SUPREME COURT.

Taranaki Daily News, 22 August 1919, Page 6

SUPREME COURT.

YESTERDAY'S, SITTINGS. (Before His Honor Mr Justice Honking) The sitting of the Supreme Court uc; New 'Plymouth was continued yesterday , before his Honor Mr Justice Hosking. CLAIM FOR ROYALTY, Thomas K. Skinner (Mr D. Hutchen) claimed from the Phoenix' Oil Co., Ltd., the sum of £SO as one half year's royalty iii terms of a lease. Mr Hutchen said the lease was admitted The case had been removed from the Magistrate's Court for the purpose of but since that time a case had been decided against the company. All that was necessary was to prove the amount due. There was no defence. Plaintiff gave evidence to the effect that a royalty was due under the lease and that nothing had been paid since Mav 15, 1917. A payment was due on November 10, 1917. Mr .Hutchen said that in the lower court the defence had been that as no oil had been secured there could be no royalty due; according to the lease the royalty due was a.minimum. Judgment for the amount claimed £SO) was given for plaintiff, with costs on the lowest scale. IN DIVORCE. SHARROCK v. SHARROCK. Edith Selinna Sharrock (Mr P. O'Dea) petitioned for the dissolution of her marriage with Herbert James Sharrock on the ground of adultery. Petitioner stated she was married in July, 1910, and lived at Stratford and Tariki. There were two childreii. She left her husband four years ago because he ill-treated her and was frequently away from home and she suspected him of carrying on with a young woman living at an adjoining farm. Fred Frange, laborer, New Plymouth, deposed that respondent stayed at his house for about six weeks with a young woman who was known as his wife. She had a young baby and had only recently come out of a nursing home. The woman was not the Mrs Sharrock in court.

Ernest Trice, farmer, Tariki, brother of petitioner, deposed that he went to the Dominion Hotel, Hawera, on one occasion to inquire for his brother-in-law. He was sent up to a bedroom by the son of the proprietor, and Sharrock came out of the room, and witness heard a woman's voice within the room. It was not his sister's vrcc.

Thomas Kelly, son of the proprietor of the Dominion Hotel, Hawera, gave evidence as to Sharrock staying in the hotel with another woman as his wife She was not the Mrs Sharrock in court. They stayed several nights in the hotel. The' bedroom book, showing the dates, was produced. Percy Trice, farmer, Stratford, also gave evidence to the effect that he went to his brother-in-law while he was working in the paddock, and found a young woman there with him, sewing. Sharrock admitted she was the same woman he had stayed at Hawera with. A decree nisi was granted, to be made absolute in three months, with costs £2O disbursements against respondent. SALE OF A LAUNCH. The hearing of the claim and counferclaim in the case of Home v. Stubbs in respect to the appi.catioi: for the transfer of a section as fart payment for the auxiliary schooner Norseman, or in lieu thereof, £IOO damages, was continued. Mr A. H. Johnstone (with him Mr C. H. Croker) appeared for plaintiff and Mr. H. R. Billing represented defendant. Evidence was pven by Ernest A, Burton, master-mariner, New Plymouth, who said he knew the Norseman in Wellington, some twelve or fifteen years ago. She was then engaged in lightering work about the harbor., She was clinker built. He had a boat which was over thirty years old and she was as good as the day she was built- In regard to the engine not being reversible he Said lie would not take her to sea as a steamer unless she had an engine that would reverse.

To Mr Johnstone: If he took the ves> sel as a sailer the engine would not mat ter much.

Hans J. Olsen, shipwright, Wellington, deposed to building the schooner at Wellington about 22 years ago. He N owned a half-share in her which he subsequently sold for £7O. The specimens of wood in court were in fair condition, moat of them were kauri. (One piece, which a witness had said he thought was bluegum, was split in two and Olsen declared it as kauri, and in fair order.) The effect of age was to cause the timber to perish, lose its 1 strength, and become brittle. He did not consider a motor car engine would be of much use iu a launch like the Norseman. To draw a 60 ft trawl a 25 h.p. engine would be required. The difference in value between a twelve-years-old and a twenty-years-old vessel of that class would be about £IOO. To Mr Johnstone. He had been taken down to a back yard that morning and had seen the wreckage, the timber being in fairly good order, as were also the fastenings. The vessel was not clinker built, and in consequence inquired caulking from time to time. Of the timber in court, he would not say, as an expert, that it was unsound; it was all right. Kauri was one of the best ship-building timbers ih New Zealand. He knew many kauri vessels afloat now that were thirty or forty years old. John Edward Nixon, mechanical and marine engineer, New Plymouth, said lie had examined the engine taken from the Norseman, and found it generally in good order- It was not a reversible engine, and he did not consider it safe to go to sea with an engine that would not reverse.

