SUPREME COURT.

Taranaki Daily News, 8 December 1917, Page 2

SUPREME COURT.

YESTERDAY'S PROCEEDINGS. The quar'jrly session of the .Supreme Court at New Plymouth were continued yesterday before his Honor. Mr. Justice 'Edwards. ■IN 'DIVORCE. In the case of Ellen McCracken (Mr. J. H. Quitnam) v. John W. McCracken, a petition for a dissolution marriage, as there was no evidence to corroborate that of petitioner other than a letter from respondent admitting the grounds for the petition and intimating his intention not to defend the proceedings, his Honor said he could not grant a divorce on the evidence given, as it would amount to a divorce ,by consent. The judge said he could not make such a startling innovation on the marriage law without conferring with the other judges. Mr. Quilliam' said he could procure evidence from Whakatanc to support petitioner's claim. There was also evidence that the respondent was the father of illegtimate children* It was agreed in the meantime that the case sliould stand over. Leonard L. Smith (Mr. Quilliam) petitioned for a divorce from Mary 0. Smith on the grounds of misconduct with Wm. John Wood. Evidence was given bv petitioner regarding his wife leaving home and of his requests that she could return. He also detailed her refusals to come backhand hiß ultimate discoverv of her misconduct with co-respondent a'i Wanganui, in consequence of which he had instituted the present proceedings. Minnie WJcks gave evidence of respondent living with co-respondent under the name of Mrs. Woatl at her mother's boarding-house in Wanganui. His Honor gr,anted a decree nisi, giving petitioner custody-, of the children and allowing costs against co-rcspondent.. CIVIL BUSINESS. ANDERSON v. REID. In the ease of Anderson versus Reid, a claim in respect to certain royalties on the sale of milking machines, which I ■was commenced on Thursday was continued yesterday, Mr. J. ft. Reid. Iv.C;.. with him Mr. A. 11. Johnstone appeared for plaintiff and Mr. C. B. Morrison, K.C., with him Mr. T. C. Fookes appeared for; 1 defendant. I The examination of the plaintiff was I continued by Mr. Reid. ' ' I Mr. Morrison submitted witness to a ] searching cross-examination involving a fercat many technicalities respecting company law, and also plaintiff's relations with the company alleged to have been formed and with the defendant. Plaintiff was shortly re-examined by Mr. Reid. During the process of the cross-ex-amination the judgj made some somewhat severe comments upon the conduct of plaintiff as a solicitor in his relations with the syndicate alleged to have been formed. Mr. Morrison then moved for a nonsuit on the ground that the particular j agreement was not carried out but some other agreement. Plaintiff's evidence j also was not sufficient warrant for a \ cause of action. Mr. Morrison asked to be allowed to enter a pica that as the agreement relied upon was not in writing it could not be enforced under the Law Practitioners' Act. This was a non-suit point as well as a matter of defence. He also urged that the agreement was without consideration or was rescinded in consequence of failure of consideration. The promise relied upon was not one which by law was implied as flowing from past ; considerations. The alleged agreement was between a promoter and a vendor to the company and was not on the evidence, disclosed to and agreed to by the parties entitled to notice of it, and that no action could be maintained on an agreement as (between the parties to it, beI cause the agreement entered into Tjy the parties was in conflict of duty to the 'company to be floated. Mr. Reid objected to the addition the plea under the Law Petitioners' Act on tho ground that no- notice had ibeen given of the introduction of such a plea in the defence. His Honor allowed the addition of the plea. Ths decision on the motion for a nonsuit was reserved and the case for the defence was proceeded with.

The statement of defence admitted that Reid held the letters patent re- [ ferred to, but denied the instructions to plaintiff to form a company and that the company was formed to acquire these patents. It was also denied' that defendant had agreed to pay a fourth part of all royalties received in respect of the machines sold. Tt was admitted that £SO 'had been paid to plaintiff, but denied, that it was on account of his alleged share of royalties, or that lie was entitled to anv share of royalties. Alexander, Walker Reid, defendant, was called and examined by Mr, Fookes. After the luncheon adjournment it was announced by Mr. Morrison that a settlement had been effected. He said that any suggestion of fraud that had been made in pleading was regarded as technical rather than moral, and he desired to withdraw such. He therefore

