RESIDENT MAGISTRATE COURT.

Westport Times, Volume V, Issue 816, 25 May 1871, Page 2

RESIDENT MAGISTRATE COURT.

Westport, Tuesday, April 23. (Before J. Giles, Esq., K.M.) ANDREW TODD T. PETER MANGLES. Claim for £43 10s lid, the value of goods damaged and short delivered by the defendant. Mr Pitt appeared for the complainant, and Mr Home for the defendant. Mr Pitt stated that the action was brought for non-delivery of goods delivered by the plaintiff to the defendant for carriage from Westport to the lyell; at the latter place to be re-delivered to the plaintiff. The defendant did not safely carry the goods, which were totally lost. He could readily conceive that his learned friend would urge certain legal objections, but he rested his case upon facts which be would adduce, placing the defendant's liability beyond a doubt. The facts were that Todd and Mangles are storekeepers at the Lyell, Mangles also being the proprietor of a boat known as Ellen, Lyell Packet. In January last, the plaintiff had certain goods to forward to the Lyell, and they were delivered to one Frederick Green, who worked in the boat. Crossing the Inangabua Falls an accident happened, the boat being upset and the cargo lost. Certain articles were saved, comprising a keg of whisky, and a box of candles, a package of tea and a box of cocoa, which were much damaged. Assuming that there could be no question as to Mangles being the proper person to be sued, the facts would suffice to gain a verdict. He would show, however, that there existed a joint liability between Mangles and five other persons. The plaintiff had elected to sue Mangles, leaving him to obtain a settlement with the others who were also liable. He believed that it would be contended that Mangles was not a partner. To arrive at a conclusion as to whether there was sufficient to constitute Mangles, a partner, it would be necessary to consider the law of the case. There was an abundance of precedents, among others, Carver v. Warne, Cox v. Hickman, which placed the defendant's liability beyond a doubt. It would be shown that Mangles owned the boat, and was in the habit of getting stores. He put Frederick Green and others in the boat to work her. The receipts of the boat were to be divided iuto six shares, and they were all to participate equally in the earn'n„'s. A partnership v\aa thus implied by law, if not expressed. j

Alexander Stitt was called to prove the delivery of certain goods on account of the plaintiff to Green. Mr Home was prepared to admit the delivery of the goods. Frederick Green : I am a boatman. I was working in- the Helen, Lyell Packet, in January last. The boat belonged to Peter Mangles. Stitt Bros, shipped cargo by me for Andrew Todd. The freight was £l4. I proceeded to the Lyell with four others, and at the Inangahua Junction we capsized the boat. We had other cargo in the boat. It was my fourth or fifth trip in the boat. I was entitled to a sixth share in any profits arising out of the working of the boat. The remaining four of the crew were also each entitled to a sixth. The remaining share was represented by the boat. The practice was to carry up goods for Mangles, and, if unable to fill up with his goods we took any cargo we could get. The owner of a boat always finds oars and pays for wear and tear. Sometimes T collected the freight, and sometimes Peter collected. By Mr Home: Peter worked the boat before I took it. We made nU arrangement. I did not hire the boat. The boat had been lying up for some time before I took it; it may have been so lying for four or five weeks. Peter was with me one trip about a month or five weeks before Christmas. I was looked to as the head of the boat's crew. I generally received the freights and paid the money over to Peter. He settled with the crew. Peter paid me for the carriage of his goods the same as any body else. I have no liability in this affair that I know of. lam not aware that, failing to recover from Mangles, I should be liable to the plaintiff. Mangles has another boat. Ido not know who works it. lam not aware that it is let. The Maoris, at one time worked it, and a man named Peter (Williams) had the boat but that was a long time a<*o. I have nothing beyond what I earn in the boats. I never signed receipts for goods on behalf of Peter Mangles. Todd came down and took such goods away as were saved. The boat was not damaged at the accident, and I continued to work her for one trip, but not afterwards because it did not pay me. I have been digging since. Peter did not take the boat away. When 1 told him about the accident, he said it w T as a bad job but that it could not be helped. There were about two tons of his own goods on board. Two other witnesses, who had worked the boat, gave corroborative evidence.

