SUPREME COURT.

Taranaki Daily News, Volume L, Issue 60, 9 July 1907, Page 3

SUPREME COURT.

' MONDAY. (Before j\lr Justice Button.) EMSUE v. BI'UIIANAN. liiis case was heard on Saturday, His Honor reserving judgment. The dealings out of which the case arose were these:—Wilfred Wylam huislie, now u farmer of Oakura, owud 1- 0. Kelsoy £IOOO, together witii £!>()

interest, uniler a second mortgage on some land in the Urenni district. Em ;- lie sold this property to Neil Jluclmnaii, fanner, o£ Waikato, subject to ihe mortgage. The first mortgagee sold the property and bought it in :tt the saie, consequently thfc second mortgagee, Kelsc.v, had to look (o the personal obligation of i.ills!i;>. J-iii-iii' under a covenant implied by the Land Transfer Act in cases where land is transferred sub-

joct to a mortgage claimed that Buchanan was liable. 11c, therefore, having [ 'Mil previously sued liy Kelsey for t'ie debt, sued Buchanan for ihe" aniuuat of mortgage aiid interest—in ;il •C 1720. Buchanan, in turn, claimed that he was indemnified by C 11. Buxton, of Wellington, by virtue of certain agieeiuents made with him. Buxton was therefore joined as a third patty, livixton also repudiated the liability, llis defence was: (1) Tint oil Kebniarv 13th last he leeeivcd a deed of release from Emslie, freeing Buchanan, and consequently himself, from liability; (■>) ihat a previous action brought by Ems-

"um.uian and been discontinued, and plaintill', having failed i 0 pay the costs due on discontinuance ot the action, was debarred from bringing a second notion. By way of reply 10 this defence, Bmslic claimed: (1) Thai bath the release for Buchanan and the discontinuance of the previous action had been obtained from him by Buxton by means of misrepresentation. (2) '.that, even if the release were not obtained by misrepresentation, it was not effective, since it contained 110 appioI'riate operative words. (3) That tin discontinuance was arranged by agreement of the parties, and that thereiors no costs wcie payable, as alleged. Mr Hutclicn, with Mr Quilliam, was counsel for Enislie, Mr Johnstone for Buchanan, and Mr Spence for Buxton. MOXm'lOKli v. PARKIN AND OTHERS. A claim for .t.'iUO 10s for breach of agreemcHt was brought by John Cecil Monte/iore, contractor, against Thomas and ltoy Parkin, of Fitzroy, and C'lhs. Kingdon, of New Plymouth. Mr T. H. Wostown and Mr Shailcr Weston, ct Wellington, appeared for plaintiir, and Mr Johnstone for defendants. The statement of claim alleged llut an agreement signed' 011 February 7th provided that plaintilt was to deliver 011 lailway trucks at Smart Road railway station all tile boulder stone necessary for the completion by defendants of a contract for metalliii s certain streets in ilawera. The trucks were to be provided by defendants. The agreement was entered into subject to a writ-

leu condition that defendants were to Ibe entitled to purchase not more tli,m :>OO cubic yards of boulder stone cr broken metal from other than tin; plnintill for the completion oi' the contract: that it was an implied term of that agreement that defendant would complete the contract with the Hawera Borough Council; or iu the alternative that defendants would not do or omit to do anything by which such contract should be rescinded or taken out if their hands by the Hawera XioroiHi Council. The amount of stone to have (>eeii delivered by plaintiff was at least 4000 cubic yards, and by the contract with the Hawera Borough the stone w is to have liccn delivered by April 301 h. The plaintiff made preparations for delivering the stone at Smart Road station, and was always ready to comply with the terms of the agreement. Defendants never provided the railway trucks at the Smart Koad station, had allowed their contract with Hawera Borough to be taken out of their hands, and had refused to carry out theiif contract with plaintiff. ' Th? plaintiff consequently had lost the sale of the stone: his horses and men had been kept idle, to plaintiff's great loss; he had been deprived of the profit of the contract, and had otherwise suffered severe loss. Therefore 1300 10s Jaiur ages was claimed. i The defence was briefly that, the Hawera Council having rescinded its contract, defendants did not "require" any boulder stone from plaintiff, the agreement providing that 'plaintiff should supply as much boulder stone ri« defendants would "require to carry o:it and complete" their contract. Inconsequence of tile rescission of n. tract, it was unnecessary for I - t to provide the trucks. Defendants denied that there was ;in implied term in the agreement such as alleged by plaintiff; and, as an alternative dcfeh'.i.yj, that, if there was such an implied term, then it was also an implied term that the carrying out of such contract l y defendants was conditional on defendants being able to obtain trucks through the Uaihvay Department. Defendants claimed to have carritd ant their contract. Mr T. S. Weston outlined the eai-e for plaintiff. The damage claimed £3(io 10s) was less than had actually bee.u sustained. He submitted that plaintiff's case was not affected by the inability of defends s to get trucks. It was not reasonable to suppose that it was intended by the agreement that Montetiore should be expected t|> kc.'p his men and teams ready for the work unless defendants intended to receive ,the stone. The obligation of defendants was to buy from plaintiff all the [ stone they required to carry out their contract. Otherwise the agreement would have no meaning. Evidence in support of the claim, and counsel's opening address was given by plaintiff Montetiore, John AlePhcrson (lJorough Foreman, llawera), K. H. Cameron (contractor, .Stratford), and A. A. Pickett. For the defence A. 11. O'Loughlin, (Xew l'lyinouth). A. li. Palmer (engineer and surveyor), (!■ T. Murray (district road engineer). Kdgar U. ISayU. contactor, and l!oy Parkin. olio of the defendants, gave evidence. Mr Johnstone applied for a nonsuit. Counsel addressed at colldderaMc length. IN DIVOKCJi. ill' yuilliam applied for a decree absolute iu the petition for divorce <J Amelia M. Taunton against Lollard M. Taunton. The application was granted, aud petitioner was granted custody of the children. Mr yui'li.mi reserved I lie light to apply again f< r maintenance of tiie children and c..si-. Decree absolute, with custody of children and leave to apply for maintenance, was granted on Air Qui'linni's application in the case of Klizilcth l'\ dc Silva and .Itilins dc Siha. Mr llutc'iea appeared for respondent. ASSESftiMKXT OF COUDU'JU,. His Honor gave judgment on the appeal of the executors of the late J. Paul's estate against the assessment of the Commissioner of Taxes on the goodwill of the lircwery iu the estate- The assessment was .OXHKI. His Honor remarked tint the goodwills of lioteN and lirewerics ,[ iu have a -riling \ahie thai was nliuo-t unique. The wit-

