WAIRARAPA DISTRICT COURT.

Wairarapa Age, Volume XXXI, Issue 9181, 2 September 1908, Page 5

WAIRARAPA DISTRICT COURT.

FOURTH DAY'S SITTING. ALLEGED SLANDER. • The District Court continued its sitting yesterday before His Honor Judge Haselden. Alfred Isaac Geange, settler, sued Frederick William Jones, settler, for £IOO damages for alleged slander. The statement of claim set out that defendant used words which implied that plaintiff was dishones-t and untruthful, the words being uttsred in the hearing of others on the doorstep of the Club Hotel, Mastert >n, on May Bth last. Mr C. A,. Pownall appeared for plaintiff, and Mr P. L. Hollings for defendant. The case was taken without a jury. Mr Pownall, in his opening address, said the object of plaintiff in the present action was not to seek heavy damages, but to make defendant "eat his words." Plaintiff did not assert that he had suffered any great damage, but it was desirable that a repitition of the slander should not be made. Alfred Isaac Geange, plaintiff, gave evidence aa to the words beina used on the doorstep of the Club Hotel, about 9.15 a.m. on May Bth. Frank Vincent Gully, station hand, and Beethoven Algar, errand boy, deposed to hearing the defendant make use of tha words set out in the statement of claim. Mr Hollingd. for the defence, submitted that on the statement of claim and on the evidence Rendered, there was no cause of action, and he asked for a nonsuit. T'irst, on the ground that tne allegedly slanderous words only uttered a {suspicion, which put the case on a different footing to a libel. On the second ground, counsel contended that as the very words used bv defendant had not been set out in the statement of claim. Counsel for plaintiff had exercised a delicacy in framing the statement of ;him, which decided cas?s hr.u shown, was v.ol justified in a Couit ci law, and he quoted authorities in support of this contention. A further ground for a nonsuit was that special damage must be pleaded and proved unless the words were actionable per se, which he submitted they were not. Counsel said he did not oroposa to call evidence, as he relied solely upon the nonsuit points. Mr Pownall then addressed His Honor. He submitted that the words were actionable per se, and quoted numerous authorities in support of this contention. His Honor gave judgment for plaintiff for £5 and £7 lis costs. Mr Hollings gave notice of appeal His Honor fixinj security at £2O. ALLEGED BREACH OF CONTRACT.

Francis Glanham Richards and Vincent Richards, of Masterton, carriers, trailing as Richards Bros., sued Levin and Co., of merchants, for the sum of £3l 4s lid, or in the alternative the sum of £lO6 4s lid, or as a further alternative they claimed George C, Summerell, manager of Levin and Co., the sum of £48.6 a, or in the alternative £123 15s.

