WOOD-CUTTERS’ DISPUTE.

Otaki Mail, 6 March 1922, Page 3

WOOD-CUTTERS’ DISPUTE.

| PECULIAR LEGAL POSITION. I At the sitting of the Otaki Magis- ■ trate’s Court on Thursday, Mr J. L. | Stout, S.M., gave judgment in the case j of Alfred Frank Cole and Edward John ! Conway, of Waikanae, contractors, versus Frederick Charles Wilson, of Waikunae, woodcutter. There was also a counter-claim by defendant against i the plaintiffs. | Claim and Counter-claim. ~ In their statement of claim, plainj tiffs claimed the sum of £lls 7s 9d on ; the following grounds: (1) By an ! agreement dated February 2nd, 1921, ! defendant agreed to sell and plaintiffs to purchase 94 cords of firewood, also certain plant on the property of R. J. I ; Port, Waikanae, for £l4O, of which the sum of £25 was paid by the .plaintiffs I as a deposit, and the balance of £lls ' was payable to defendant on or beforo

February 9th, 1921; (2) In assessing the .purchase price at £l4O, credit was given defendant for £4O 18s (id, representing wages owing by defendant to plaintiffs at the date of the agreement; (!!) The purchase price was therefore £IBO 18s fid; (4) the plaintiffs were induced to cuter into the agreement by representations of the defendant that the State Coal Department, of Wellington. would purchase the whole of the 94 acres of wood comprising both barrel wood and branches, at 58s per cord, and further that Samuel Brown, of Wellington, would accept delivery of firewood at £2 per —cord; (5) At the time of making such representations defendant had received notice from the State Coal Department refusing to accept delivery of firewood which contained branches, by which n considerable portion of the wood was rendered unsaleable, and further had received , notice from Samuel Brown refusing to | accept delivery of further supplies of j firewood; (6) By -Teason of these representations, the plaintiffs rescinded | the agreement; (7) Plaintiffs therefore claimed return of the deposit £2;>, wages due on February 2nd, 1921, £4O 18s fid, sundry other amounts totalling £LP 4s 3d, and travelling and legal expenses and loss of work £3O, total £lls 2s 9d.

Defendant counter-claimed for £lls, balance of purchase money due by plaintiffs, and a further sum of £SO as damages suffered by defendant through the default of the plaintiffs.

"Court Has No Jurisdiction.

Til giving judgment, . his Worship said: “1 am of the opinion that this Court has no jurisdiction to hear and determine this action. It is either an action for rccission of a contract and for restitution, or an action for restitution on a contract which it is claimed lias been'cancelled and for damages for fraudulent misrepresentation after inducing the contract. Recission must be mutual and here there was at most a cancellation owing jo non-perform-ance that is the non-performance has been treated bv defendant as a breach, not as a mutual recission. It cannot therefore be called an action for breach of contract, and that is the only jurisdiction in contract that this Court can exercise. I pointed out the difficulty months ago. long before the actual hearing, aDd still consider it insurmountable. The defence to the counter-claim really is one alleging fraudulent misrepresentation, and concellation depends upon the plaintiff’s success in their action. The counterclaim, in view' of the letter of defendant’s solicitors giving notice of cancellation cannot succeed. Defendant’s remedy could only be damages for breach of contract and these are not claimed. If the counter-claim had been for damages for breach then plaintiff’s answer of fraudulent misrepresentation inducing the contract would arise. I doubt ■ if this Court could deal with that 'defence as that is equitable relief*. These matter’s are o'fijes on win ch HU' Supreme Court'alone lias jurisdiction. I must therefore order the action and counter-claim to be struck out, each party to pay their own costs.”

Messrs Harper and.Atmore appeared for plaintiffs and Messrs Park and Adams for defendant.