| asked that the case be-struck out,.arid his Ilonur agreed. CLAIM FOR WORK DONE. .1 he I'lima fSlom.'wood Company claimed against the Taranaki Amusements Company for payment in respect of work done. .Mr. ]<. McDonnell, of Auckland, appeared for the plaintiff, and Mr. A. A. Bennett for the defendant". The claim Was for £202 0s 4d for amount due for Fama flooring supplied to Everybody's Theatre during the erection of the theatre bv Messrs Chaippel] and YVoolley for the'Taranaki Amusements Ltd., The company claimed that there was a direct contract between the Taranaki Amusoments, Ltd>, and the Fama Company, but the owners of the building claimed that the arrangement was a sub-contract and that there was no liability on Taranaki Amusements in the matter, except to Chappell and Woolley, the main contractors. The defendant company submitted that the contract was arranged bv ft Hereon and Aimer, on behalf of Chappell and Woolley, and not on behalf of the Fama Company, and that, in fact, Grierson alid Aimer had 110 authority, express or implied, on behalf of the defendant company to enter into the alleged contract. Mr. Bennett, in support of the claim of defendants, quoted several authorities on, the question of contracts and subcontracts.

The first evidence given for plaintiff was that of Thomas Andrews,. jun.. a member of the firm of Thos. Andrews and Sons, of Chrietchurch, plasterers. Witness said he was' manager of the plaintiff company, arid that on Jttnuary S a quote of £l7O had been given to Messrs Grierson and Aimer, architects, of Auckland, for work at Everybody's Theatre, New Plymouth. He could not say if the company received any answer —it was prior to his management of the company. The work was done, and also the flooring of the lounge, which coßt £32 Os 4d, the tender for which was accepted by the manager of the company. To Mr. Bennett: Grierson and Aimer were acting as agents. Nothing was shown that they acted for the Amusements Company!

Sidney Ernest Chappell, builder and contractor., of Auckland, said hi; firm (Chappell and-Woolley) cpntrnrted for building Everybody's Theatre at New Plymouth. They did not enter into a contract with the "Fama Stonewood Company to lay flooring at the theatre. The Fama. Company did the work. His firm signed an authority to the Amusements Company to pa-y all subcontractors, and they retained the amounts, but had not paid them. His Honor: Why not?

Mr. Bennett: Because the company had claims of liens, which with the claim under the present action amounted to about £llOO, and they had only £530, due to contractors, to meet the claims. Tho company had not paid out the liens because authority had first to be given by the court. The company had encroached upon-;the statutory, amount of 2,1 per cent, of the contract, money, which had to bo kept in hand, for the purpose of facilitating the; completion' of the building of the theatre. In further cross-examination by Mr. Bennett, the witness said that by signing the contract for. the building of the theatre lie had authorised -the Fama Company to' do tho work set out.in the contract, and that' they therefore became sub-contractors. ''

Stanley' Arthur Borcham, foreman for • the Fanm Stonewood Company, said that in October, lfllG, in Auckland, lie i was shown a letter from the, company's Auckland representative from Oricrson ; and Aimer. Witness saw flriersoii and ; went with him over the measurements ' of the work to be done in fama flooring. , Orierson v generally appeared -to act as if he were agents for the owners of the i building to .be erected, The extras, coating £32, were authorised toy Messrs Nixon and Saunders, directors of the Amusements Company. After Mr. Bennett had opened for the defence, his Honor said that if the company had not, made a breach of the statute law by paying out beyond the limit provided all the claims could have been satisfactorily settled. Mr. Bennett: And the building would never have lieen completed. The company was prepared to pa\ nil claims, but the claims would have to he in legal order. Kvidence was given by Hugh Cresswell Grierson, formerly of the firm of Grietson and Aimer, of Auckland, but now a sergeant of the 33rd reinforcements, who said the estimated cost of Die fama work for Everybody's Theatre was £'24o, that quote being given by the Fama Company. The tenders received for the erection of Everybody's Theatre were considered too high. That of Chappel! and Woollejvof .Cfl.W. was the lowest, and he was instructed by the directors of the Amusements Company to arrange with Chappell and Woollev a contract for about £IOOO less than their tender. That was done. He never had authority to act as airent for the Amusements Company. He did not authorise the Fama Company to do the work in Everybody's Theatre, To Mr. McConnell: At the completion of the Fama Company's work at the theatre he wrote to the secretary of the Amusements Company that to the best of his knowledge the work had been satisfactorily executed, A similar notice was not sent to Chappell and Woollev because the liens had been put in. Wm, M. Falconer, accountant, and secretary to the Amusements Company, said that in tanking-up the accounts the £202 for the Fama Company had been credited to Chappell and Woollev. Wi'i- Chas. Nixon, plumber, a director of the defendant company, said that he and Mr. Saunders were appointed a committee to act between the contractors and the company. Bv a resolution of the directors they wore given authority to order extras, and they arranged with the Fan in Company to floor the upper lounge. At thip stage the hearing was adjourned till 10 o'clock this morning.