RESIDENT MAGISTRATES COURT.

Temuka Leader, Issue 2228, 16 July 1891, Page 2

RESIDENT MAGISTRATES COURT.

Geraldine—Tuesday, July 14th, 1891.

[Before G. A. Wrhy, Esq., R.M., and H. W. Moore, Esq., J.P.]

CIVIL CASES. Thomas William Leslie v. E. Burke—Claim £2O, commission on sale of property. - ■. Mr J. W. White appeared for the plaintiff and Mr J* Wilson Smith for defendant. Mr White stated the facts of the case for plaintiff to be as follows :—On :31st May 1890 Mr i Leslie brhM Mr Bourke, end put his property into the formers hands, on : certain terms, to be disposed of. On? ySOth May 1891, the propertybeing still in Mr Leslie’s hands for sale, Mr Leslie found a purchaser, and the fact was communicated to Mr Burke, who then made a reply that; the property was no lorigdr for sale. Thomas William Leslie, Land and Estate Agent, deposed that on 31st May 1890, he met defendant in Tiraaru, and put property into his hands for sale. He made a note of the terms in his pocket book in pencil, and Mr Burke signed it. . In May last he got a buyer for the property, Mr Swaney, and communicated the matter to Mr Burke, who replied that the property was no longer for sale. To Mr Smith: He remembered having a conversation with Mr- Burke on the day of Mr Postlethwaite’s sale, but did not remember hearing him say that the land had increased in value, and that he then wanted more for it. His instructions had never been varied or countermanded from the time he had first arranged with Mr Burke. John Swaney, farmer, Arowheijuav: Remembered, on the 30th May. last~ seeing Mr Leslie about the purchase of Mr Burke’s property. He , was prepared to give the terms asked: cash down, .and was still prepared to do so. He saw Mr Burke, and the latter offered different terms than Mr Leslie’s. He did not tell Mr Burke that he would accept these terras. To Mr Smith: He had since seen Mr Leslie, and told him that the terras lie offered and Mr Burke’s terms were not the same, and he was not prepared to accept the terms offered by Mr Burke. He did not tell Mr Leslie what Mr Burke’s terms were' he only said there was a big difference between, them. . This closed the case for plaintiff’. For the defence Mr Smith called Edmund Burke, defendant, who admitted putting his property into the hands of Mr Leslie for sale on commission on the date, mentioned. Mr Leslie put the terms down in pencil in his pocket book, and he (witness) signed it in pencil, i He > did dot remember what he signed for. - Mr Leslie* did not read> it - but,' and lie trusted to Mr Leslie’s honesty for its correctness. He met Mr Swaney after the harvest of this year, 1 and tll£ latter asked bim if the land was ■ stil™ for sale, and he said “ Yes, but on higher terras. Since he ’ had first instructed Mr Leslie he had made several improvements, on ,the which cost. him .£IOO, and' he then, 1 ■ wanted.more for it.”, . To Mr White: He was about to sell -another, piece..-of land when he received notice from Mr Leslie of Swaney’s offer, and his reason.-for not replying more decisive in liis first reply to Mr Leslie was because he wished to keep the matter open till he saw whether ' he could sell 4ns other property, and in the event of not doing so* he-had- hoped to-c<>hve to some arrangement about the bind ju|question. He sold his other property, and then decided not to let the land in question. . Mr H. B. Webster >vas..called to show the usual practice of commission agents in dealing with the sale of properties. The usual course was to keep a book on which to differ all instructions. If a sale was not effected: within a month or two he would write to the seller and enquire if the property was still open on the same terms. Land was changing in value, every year.

To Mr White: 11“ he was meetingthe vendor from time to time and he had also gone over the land and suav no improvements on it lie would. still consider the first instructions binding, if no others had since been given, If I under .such' circumstances he had. found a purchaser, and notified the same, to the vendor, and tiie latter did not immediately accept it but waited, to see if he could better himself and. finally did not accept, he would still consider himself entitled to a commission. Mr W. S. Muslin was the . next called and gave evidence mainly corroborative of previous witness. ■This,concluded the evidence,: Mr Smith submitted the case was simply one of oath against oath. It could not bo expected that in property of this nature that the terms .would be the same from one years’ end to the other. The decision in this case was left over till after the hearing of other cases, when the Bench gave their decision as follows :—We think in the first instance ■■that the transaction \tas not a very business like one with regard to the manner in -which the transaction was noted by the plaintiff. As a business man he should! have put down in ink what the agreement.was and had it signed. However, on the evidence avc think that theagreement Avas mudp as stated by