Tli°, pleadings set out that defendant Summerell, either for himself or for his company, agreed in September, 1906, t-> suosidise plaintiffs to the extent of £SO a year for thren years in a mail service to Te Wharau, whereby plaintiffs were induced to ent:r into such contract for thrr. years wit!; the G^ve;nme.it, and the instalments of subsidy having fallen into arrears, and defendants declining to pay them, the plaintiffs claim the a:n:unt: set out either as due <>r in damages, with amounts paid on account by defendants deducted. • Mr H. C. Robinson appeared for plaintiffs, and Mr C. A. Pownall and Dr Trimble for defendants. Mr Robii.son said the pka'Jings were complicated, as there were two defendants, and'it was not known who was the actual person indebted. Either defendant Summerell was acting for himself, or els° for Levin and Co. Broadly speaking, the whole claim was that plaintiff was induced to enter into a mail contract on the promise that they would subsidise the service. Counsel outlined the steps taken in connection with the estab lishment of the Te Wharau service. The service grew to some proportions, and as time went on Levin and Co.'s establishment in Chapel Street became practically the Masterton office of the service, a parcel bureau being established there. It would be shown that as a result of a meeting of East Coast and Masterton people, at which Summerell presided, negotiations were made that the East Coast people should subsidise the service to the extent of £2O and Summerell to the extent of £SO, on the strength of promised Masterton support. Acting on th'is guarantee, plaintiffs put in a tender for carrying the mails at £SO, instead of £l2O, as they otherwise would have done. It would be contended that the plaintiffs could not be expected to collect the various amounts which made up any guarantee defendant Summerell purported to have, and that as a matter of fact the persons comprising the guarantois could not be ascertained. Defendant, in short, must be taken to have either personally promised to pay the amount himself on the strength ot the promises of others, or else he represented himself to have a legal guarantee for the amount which he did not possess. The cessation of payment of the amount of subsidy had been caused, apparently, through several of the persons' comprising the committee which defendant set up were guarantors, having declined to continue payment of the subsidy, on tho ground that the service was not suitable to their requirements. Regarding the validity of the contract, which plaintiffs contended existed between them and Summerell, counsel submitted that the consideration to defendant for such contract was thwt plaintiffs agreed to enter into the bond with the Government to run the service, after which plaintiffs' duty in respect of the formation of the contract oeased. The consideration for plaintiffs was the promised payment of £SO yearly. Atter d'scussion on legal points, counsel proceeded to call evidence. J. C. Secretary of the Chamber of Commerce, deposed that there was no record on the books of the Chamber of a contract regarding the Te Wharau mail service. By Mr Pownall: Witness understood that defendant, when searching through the books recently, was looking for a record of names of persons

who promised to subsidise the service.

Donald Douglas said he and others attended a meeting in Masterton in connection with the starting of a mail service from Masterton to le Wharau and Flat Point. Mr Summerell at the meeting said that £SO would be found in Masterton if £2O were found on the Coait. Summerell mia;ht have said he personally would find it —that witness could not certify to. Witness and his brother paid the £2O for the Coast people, as the money coild not be collected, and they regarded the promise as binding on them. No statement was made at tho meeting as to how the £SO was to be made up from the Masterton end, nor was any reference made to a written guarantee being signed by persons present, which Richards Bros, might enforce. On tiie arrangi - ment made at tho meeting plaintiffs were advised and agreed to tender at £SO a year. Nothing was said at the meeting' as to plaintiff doing anything beyond carrying out the terms of the mail contract. Witness was related by marriage to plaintiff. By Mr Pownall: Witness only expected a mail service, and did not give a thought as to a parcel or passenger service. Witness at the meeting said he would canvass the Coast people, and Summerell agreed to find £SO. Witness understood arrangements were made for doing the latter at the meeting. The meeting was held in 1906, and on January Ist, 1907, the contract was commerced. Witness could not account for a statement contained in a letter written by his brother in September, 1907, stating that nothing had been done in connection with the £2O subsidy for the contract Witness could not sty whether it was understooi that Summerell was to pay the £SO or not. Simeon Indtr, Postmaster, at Maß- - the signe'l mail contract, which he'stated wan bting satisfactorily carried out. Th«j service was bi-weekly. M. Casel'jcrg, Managing Director of the W.F.C. A., deposed to being asked by Ci ,, .i:ck.:har.k and Summerell io *'.itri'i,jt, lo\Vai ; i3 a subsidy for the mail service to Te\ Wharau. He de lined as the Association had a branch at Carterton, and the service would simply divert trade from Carterton. Witness believed that the servic ■ would benefit Levin and Co. Ou of witness's sons mav have signed a guarantee for £5 on behalf of the Association, as he had the power. Alexander Young, of the firm of Fly and Young, carriers, said his firm entered into negotiations some time ago with plaintiffs with a view? to purchasing their mail contract, le went to Summerell with reference o the subsidy on the service, and tl e latter said, as far as witness could remember,that the guarantee wss of?,, an t he could not guarantee any subsidy. Negotiations between the firm and Richards 8103. were then dire ntinued. "

