SUPREME COURT.

Taranaki Daily News, 14 December 1922, Page 4

SUPREME COURT.

RESERVED DECISIONS GIVEN. AN APPEAL ALLOWED. Two reserved decisions were given by His Honor Mr. Justice Chapman at the Supreme Court at New Plymouth yesterday on matters which came before him last week.

The first was on an appeal from a decision by Mr. A. M. Mowlem, S.M., at Eltham, when lie had awarded Thomas James Allen and Mariam Allen £25 as damages against Edward Forrester and Edward Mullions for alleged wrongful dismissal. The plaintiffs had entered into a contract with R. Best to go on to his farm as share-milkers. .but on the day they went there Best died. The appellants in the present action were Best’s executors, and had dismissed Allen and his wife after they had been a month on the farln, paying them £l5 15s. When he had brought his action for wrongful dismissal Allen alleged that he had entered into a two years’ contract with Best, and that this contract was confirmed by tile .executors.

In the course of his judgment His Honor said it was quite evident that the term of the engagement was agreed upon, though whether it was for one or two years was not, upon the evidence, quite certain. As it was to commence at a future date the contract was not to be performed within a year, and was. therefore, unenforcable by action. The death of the employer discharged the engagement unless it was made expressly to bind his executors. There was, in' his opinion, a complete defence on that ground.

There was no evidence of a new contract entered into with the executors, the judgment continued. The alternative was that they confirmed the contract made by the testator, which was more probable, but it added nothing to the respondent’s ease. What they confirmed, if anything, was an existing contract, which was as good without as with confirmation, but it was a contract which, as had already been said, could not form the basis of an action. The evidence as to confirmation, so far as it went, amounted to nothing more than confirmatory evidence of the original contract. The services actually rendered had been paid for and a receipt in full given. In His Honors opinion the appeal must be allowed with costs. PAYMENTS UNDER MORTGAGE.

The second decision given by His Honor affirmed the right of a mortgagee to sue his transferee for the amount of the mortgage when he himself had not paid any money io the principal creditor, his mortgagor. The case was that brought by Thomas Albert Rowe, against Freeman George WilleoCKS, a claim for £2658 16s 7d as principal and interest due under a mortgage and declaration of indemnity. A few minutes prior to this action being heard Rowe had consented to judgment being given to his mortgagor for £2938 10s 7d on similar grounds. In the course of . his judgment, His Honor said that the present plaintiff (Rowe) had not then, and has not since, paid anv part of the debt, and the pre.sent defendant (Willcocks) relied on that as bis sole defence, arguing that he was not liable to he sued unless and until plaintiff had paid the mortgage monev. or part of it. “It would no doubt be hard on the defendant." the judgment went on. “if he paid this debt and plaintiff failed to pay the amount of the judgment. That, however, would he a hardship of the defendant’s seeking. which must be contrasted with the hardship I should inflict on the plaintiff were I to hold that he has no redress while a debt, for thousands of pounds hangs over him. The true answer is that, if at any time even alter that date, the defendant pays the judgment debt to the original creditor, he can obtain a stay of proceedings under the judgment.” Judgment was given for the amount claimed, with expenses and disbursements to be fixed by the registrar. JUDGMENT BY CONSENT. When the action brought by Dalgety and Co., Ltd., against Robert H. Phillips, a claim for £257 Ils for the purchase of stock, was called, Mr. L. M. Moss, for the defendant, intimated that he had advised his client to consent to judgment, which was accordingly entered with costs.