Some legal argument was heard at this stage and then Mr Johnstone called evidence »n the question of warranties as to the condition of the vessel.

Wm. Waller, harbormaster at New Plymouth, with 38 years' sea experience, in both iron and wooden vessels, *ald iie saw the Norseman being repaired after she came to New Plymouth, and after those had been effected she was in a seaworthy condition. He judged also from her appearance after the wreck that she had been seaworthy. He thought the vessel drifted into the position in which she was wrecked through the engine being disabled.

To Mr Billing: If a vessel was manoeuvred with engine power it would be necessary that the engine should reverse. He did not think the Norseman was suitable for fishing on this coast. She was big enough for cargo-carrying, but he thought she was more suitable for use in still water

fic-examined by Mr Johnstone the witness stated the auxiliary engine'was only to assist a sailing vessel when there was no wind.

Philip Hopkins, managing, clerk for Messrs Govett and QuiUiam, gave evidence at to th» partiu coming to his

oftice with the agreement for the sale and purchase of a half-share in the Norseman. IK- prepared a transfer oi_ the section, wlih'h had been agreed upon' as part of the pim-lmso price, from Stubbs to Home, which Stubbs ultimately refused to sign. He had no instruction,; from Stubbs as lo any conditions as to warranty of the vessel. The delay in the execution was due to tlic holidays intervening. As the transfer could not be completed at the time he included a memorandum on one of the agreements which Stubbs signed, uinrtcrlaking to make the transfer when required. John Lewis Anderson, seaman, Molnroa, deposed that he had had fifteen years' sea experience. He had been sailing master of the Norseman for a time, and considered her a seaworthy vessel. On one occasioiuhe had been out in her over 40, miles from the breakwater. She was a lovclv sea boat. The engine was for auxiliary power. He remembered meeting Stubbs, whom he. told if he bought the boat he would get a good one, but he did not think the engine was the right sort for a boat of that size. He advised Stubbs, if he bought her, to put a heavy-duty marine engine in her. He told him the engine would not go astern. To the Bench: They did nothing but go out fishing whlie he was on the boat. Frederick William Harrison, shipwright, said he thoroughly overhauled the Norseman when she came to New Plymouth. When she was finished and ready for launching he examined her, and was of opinion that she was seaworthy. He had examined portions of the wreckage that morning and found it in firstclass condition. The specimens in Court were in good order./ He had some conversation with defendant as to the Norseman ami the class of engine suitable for the vessel. He understood, from what was said, that Stubbs had bdught, or was about to buy, the vessel. Percy E. Stainton, of Spedding and Stainton, Ltd., local agents for the United Insurance Company, gave cvi- 1 denee as to negotiations with Home for | the insurance of the Norseman. Her value was £450, and an insurance was proposed for £3OO. It was not completed, as Home said the premium was prohibitive. After hearing counsel's addresses, his Honor reserved decision.

CLAIM FOR PERFORMANCE OF SPECIFIC AGREEMENT.

Charles Robert Stannard, land agent, Hawera, for whom Mr. F. Campbell Spratt appeared, applied for an order for the performance of a specific agreement made with Charles Thomas Nicholas, who was represented by Mr. P. O'Dea, instructed by Mr. H. R. .Spratt. Plaintiff said he entered into an agreement to lease, with the right of purchase, a house from defendant. Certain stipulations were made as to repairs and papering of the house, which defendant accepted. The agreement gave him the right of purchase up to March 31, 1!)10. Some of the papering was not completed until early in 1918. Witness saw defendant in March, 1910, and had a conversation with him about fixing up the purchase. He told witness about the mortgages, one being a Government mortgage and the others subject to the moratorium. The rent was paid to the Farmers' Co-op. at Hawera, though whom the lease was arranged. Defendant said it made no difference to him when completion toolc place. He later met defendant at a clearing sale in June, 1017, when he again asked him about the painting and papering, and he replied that witness had got a cheap place, and lie thought the rates aud insurance should be paid by witness, and he agreed to do so, as he thought it was a' fair thing. He had paid them since that time. Witness then arranged that completion should take place at the end of the war. .u subsequent meeting took jj'.ace in Hawera in March last, when witness again asked about completion. Defendant stated he could not sell at the price agreed upon, to which witness replied that the arrangement had been made and he expected it to be kept. Witness thereafter consulted his solicitor over the matter. A storm in March, 1018, blew the fowlhouso and part of the cowshed into the neighboring paddock, and witness re-erected them It his sole expense.