Walter N K..im ner, who attended the meeting at Masterton, deposed that it was agreed in the room tl at Masterton shmil i find £SO of the subsidy. It was found that a d; ily service could not be had, and one lersoa withdrew from any joining in it on that account. Finally, a bi-weekly service was arranged. By Mr Povvnali: Witness attend d the meeting, because he desired to get a direct service to Kaiwhata. Witness did not know whether the witness Douglas intended to collect the £2Q from settlers.. He had the impression that Dallas blended to pjy it himself. Witness understood that the £SO from Maslerton was guaranteed in the room. He did not know whether it was to be a subsciiption of Masterton tradesmen. De T fendant Summerell did not give any personal undertaking that he would pay the amount. By Mr Robinson: The mails were taken in a mail brake, and the goods in the old heavy coach. Francis Richards, one of the plaintiffs, said he transacted most of the business. The Te Wharau coach business of one Petersen was taken over, which had a depot at Levin and Go's. The mails from Te Wharau at this time came to Carterton, and defendant Summerell' suggested to witness to rest the feeling of settlers, and the public of Masterton on the question of bringing the mails to Masterton. A petition on the subject was signed by persons interested, and ' presented to the postal authorities, and tenders were called later for a mail service as a result. A meeting was then held at defendant's office of East Coast settlers and Masterton tradespeople. Witness was not present at the meeting, but afterwards he was called in, and asked would he tender for the mail contract. Witness replied he would tender £l2O for a bi-weekly service. Defendant said that on the strength of his canvass and of the meeting he could guarantee £SO per year, and Douglas £2O from the East Coast.' Up to the time of the tendering for the contract no mention was made of how the money wui to be paid. Portions of it were paid, however, by contra account between witness and Levin and Co. Summerell made no offer to show the guarantee. At the time of tendering no suggestions were made except as regarded the mail contract. No arrangement was made whereby witness gave Summerell authority to collect the various sums. (Letters were here put inshowing that the parties contested who should collect the various subsidies promised). Witness understood that the committee of the subscribers were to find the money. No complaints had ever been made to witness personally regarding the service, though witness had heard from outside that there were complaints. By Mr Pownall: Witness had heard of two subscribers who were dissatisfied with the service, Messrs Donald and Major. Witness thought —he was not sure —Summerell said "We can guarantee you £SO from Masterton." Witness was certain that he did not go to Mr Major after the meeting and arrange for the latter to pay £ls towards subsidising the service. Witness knew Mr Major was subsidising the service, but to what extent he did not know. He did not think that he went to Mr Pauling, either, in reference to a subsidy, after the meeting. Witness could not say whether Mr Payton had offered to subsidise a daily service, and would be surprised to hear that the latter ha.i convened the meeting. When witness got credit from l> and Co. for £l9 by contra he knpwas in connection with amounts paid in to Levin and Co. by subsjriOw^.

Witness did not instruct Bunny and Dolan to collect subscriptions from guarantors, but Mr Summerell did, and witness believed the list of subscribers was furnished by the latter. (Counsel here put in a letter from Bunny and Dolan to certain subscribers in which it was stated that they had been instructed by witness to nroceed to collect the shares promised by subscribers to the guarantee). Witness said he knew Levin and Co. were down on the list for £5 5s per annum. The guarantors could not have compelled witness to c?rry on had he thrown up the service at any time. Witness instructed Bunny and Dolan to come to an understanding with Summerell regarding thfi payment of the lull amount. He did not instruct them to eue Summerell for the full amount. V. Richar.ia gave evidence on similar line?. J. H. P«uling, Manager of the Farmers' Implement Company, also gave evidence, which closed plaintiff's case. Mr Pownall said the defence was simply that. Summerell had agreed to subsid.se to the extent of £5 only. no contract, what' ever for him, or Levin and Co., to pay £SO. Even now the firm was prepared to go on, providing the other subsidies were paid, and 'he •service went on satisfactorily. However, the alleged contract was really unforceable for want of mutuality, as the subscribers could not compel pla:rtiffs to go on if the latter chose to throw up the service, lio mowd for a nonsuit on Mu» u.m <.■•-< I n,.qn<s P u>e sen'ii "f "" ,,;!

quired that the contract should be in writing, as it could not be completed within the year. There was a further point whether plaintiffs had not estopped themselves from suing Summerell through the action of their previous solicitors, in attempting to recover subscriptions from various individuals. It certainly seemed to counsel that it was necessary to prove that defendant had personally to contract to pay the amount sued for themselves, without recourse to reimbursement from third persons. On the evidence submitted counsel thought it was a clear case for a nonsuit. Dr. Trimble submitted that as far as defendant Summerell was concerned there must be a nonsuit, as there was no evidence whatever to show that he had acted on his own behalf.

