CIVIL SITTINCS.

Otago Witness, Issue 2894, 25 August 1909, Page 31

CIVIL SITTINCS.

Monday. August 23.

(Before his Honor Mr Justice William 1 :.)

GOF.LITZ V. KCBELIK

This was an e/"tion in which Hucro Gcrlitz cued Jan Kubolik for £3000 <laipa-«r<-s for breach of agreement to appoint plaintiff manager for defendant's Austiahan tour.

Mr W. C. MacGregor (instructed by Messrs Smiihson and Timaiu) and Mr Johansen for plaintiff, and Mr S. Solomon, K.C., and Mr Adams for defendant.

Mr Solomon asked that the rase might be allowed to wtan-d o\er until it should be mentioned later on. Negotiations for a settlement had been ponding for some little time, but a.s one party was at one end of xho world and the oth"r at the other end it v. as \cry diflicult indeed to arrive at a conclusion. Both the parties thought the proceedings should not be hurried, an<l hope-el there would bo no neecs-ity for a. trial at all. If a trial was necessary, another jury could ba called.

The R°gi«trar thereupon discharged the special jury called to hear the ca=e.

Mr MacGregor mentioned that two witnesses were present who had to go ay. ay next day, and he asked that their evidence might be taken by th» registrar. Mr Solomon a-scnted to this, and h.s Honor directed accordingly.

ACTION FOB D\M^GES

William Townley, of Otago Peninsula, farmer, sued Oliphant Denholland Fraeer, of Dunodin, auctioneer, for £200 darr.ag-e^ in respect of an allpgod blander. The rrtatement of claim set out that on June 23 la«t, at tho Cattle Yards, Burnfcidedefendant falsely and malicious!}' said and published of plaintiff the following wcrds concerning plaintiff Townley : •' You have taken a cow out of the yards that did not belong to you and was not bought here," meaning that plaintiff bad feloniously

stolen a cow; wherefore plaintiff sought to recover £200 damage* The statement of defence set out that defendant denied that he had at «-ny time falsely and maliciously so epoken or published th-e words complained of. If he had spoken tho words, th-ey were intended and understood to be lu&a as a remonstrance, and did not amount to defamatory matter. They were not intended to mean that plaintiff had feloniously stolen the cow. Mr Hanlon and Mr Irwin appeared for plaintiff, and Mr Hosking, K.C., and Mr Stilling for defenda-nt. Mr Hoskinp. after a short adjournment, 6aid counsel had been conferring together upon this matter, and these fo r the defendant had undertaken to make a statement. He referred to the allegation in the statement of claim and the defence set up. and said the following had been agreed upon: — "Counsel have conferred, and adviced the parties, who have agreed, that the matter *Jiould be disposed of as follows: — That the plaintiff withdraw the action, and that it be struck out, on the defendant paying the costs of the writ (£4 4s) and stating, as he now does, that the words charged as used were ' not intended to impute that the plaintiff had stolen the cow. They admit that Townley was right in his contention, and there was no justification for anyone saying that he had stolen a cow. The mistake on the part of the defendant arose through one man having considered ho had- bought the cow, whereas it was another. The remark made was not , intended ' to indicate that Townley had stolen the cow, but had taken it in mistake. It turned out he had not taken it at all, but that it was taken, by the man who had bought her at the auction." Continuing, Mr Hosking said he asked that the action be struck out.

Mr Hanlon said that plaintiff, under the circumstances, consented to the case being struck out, and would like him to say that he was prepared to ace-apt the assurance of defendant that he had not meant to impute theft. He was also glad to have the admission that no one could have suggested that thero was any intention on his, part to steal the cow. Under these circumstances the case might be struck out.

His Honor said the explanation was a quite reasonable one. Looking at the words in th© statement of claim he (his Honor) would have thought defendant had not intended to charge plaintiff with stealing the cow, although circumstances might possibly be produced in evidence to show that persons standing by attributed the stealing of the cow to him. The case was struck out.