plaintiff, and that the property was put into his hands on the terms statec in his memo. , There Avas one peculiai fact about the case, and that Avas ii had been a year before a purchase! Avas obtained, and of course the valiu of the property must have changed. We think, hoAvever, that the defendant should have given notice to the plaintiff of his intention of altering the terms. Considering the Avhole circumstances we think the plaintiff is entitled to-some remuneration for his services, , i and"we have agreed to allow him one half of the commission, £lO anti costs. James Coppin v. Alfred Friers— Claim £23 5s sd, on a dishonored promissory note. There Avas no appearance of defendant and judgment Avas given for plaintiff by drfanlt for amount claimed Avith costs. Willard 'Lawson v. William Davey ■ —Claim £3 14s, goods supplied. Judgment Avas given for plaintiff by default for amount claimed Avith costs, CORSE OBSTRUCTION ON ROADS. James Wigley Avas charged on the information of William Shiers, clerk of the Geraldine Road Board, that on the 18th June, 1891, as the occupier of certain land abutting a public road, did fail to comply Avith an order from the Geraldine Road Board to grub, and clear, and destroy, obstructions arising from the groAvth of gorse. Mr J. Wilson Smith appeared for the informant, and stated that proceedings had been taken under Sections 6 and 7 of the Public Works Act of 1889, but he had since been informed {that Mr Wigley did not Avish to defend the case. Mr Wigley said he had only returned from Wellington last Wednesday, and had not had time to get tiie gorse cleared. He had advertised for tenders since his arrival, and it Avas his intention to see the Avork carried out. Mr Smith said he had been asked to press for a heavy penalty, to act as a deterrent to others, and he hoped the Bench Avould take into consideration the considerable expense the board had been put to in taking proceedings. The Bench replied that so long as they Avere satisfied that Mr Wigley had been aAvay they thought it better the case should stand over, and see if the Avork Avas carried out. Mr Smith pointed out that Mr Wigley Avas au old offender in this respect, and had ahvays ignored the board. The Bench: We can only speak on ■ the present infnrmation. Mr Smith : In a question of penalty your Worships must consider existing circumstances. I must still press for a penalty of some sort. The Bench : You must go into the evidence then. . . Defendant: I have no objection to a small penalty, Your Worship. It Avas then decided to go on Avith the evidence. W. Shiers, sworn, deposed that the road beside Mr Wigley’s property 1 Avas in a very bad state indeed, and had been so for four or five years. An order Avas Served on the 16th May last. Mr Wigley had several notices . from time to time, and tAVO members of the board had made an inspection of the road and found that nothing had been done. The road he considered to be in;a very dangerous condition, and if Mr Wtgley did not soon clear it the road board Avould have to do it. The farmers could not get their reapers, and binders along this road oil account of the obstructions. This closed the case. The Bench said that as Mr Wigley had expressed his intention of having the Avork done as soon as possible they Avoidd only impose a penalty of 10s smd costs. Thomas McAteer Avas next charged .with a similar offence. - Mr J. Wilson Smith appeared for the informant, and there Avas no ap•pearance of defendant. W. Shiers, clerk Geraldine Road Board, deposed to sending defendant notice under section 6 of the Public Works Act on the 18tli June last to remove certain gorse from the road near his property, Avhieh Avas in a very bad state. This case Avas dealt Avith similarly to the previous one.

THE BULL CASE. , ~ li. 11. Pearpoint was charged on the information of C. E.. Sherrat with allowing a bull to be with cows in a public place, Mr J. Wilson Smith appeared for the -informant, and Mr J. W. White for defendant.

Evidence was given by R. Hammond, E.CDeah, and N. Dunlop, similar to that given in the case which came before the court recently. MrC.E. Sherratt, Clerk Geraldine Town Board, sworn, deposed that he knew; the domain leased by Mr Pearpoint. The lease produced in Court "whs the right one. To Mr White : He was clerk to the Town Board in 18S6, and the minute book produced was kept by him. The first step taken by the board with regard to the by-laws was a notice of motion being given by Mr W. S. Maslin on October dth. Mr Sherratt here read the notice of motion.

'' At the next ordinary meeting, November 2nd, Mr Maslin proposed ,tli6-A’oSolution of which he had given notice, and it was seconded by Mr Mundell, and carried unanimously. It was also resolved to hold a special meeting of the board on Tuesday 16th November, to consider by-

laws Ito X. On November 16th a special meeting was held, and the byhnvs were .considered, and it was resolved that by-laws I to Xbe considered the by-laws of the Geraldine Town Board, The by-laws were not published in extenso, but a notice concerning them which had been drafted by the board’s solicitor was published in the Geraldine Guardian on the 6th, 9th, and 11th November. The'by-laws were also posted up in the board’s office. On the -25th November at another meeting of the board bylaws Ito X were adopted., V l on the 4th January 1887, a meeting Avas held and the adopted by-laws were then confirmed, Another meeting of the board Avas held to consider when the by-laivs should be brought into force. It Avas resolved that the by-hiws be brought into force on February 12tli 1887, and second and final notice be advertised according to the Act.

Mr Sherratt here read one of the advertisements in the neAvspaper banded him by Mr White, and Avhieh stated that the by-laivs had been conconfirmed on Ist February. Mr Sherratt intimated that there Aims some mistake in it. .