Mr Robinson replied to the questions raised,' and submitted that the facts as shown were clearly against the presumption that Richards Bros, were to collect the amounts. The manner in which Levin and Co. had credited the amounts collected by them showed Summerell recognised the liability to find the full guarantee. Defendant Summerell was, as regarded the iontract, in the position of an agent acting for an undisclosed principal, and as the latter could not be ascertained the agent was liable. Leeal, not moral, turpitude was really what Summerell had been guilty of, as he iiad been rash enough to represent he had a guarantee which it turned out afterwards could not be enforced. The evidence of Messrs Caselberg and Pauling showed that plaintiffs had no recourse to them, and if Summerell was not liable, who was? His Honor asked why should Levin and Co. be liable any more than many of the others present at the meeting? Mr Robinson replied, because they carried out the arrangement with plaintiffs, and practically negotiated the whole business. Perhaps some. other persons were liable with the present defendants, but defendants did not come forward and say who these persons v/ere, and give plantiffs a chance to join them, but simply denied their own liability. The procedure of the District Court did not permit of interrogatories being issued, and the . plaintiffs had to adopt the present course as the only one open. There was also a question of negligence in defendant losing the list of the contributors to the subsidy. His Honor in giving judgment on the motion for a nonsuit, said he could not give judgment for plaintiff, as he was sure it would be Dead Sea fruit, and would not be sustained on appeal. He much regretted that plaintiff would lose money over the arrangement, and if it came to awarding plaintiff £SO, which he had earned, his Honor would gladly grant it, providing it could be done without unlawfully taking it from persons who did not owe it. But every person who entered into a contract was expected to observe business caution, and some degree of particularity in regard to the contract itself. What had happened was quite clear. There had been a meeting of settlers and business people who had said to plaintiffs "We can find £7O, and if you tender for £SO, that will make £120." Plaintiffs, without saying "Yes, but we should like to see something in writing about the contract, so as to know from whom we are to get our money," did tender. His Honor failed to see why Levin and Co. should be considered liable for the whole amount more than any other party at the meeting. If Levin and Co. were liable, then so was any other person there. As to the contention that Summerell was acting as agent for an undisclosed principal, that was quite a foundationless argumant. His Honor repeated he was gjrry for Richards, but he incurred the trouble by acting for no one in particular, but for a number of people who said they would give so much a year. The case might not be that plainciff would be estopned by the action ot his previous solicitors in endeavouring to collect the amounts lrom individual person?, but it was cogent evidence to disprove the assertion that they looiced solely to Levin and Co., and no one else. All the circumstances satisfied his Honor that it was a joint subscription, and oecause some of the subscribers did not pay up it was no reaso.j why one shuuld be picked out and sued. The suggestion of fraud had no ground whatever. Mr Robinson had put it forward in the most unoffensive way, and he thought i: was not seriously made. His Honor thought it only fair and just to say s >, but he thought there was no fraud 0* misrepresentation in Summerell. Rsgarding the contention that Summerell was agent for plaintiffs, it wojld naturally be expected that if he were such he would at the out«et have said to plaintiffs "Now we will pat this contract into form." If plai itiffs put in the tender on a loose u id jrstauding they must bear the consiliences. Q.i broad facts the case

could not be altered in favour of plaintiffs by the calling of evidence for the defence. There was no contract and plaintiffs must be nonsuited. Mr Pownall applied for costs. His Honor granted one set of costs to cover the two defendants.