Mr Home called the defendant, Peter Mangles, who stated : T own the Lyell packet, Ellen. I used to work her, but, excepting one occasio that I came down to Westport on business, 1 have not been in her for twelve months. I have small private boats that I use, which are not intended to carry cargo. The boat was lying idle when the previous witnesses, Green and Crowle came to me, and said that it was a shame to let the Maoris have the boat when other men could work it to advantage. They offered to form a crew of five men to work the boat, and to give me onesixth for the use of it. I let the boat on these terms. I was in no way in partnership with them. I paid full price for any of my own goods sent up. Green collected all freights excepting mine, and he had charge of the boat, and was responsible. I interfered in no way, and Green did as he thought fit. I own other boats, and I let nne to Peter Williams on the same terms. Every boat I have for hire is let upon a similar arrangement. If the boat earns nothing I have to keep her in repair at my own cost, but I am not liable for any wages, as the men work for themselves ; not for me. When the goods were damaged, Green wanted to bring them into my store, as Todd was away. I objected, and said, " Let each person receive his own goods." I was in the habit of settling up with all hands. My store was the most convenient place for such settlement, and Green used to come and furnish me an account of all freight. I then deducted the share for the boat, and paid to each man his share. Peter Williams: I am a boatman. I know Peter Mangles. I work a boat of his, and pay him one-sixth of the earnings for the use of the boat. The rest I take myself anH divide with the crew. I trade onK to the Inangahua. I satisfy Peter as to my receipts, and I pay him one-sixth for rent of the boat. I work it entirely upon my own responsibility. I know Fred. Green. Mr Pitt objected to any evidence about Green, who was no party in the case ; only a witness. Mr Home thought that Mr Pitt should not object to any evidence that would throw light upon the question, although it might be for the interest of the plaintiff that certain facts should not be elicited. All the witnesses for the plaintiff were equitably liable, conjointly with the defendant, supposing that he was at all liable; and their evidence was that of men who were directly interested in determining the liability of the present defendant. Mr Home addr ssed the Court, arguing that the terms upon which the boat was let did not constitute a partnership. The position of Green, Crowle, and the remainder of the crew, did not admit of their making any other kind of an arrangement. They could not tell what loading there might be for the boat, and could not, therefore, fix beforehand the remuneration to give Mangles for the use of the boat. The state of the '

weather and river might for months have been such as to preclude their working, and if any fixed rental had been agreed to, it might have been impossible for the men to pay it. He believed the Court would agree with him that a certain share of the profits to be taken as rent was the best, and, in fact, the only possible arrangement that could have been come to between the parties, and certainly would form no grounds for an implied partnership. His WqrsTiip gave judgment for the plaintiff in the amount claimed • and costs. ASKEW V. JOHN STITT AKD ALEXANDER STITT. This case had been adjourned, and was an action for the recovery of £lOl lis for rent of a section in Gladstonestreet, The amount was reduced to £IOO to bring it within the jurisdiction of the Court. Mr Pitt appeared for the plaintiff, and Mr Home defended. The follow objections were raised by the defendants' counsel:— 1. That the amount sued for was beyond the jurisdiction of the Court. 2. That rent is the form of the claim in the bill of particulars, and rent not being, in law, deemed to be a debt, the claim could-not be reduced under the .Resident Magistrates Act which provided for the reduction of debts only, to bring them within the jurisdiction of the Court. 3. That a landlord can only sue for use and occupation. 4. That the lease was stamped since the liability of the defendants ceased, namely—in May, 1871, while the defendants had ceased to be liable in May, 1870, when they were obliged to abandon the property or section: At the time they left the section the lease was inoperative being unstamped. Mr Pitt contended that the stamp was not necessary to make the covenant binding. The covenant was in existence, notwithstanding that the deed was not admissible in a court of law. His Worship decided to make a note of all objections and would proceed to investigate the merits of the case. Mr Home then contended that under the deed Askew had made an absolute assignment of the freehold. He had " conveyed, assured, and transferred " the property, and not having, as was usual, demised by lease, the plaiutift's were out of Court. Mr Pitt argued that the covenant to pay rent, and under which rent had been paid, was evidence that a lease was understood between the parties. His Worship was of opinion that the matter was one that the Supreme Court should decide. The only question for him to consider would be whether or not a covenant had been entered into.

Mr Home: The question would be whether the main portion of the deed being repugnant to all its subsidiary clauses, would not render the deed void. Further, if it were to be held that the deed was good in part and bad in part, the secondary clauses could not be made to override the most important one. Mr Pitt: In the ease laid down, Munro v. Kerry, the defendants are stopped from taking such an objection. They are bound under this, deed which contains a covenant to pay rent. If the defendants wish to claim the freehold they may do so. Should they even show that thedeed is a conveyance, and not a demise, they cannot get out of their covenant to pay £72 a year. Even if the deed is bad in part, it is not bad in the whole. It canuot be assumed that, because the deed convejs a fee-simple, therefore, the covenant is invalid. Mr Home: To suit either one side or the other it cannot be assumed that terms conveying the fee-simple are mere formal words, and of no moment. The habendum and redendum clauses that follow must be void, because they are totally inconsistent with and repugnant to the foregoing portion of the deed. The grant being unquestionable must prevail, and the latter yield. _ His Worship : I must limit this action to the consideration of any covenant not vitiated by the contradictory clauses of the deed. I see nothing to vitiate the redendum which reserves the rent. If the habendum is bad it does not follow that the redendum is bad. I nevertheless reserve the point for further consideration. Mr Home : There is another point. This action is brought under an implied covenant. There is no express covenant that the defendants should rent and repair ; therefore, if by fire or the demolition of the bulidings beneficial occupancy ceased, the defendants could not be called upon to pay rent. His Worship : The point is that the defendants were not bound to pay rent, if rebuilding became necessary. Mr Pitt then called the following evidence: Rubina Askew: I am the wife of Thomas Askew. I keep my husband's books and accounts. I know Alexander Stitt and John Stitt. They occupied certain land, the property of Thomas Askew, for which they paid £lB quarterly. The account produced represents the payments for rent. The last payment was on August 2nd, IS 70. Applications have been made for rent, and we received the letters produced in reply. A letter from the defendants, dated July 14th, 1870, repudiated any further payment of rent by the defendants. The £3 0s received in August, 1870, was for rent. The defendants collected rents for Thomas Askew.

