£3,000 DAMAGES CLAIM

Sun (Auckland), Volume II, Issue 434, 16 August 1928, Page 13

£3,000 DAMAGES CLAIM

GLASS-BEARING SAND DISPUTE OVER SALE Glass-bearing sand at Awanui, North Auckland, was the subject of litigation in the Supreme Court yesterday, when Mrs. Cecelia I/inis Kunst, the owner, claimed £3,000 damages from William Ravage Tate, alleging breach of contract in respect of purchase of the property. The plaintiff contended that as the result of negotiations with Tate she had broken off an agreement for the supply of silica to the Australian Glass Company, of Auckland, to her serious loss. The defence was that the option offered to Tate had never been exercised or that in any case it had been given to the Southern Cross Glass Company, Ltd., and that Tate was therefore not liable. Mr. L. P. Leary # said that Tate had agreed to purchase the 30 acres of sand for £5,500. Tate examined the sand, which he pronounced excellent. He told plaintiff’s son. Alfred Hynes, that he had bought the sand and instructed him to inform the Australian Glass Company to stop removing the mineral from the property. Mrs. Kunst had been receiving a royalty of 2s a ton from this company. She had sold 4.000 tons. Believing Tate to have duly acquired the option, business with the company was terminated. The plaintiff was always under the impression that Tate was buying for himself. Mr. Leary said it turned out that the defendant was connected with a company styled the Southern Cross Glass Co., Ltd., with headquarters in Christchurch. Cross-examined by Mr. E. H. North - croft for the defendant, Hynes from the witness-box denied that Tate had made it clear that he was promoting a company and that he had been offered shares in part payment for the sand should it be acquired. At the close of plaintiff’s case, Mr. Northcroft moved for judgment, on the ground that plaintiff had not made out a case against defendant, but had, in fact, shown plaintiff was disentitled to the relief asked for. The document of January 15, 1925, indicated an intention to accept the option, but was not an actual acceptance of it. Tate accepted, not on his own behalf, but on behalf of his principal, the Southern Cross Glass Company. His Honour adjourned to hear Mr. Leary’s argument in reply. TWO STRINGS TO HIS BOW

Replying this morning Mr. Leary adduced argument to refute Mr. North - croft's contention that Tate was simply an agent, and therefore not personally liable. The text of the option given by Mrs. Kunst held nothing to indicate agency by Tate on behalf of some principal. To exclude himself from liability Tate should hav» expressed his agency in such terms as to make it clear to the plaintiff that he was not personally responsible under the contract.

Counsel argued that even assuming Tate’s agency had been proved the defence had not considered the possibility of both agent and principal being bound. There was nothing to prevent a contractee from having two strings to his bow. There was no evidence that Tate had authority from Australia to effect any contract at all, Mr. Leary argued. In evidence the defendant Tate said he had held conjointly 15,000 shares in the Southern Cross Glass Company now non-existent. He now held 15,000 shares in the glass company operating at Mount Somers. He held no official position with the firm. (Prqceeding:) _