BREAOH^aFoONTRACT. In the case of Dalgaty and Company and ■ Frederick Brittain Lowes against Harold William Brown ' and George Neich, a claim for £4Bl 9s for breach of contract in .respect to’ the sale of sheep, judgment was given "for Dalgety and Co.. Ltd., against, the two defendants, for £199 18s, 10d. .Before the bearing of the case the sheep were resold, and the claim was reduced to £199 18s 10d. Mr C. T. Skerrett, K. 0.. with him Mr A- Fain, ropreeented plaintiffs, and Mr ,D V M„ Findlay the defendant*. .... . , •