My Mr Home: Mr Pitt has the letter in his possession which acompanied the remittance of £3 9s. I was not authorised by the defendants to take the money as rent; they sent it as the proceeds of a building. I did not recoguise it as such, but placed it to their credit as payment of rout. The telegram sent in reply to that received on May 17th was " save the building." The building was sold but not in a legal manner. It was not advertised. I do not consider the defendants acted in a proper manner for the protection of my husband's interests. The letter produced, dated Nov. 2nd, 1869, is in my husband's writing. It offers to reduce the rent from 60s per foot to 355. The full rent is charged in the statement produced. Re-examined.—l know the section, and I saw it to-day. I know the section occupied by Mr Williams; it is adjoining, and is of the same depth as that rented by the defendants. William's section is occupied, and the°adjoining oue is perfectly tenable. Mr Home submitted that the production of the lease to which he had objected had left him no case to answer. He should further contend that the limitation of rent by Askew had annulled the covenant, supposing any such existed. The latter point being overruled, the following evidence was called for the defence. Hugh Griffith Hughes: I am a chemist, residing at the corner of Palinerston and Gladstone streets. I was there in May, 1870. Stitt Bros, had a store adjoining. The weather was exceedingly stormy, the sea washing over the banks, and surrounding the sections. The water went into their store, the floor of which was lower than mine. I do not know of any premises adjoining Stitt's being washed down or injured. It was necessary to remove the goods, and they were removed to Leslie's store. The water was round the Gaol. I would have advised a removal on account of their heavy stock. Other people were also interfered with. I did not think that there was so much danger as there was inconvenience from the overflow of the water. I should say that the defendants did right to move the store if thev were advised to do so. By Mr Pitt: The floor of Stitt's store was lower than Williams's premises, which I now occupy. There was a panic on the Sunday, May 15th. Stitt's store was not moved the same day as the flood. I did not move Williams's store, which is still standing and occupied. The section occupied by Stitt is still there, but is now vacant. It is not submerged now, but the occupants of a building there would be subjected to the same inconveniences occasionally that I am. John Munro: I am an auctioneer. I recollect May, 1870. Stitt Bros, are storekeepers. I knew the store they occupied in Gladstone street. I consider it was properly constructed to carry heavy goods. The nearer the floor would be to the sand, the more solid it would be. As a store the building was not habitable. The sea has been again over there recently. No reasonable man would rebuild there. I sold the debris of the building. I was instructed to sell on the 21st. The price I obtained was £5. A practical builder was present aud offered £4, and I thought that I got a very good bid in £5. By Mr Pitt: I believe that the store was an ordinary sized one. The buyer was Mr Stitt. I received instructions of sale the day previous to the auction. I believe the building was not taken down when I got my instructions. I sold on May 21st. lam not quite certain that I sold on that day ; it may have been two or three days previous to that. The account sales is dated that day, and I have no other means of fixing the date of sale.

W. Patterson gave evidence as to the state of the weather and the condition of the section occupied by Stitt Bros, on Sunday, May 15th. By Mr Pitt: I am a tenant of Mr Askew's, and am similarly situated to Stitt Bros, in respect to Mr Askew. Mr E. A. Labatt also gave evidence of having assisted to remove Stitt Bros.' stock, and having knocked them up at eight o'clock on Sundav morning, May 15th. The back fence/stable, &c, were upset by the water. Some oats and flour were damaged. By Mr Pitt: The whole of the land on the same side of Gladstone-street was equally endangered. Messrs Sheahan, Clarke, aud Simpson gave similar testimony as to the dangerous condition of the property and the state of the weather. His Worship reserved judgment until the following court day, Friday, May 26th. THOMAS JOKES V. JOHN MUNBO. Claim for £1 lis 6d. Mr Home appeared for the plaintiff. This case occupied the Court two hours. The claim was for half a cord of firewood supplied and overcharge upou a purchase of barley by the plaintiff from the defendant amounting to 14s. Tho defendant admitted the items, but contended that they had been passed to the credit of the plaintiff, and proved a debit of two bags of barley received by the plaintff. The plaintiff had paid him various sums, in the course of business, since the itoins now sued for had been adjusted. The plaintiff denied in toto having received tho two bags of barley charged against him. Ho had received but four bags and had been debited with six bags. The defendant's storeman was called to prove tho delivery of six bags. Ho

stated that he recollected the delivery of two bags on three separate occas. ions. Each dolivery should be in the receipt book produced. Mr Home pointed out the dis. crepancy in book which contained mention of four bags only. His Worship, in giving judgment stated that as far as he could see the barley had nothing to do with the pre. sent claim, and nonsuited the plaintiff. The Court then adjourned.