FEILDING COURT.

Rangitikei Advocate and Manawatu Argus, Volume XXXI, Issue 8746, 21 February 1907, Page 3

FEILDING COURT.

'WEDNESDAY, FEBRUARY 20.

(Before Mr A. D. Thomson, S.M.)

In the following undefended cases judgments were given for plaintiffs:—J. S. Fowler v, G. Creighton, claim 11s, costs 5s Sutton and Co. v. Daniel O’Flynn, claim £8 7s Bd, costs 9s; John Prior v. A. D. Scott, ciaim £79 Os Bd, costs £llßs ; Sutton and Co. v. A. E. Moses, claim £1 18s 2d, costs 8s; Hoult and Son v. F. Adams, claim £3 10s, costs 16s. In the cases W. B. Gascoigne y. B. Poole and F. M. Day v. C. J. Cootes, judgment summonses, no orders were made. E.- O. Mackay v. J. B, Hills, claim £55 as commission. The facts as stated were ; Mr A. Mcßeth had a property for sale nearFeilding, which was offered by Mackay and Co. to defendant. The latter was willing to buy provided the vendor would take over in part payment some mortgages he held over some properties in Taranaki Mr A. Mcßeth went and inspected the properties, and agreed to accept the mortgages, and the sale or sales were effected. For the defence it was contended that there never was a question of the sale of mortgages, but it was simply a transfer of mortgages ns part payment for the laud. Plaintiff was nonsuited with costs, £3 15s. A prohibition order was granted against A; Wischnowski, by consent, for twelve months. Kenneth Campbell v. Hoult and Son, claim £lO. Plaintiff had paid £5 and had given an aged mare to Messrs Hoult and Son for a horse which he now stated was bought subject to trial. On trial the horse proved to be lame, and when ho desired to return it, Messrs Hoult refused to receive it back. The horse was foundered. G. E. Owen, veterinary surgeon, in evidence, stated that the herso was foundered in both fore feet and had been at least during five months. It whs in poor condition and was useless. For the defence it was contended that plaintiff was offered a trial before purchase but did not take advantage of it, that the receipt did not show a warranty, and that a warranty does not extend to defects easily discernible. It was also shown that the plaintiff had failed to press his claim for return of purchase money directly after the sale but had gone on using tho animal for some months and even had lent it to another person as if it was indeed his own. Plaintiff was nonsuited with costs. E. J. Webster v. Feilding Borough Council, claim £SO as bonus for satisfactory completion of work. Mr Cooper appeared for plaintiff, and Mr Prior for the Council, fc- Mr Cooper said tho partners in the case had agreed to ask his Worship to decide on the legal points, whether tho plaintiff could recover. The facts of the case were: tho plaintiff was em ployed by tho Council in December, 1905, but in August of the following year he had given in his resignation. The next step was the passing of a resolution by the Council, asking Mr Webster to withdraw his resignation and tho Council would grant him a bonus for extra services if they were satisfactory during the current year. The question they proposed to ask his Worship was, assuming that the conditions of the work entitled the plaintiff to a bonus, could ho recover at law ? £ Mr Prior said the resolution which was relied upon by plaintiff was of very little value, as a Council could rescind a resolution. He quoted the case, Reynolds v. Nelson Harbour Board. The general rule laid down in that case was, that any contract or agreement entered into by a corporation must have legal formalities attached in order to constitute a claim, whether or not the corportion had received any benefit from the services claimed for. He would refer his Worship to the Municipal Corporations "Act, section 188, as showing tho necessity for np agreement. It was there laid down that any contract entered into between persons and tho local body must bo under seal. An agreement on behalf of tho Council must bo signe d by two members of the Council on behalf of the local body, and by its direction, and no verbal agreement could be entered into which involved the payment of a sum exceeding £2O. This Latter kind of agreement, he contended, was for arrangement for tilings or services from day to day, and which did not admit of time for deliberation. In the case he had referred to, tho Chief Justice had ruled that, failing an express contract, was a bar to the plaintiff recovering. The Legislature had made a provision for the protection of ratepayers by requiring tho observation of certain formalities which involved deliberation and reflection on the part of the local body in the making of a contract. He contended, not only that the local body had made no contract to pay a bonus, but that it was not legally empowered to do so. In his opinion the only way the Council could have made an extra payment to Mr Webster would have been by way of an increased salary. He contended also from Chitty bn Contracts that there could be no legal claim for extra payment for»cfficient performance of services by a person who was bound by the terms of his engagement to perform such services. .In this case the Council had not admitted the satisfactory services referred to.

Mr Cooper, in reply, said he hardly thought the Feilding ratepayers would care to have their money protected by a dishonest defence, such as had been outlined. In this ease Mr Webster had resigned, and had been promised a bonus on its withdrawal, and he contended that the question raised was entirely governed by section 82, which gave the Council power to do certain things by resolution, such as the removal or appointment of officers and payment of salaries. In the case cited by Mr Prior, the architect was not a servant of the Council as in the case under consideration of the Court, and therefore the decision in respect to it could not apply. In any case bis client could rely on part section 183 of the Municipal Corporations Act, which empowered the Council to make a vertal agreement involving the payment of £2O. His Worship said he would take time to consider his decision.

H. D. Densham v. P. A. Margesson. Mr Carfcy for plaintiff and Mr Mclntyre for defendant. This case arose over tho construction of the Mangatutu road, in Kiwitea County. In 1898, Mr Margesson desired a road constructed to his property, but being the only ratepayer interested, he was under the necessity of applying to his neighbour, Mr Densham, to join him in raising a loan of £350 under the Loans to Local Bodies Act to complete the work. Mr Densham consented, conditionally on Mr Margesson giving him an indemnity, both for himself and successors on the land, that Mr Densham should not be called upon to pay any rats in respect of the proposed loan. The indemnity was given and steps taken to raise a loan over a period of 26 years at 5 per cent. Subsequently tho County Council advised the abandonment of this proposal in favour of one for a loan extending over 41 years at 3«• per cent. Mr Margesson having sold his land to Mr Taverner, went on avisit to England, and with the consent of Mr Densham and Mr Taverner, a loan was raked under tho new ■ proposal, but the whole of Mr Densham’s land was not included in tho special rating area_ as at first proposed. On the rate being collected, Mr Densham found himself compelled to pay his proportion, as Mr Taverner refused to bo bound by the indemnity given by Mr Margesson, he not having covenated to do so on the purchase of the land. Hence the proceedings on the indemnity. For tho defence it was contended that the loan had not been raised under the conditions on which the indemnity had been given, but was one agreed to entirely by Mr Densham and Mr Taverner. His Worship agreed with the defence that it was not possible to hold Mr Margesson liable on tho new loan. Ho thought Mr Densham had been careless n the matter. J udgment for defendant without costs.