To Mr. O'Dea: He knew the effect of the moratorium on a purchasing clause under a lease. His finances in 1910 were all right. He had no money in the bank in his own name. He thought he was worth from £4OO to £SOO at the time. He had about £l5O in cash in the house. He could have completed on March 31, 101(1. Ho denied ever having been a bankrupt or of calling a meeting of his creditors. He admitted there might have been about three judgments obtained against him. He could have found the £llOO required to complete the purchase by borrowing from friends who had offered to help him on his interest in the house. He estimated he could have borrowed at least £2OO on his furniture if necessary. No increase in the rental was mentioned by defendant to witness. Continuing his evidence after the tea adjournment, plaintiff . said that the arrangement to pay insurance and rate* was not instead of an increased rent. In regard to the condition of the house, he stated he believed it was only about two years old, but it certainly required painting and papering. He had seen defendant frequently, and asked him to do the papering.- He denied that there had been anyone to see the house with a view to buying it since he went into it. It was March 22 of this year that' defendant first said he wanted more for the house than the amount set out in the agreement.

Re-examined by Mr. fipratt, witness said he had been in some financial ombarassment in Stratford about 15 years ago. He had never had a judgment against him in the Magistrate's Court in Hawera, or in any other Court during the past 10 years. He was not in business as a land agent on his own account. He was a land salesman. He also did a little stock dealing. He had an account in the bank at the present time. In March, IMB, ho had an interest in his son's banking account and also his daughter's. He considered he could get from friends a loan up to £IOOO at G per cent, at any, time. He had had an overdraft at the Dank without any security. He always intended to complete the purchase on the date agreed upon. The agreement to postpone completion till the end of the war suited witness better than completing on the date agreed. In reply to the Bench, witness said he I intended from the first to take advantage of the moratorium, but had a date fixed so as to have something definite. He was prepared to complete whenever | defendant wished it.

To further questions by his Honor, witness said he considered it a better business proposition for him to be under the provisions of the moratorium than, to complete the purchase. Correspondence between the solicitorsand the parties was put in. Defendant said ho was a farmer at Mangatoki. He admitted leasing his property to plaintiff with a purchasing clause giving him the option of purehaa-

ing up to March SI, 181 fi. The short time allowed for completing was, in consequence of his oivn liabilities to the Fanners' Co-op., and if he had completed the purchase on the date arranged it would have about squared up his finance.*. The price arrnr.ged was £llOO. He estimated its value to-day at £ISOO. lie considered that, as plaintiff had not purchased by the date agreed and the place was not paying its way, he should pay the rates and insurance. When plaintilf went into the place witness papered the hall and a bedroom. He never agreed to paper any other rooms. In January, 11)18, he papered another room, because plaintiff asked him to in the previous November. He had a conversation with plaintiff about March 25 last, and hn asked something about completing the purchase, and witiie.-s told him he could not complete at the old price, as the agreement and the lease had fallen through. He told plaintiff he was then asking £ISOO for the place, and plaintiff said he considered witness was taking a mean advantage of him. Nothing was said about waiting till after the war to complete. No mention of purchase had been made to him by plaintiff after the signing of the £ agreement. As there had been no completion he simply regarded plaintiff as an ordinary tenant. To Mr. Spratt: He would swear that plaintiff had never mentioned the question of purchase to him before March of this year. He considered plaintiff forfeited his right under the agreement when he did not complete the purchase on the date fixed. He knew the moratorium applied to mortgages, but wa9 not aware that it affected leases with purchasing clauses until told so by his solicitors. He knew nothing about a tenant being protected against an increase in rent. The house was about three years old when plaintiu took it. He was satisfied to have him in at a low rent because he was a good tenant and would look after the place. He was not altogether satisfied to be getting less than five per cent, on the property he leased to plaintiff while he was paying a higher rate to, the Farmers' Go-op., who had financed him. That was why he suggested plaintiff should "take on" paying the rates and insurance. The property had cost him £775 two years before plaintiff took the lease. He did not consider he was getting a good thing out of it at £llOO. He had spent a lot on the place in laying out the grounds and making footpaths, etc. Authority was given to Grant and Campbell in 1013 to sell the place at £llOO. In September, 1018, Mr. Grant asked if witness was still prepared to sell at the same figure, and he replied that he could not, as it was worth between £ISOO and £I6OO.

Minnie Nicholas, wife of defendant, deposed to going to the house at her husband's request. Mrs. Stannard said some papering was needed, and she thought they could do it. BANKRUPTCY. On the motion of Mr. A: R. Standish, John Herbert McNamara, laborer, Dannevirke, was granted discharge from bankruptcy. v

Mr. A. A. Bennett ap,- \;d in support of a motion for the discharge of Harold J. Smith, baker, of Urenui, which was granted.

, On the application »f Mr. F. E. Wilson, Ernest Broeklebank and William Brocklebank, of Stratford, were also granted discharge.