nessea tor appellants appeared m reekon liii' Yiihio of tin- goodwill on iiiu liypotlicLical basis of one year's prolits. and not iiiic of tll.'in on a praetieal estinl ;tv oi iln* va'ti'- of Hit' 1 i'tj lilt' other ll.ltlll [ill' Witnesses l'"!' uurespondent Department lia.l c"i:>iii ;i 1 .ll' experience ill ihl' -I'liillLT II SiK'" fiooijwills. Tllf po--i!-ility oi no-lii/fll-e carried iu ilie district would not. in lii- tioiini's opinion. allVci tin' selliu;! v.ilnc. Ho therefore found Ui.it fciie evidence for till' respondent was more to lie I'i'lied on than thai for appellants, tins was not a cam- in which he should feel ju-rilivd in frying ;o strike a lialbetween tin; values as estimated liv tlio two parties. The witnesses for tlic Department gave clear and delinite testimony, ami not one of liiem valued the goodwill at less tlian CiioiiO. j'ile

ajipi'al wa.i theivfoiv di-minsrd. CJ. nwts. Oui'i (<■(•« iirnl witness' Mtjvtt-lii'rt-lifiiig allowed. IN CllAMlilil?*. ll' !-;>lu'lla Pollock, Ail orili-r was mule j;raiiliiy k'lleis ol adnniii>u*a' iv«u lo ;suu!i I'm' lu«K> of Mli'alMrd. li'ttll kcc|>cr, widow* i or dm'usiid-. and with an onicr di,],"'! with Miii'iii's. Mr •Inliiistoni' ;i|> j,! irrd in -ii|>|!"i't <>f ('to ap|ilic,i(ion. I Ui' Thomas (lood. oi' Ihnvi'i'a, dci-vi -cd. X'ruljab; iu tlus will was gran**

to ItaiTV Edward Good, William ! Good, Alau Good, and llugh M. Goo: the executors named in the will. JVJ Quilliani (for Mr Capital) appeared * support. He the esfate of I'Jiilip T. Prisk, lat of tutaraimaka, fanner, deceased. A order was made giving Uie administra tor leave to sell the estate. Mr. Ken appeared in support of the motion. In Finlay John McLean v. Georg. Livingston, Mr Hntchen appeared fo

; plaintill. Tllerc was no appearance liy i or on M.alf of defendant. A motion an 01 ' (1, ' r was ma Jo adopting the report of the Register, dated tl lo ,'ilst ALay, 1007. -U'Lean v. Livingston. H,-. Hutchen appeared in support of an application

for an order to make absolute clur«iiir or.k.i- dated the Ist June, mi fri'ipf 'I" debts due or accruing dm; to the defendant herein "by Jes<ie payment of ,t2;i 8s 8d and ,t'2 17s costs of the order. 'Jhc churning order was made absolute. " Mo cstitc of James Paul, decease), and between W. C. Newman and I<\ w' I'lnintiff*, and Alice l'aul and others, defendants. Iteturn to originating summons of l;!th .June, 11)07, for an order sanctioning the carrying on by tile said trustees of the business in which James Paul was engaged at the 1 time of his death. llr (Juilliam for the ' plaintiffs; no opposition. An order was s made sanctioning tile carrying on of the business by the trustees for two years lrom date. Leave to apply agiin if necessary. ' ' 1