Mr White : I think so, too. The by-laws Avere not confirmed on February Ist, but on the 4th January. Mr Sherratt: I don’t kn’Oiv Avhere the mistake Avas made,; v I do. not think it Avas on my part. T sent for the original notice sent By me to the paper, but found I could not obtain it. I remember notifying that thfe' mistake should be corrected. Mr White: But lioav comes it that the same mistake appeared in the other three notices uncorrected? ©id you notice it ? Mr Sherratt: No, I did not. Mr White, handing Mr Sherratt the papers ; You notice it noAV ? Mr Sherratt f Yes, I notice it iioav. This ended the case.

Mr White submitted that there was no case at all; " first, on the ground that only the person in charge of the bull could be held liable for any breach of the by-law, and not the owner. Mr Pearpoint was' -not in charge of it at the time, and. was not liable. His next contention, was that the by-laws should have been published in extenso. Section 340 of the Corporations Act, 1876, under which the by-laws were made, showed that they should be published seven clear days before being considered by the board, but may be amended before adoption. He submitted that the notice which appeared in the Temuka Leader was not sufficient. He argued that section 340 specially'enacted that they shall be published and'may be amended before adoption. This certainly could not refer to the notice. There was no need to amend the notice. Another point was that a notice should have appeared ,in the paper circulating in the borough once in each week for four weeks following, instead of which ten days was allowed to elapse before the first notice was published. He was aware that to save the gfeat expense of publishing bylaws,, a law had been passed giving provision that the whole of the by-laws need not be published if thc'-pnrport of them be publicly notified. .. But that law did not come_ into force till TO years After The Act ’undeiuwliich the by-laws in question were made. He argued, that even now, under the Act of I*BB6, the ‘notices given in the Temuka Leader were not sufficient, as the purport of the bylaws had not been given. : He thought the whole thing was a mistaken attempt on the part of the board to save expense, and instead of doing so they would probably be put to extra cost, and expense. Mr Smith submitted with regard to the validity. of the by-laws the only point in dispute was whether the bylaws should be published in extenso. He argued that the word “ published ” had special restrictions placed upon it by the interpretation _ clause. In the present instance the publication was not meant to be strictly, in full. He considered that ample notice had been given with regard to the by-laws. It seemed peculiar to him that the legislature could ask a small tmvn district to publish long by-laws in full. But that was evidently not the idea of the Act, and of course the Act specially provided that it should not be required. The Consolidation Act of 1886 very wisely removed that doubt by expressing the real intention of the legislature in the first instance, and emphasized the intention of the first Act that the by-laws should not be printed in extenso. The Court then rose for lunch.

On resuming, the Bench said the technical objection seemed to be as to whether the by-laws were properly published! After considering the matter it appeared to them that the definition given by the counsel for the prosecution was the correct one. They were entirely satisfied that the by-laws had been sufficiently published. The other objections they did not consider tenable. With regard to the case itself they considered that the offence committed was a great source of nuisance to respectable people going to and fro in the neighborhood, and certainly was a thing which should not be tolerated. The defendant no doubt was actuated by motives which were explainable, but they thought that with due consideration he would see ; that it was not the proper thing to allow tiie offence to take place. They would not impose a heavy penalty but impose a fine of os and costs.

• Mr White ;“I am instructed to give j notice to appeal Your Worship.” The Bench: “ Very .Avell.” The Court-then Vose. V

TIMARII HARBOR BOARD

The monthly meeting of the Timaru Harbor , Board Avas • held yesterday. Present —Messrs E. Acton (chairman), J. Hill, G. Stumbles, F. R. Flatman, J. Talbot, J. Manchester, J. Wilson, I. L. Morris, J. S. Gibson, and Captain Woollcombe. RATES. It having been stated that the Levels Road Board aud the Arowhenua Town Board had deferred the payment of their contributions a resolution was carried threatening to sue the County Council for £385 2s if not paid by the 31st inst.

THE SHINGLE. The resolution from the Levels Road Board re the shingle was read, and several members spoke to the effect that the action taken by the board at present Avas purely experimental, and would not involve any great expense. They Avere not going to purchase a £15,000 Wellman dredge. It was resolved to send the Levels Road Board a reply to that effect. The engineer said he hoped to begin experimenting Avith the shingle in the middle of September. THE SEWER. The board refused to assist the Borough Council in extending the George street seAver, which has been blocked owing to the harbor improvements. THE RAILAVAYS. A copy of a petition to be presented to Parliament by the Oamaru Harbor Board was received, in protest against the action of the Railway Commissioners in adopting special rates, as a result of which the Oamaru board’s revenue had suffered to the extent of £I6OO or £I7OO a year. The board was asked to support the petition. In the course of discussion it was shown that while it would take 42s to carry a certain thing by train from Oamaru to Dunedin, it Avould be brought back for 12s.

A resolution was carried to ask local members to support the claims of Oamaru. The Secretaxy reported that the receipts this half year had been 8s 3d more than last year, and after several other matters were dealt with the Board adjourned.