ALLEGED BREACH OF COVENANT.

Gisborne Times, Volume XXVI, Issue 2328, 22 October 1908, Page 2

ALLEGED BREACH OF COVENANT.

CYCLE DEALERS AT VARIANCE. DAMAGES AWARDED. ' interesting case, was heard at the Magistrate’s Court yesterday before MrW. A. Barton, S.-Mv, when jJosepli Boland . proceeded William John Barlow to recover £2O damages for alleged breach of cove--mint in connection with the sale of a business. _ . Mr G. Stock appeared for the'plaintiff - and .Mr. J. B. Kirk for the defendant. . . Mr. Stock outlined the case for his client. Defendant had entered into an argeement when purchasing plaintiff’s business that ho would not engage in the gunsmith business. The agreement, as counsel would show, b id -been broken

Stephen [Whitehead, cycle mechanic,, said that he entered defendant’s employment after defendant had bought out plaintiff’s business. Defendant ,on. several occasions, did repairing work to a great many rifles and sliot guns. Witness refused customers for the first few days when they brought guns to be repaired, but defendant told him not to refuse any more, and witness repaired several after that date. ! • '

To Mr. Kirk : He was .at present in the employ of W. Boland. The rifles belonged to the rifle corps, of which defendant was a member. No charge was made for the rifles which were only cleaned, not repaired. Out of twenty odd shot guns he could only romember one which belonged to a, man named McGregor. Mr Kirk outlined the case for the defendant. He claimed that when defendant took over the business there - was a contemporaneous oral agreement by which defendant was. to. be allowed to dispose of any gunsmith material which he took over before the .agreement came into force. Mr .Stock entered a strong protest against the admission of evidence of any oral agreement. Mr. Kirk quoted authorities in support of his contention that he was entitled to call evidence of the oral agreement. He asked that Mr. Stock’s objection be over-railed. His Worship held that counsel must be bound to the written agreement. He could not allow the evidence relating to the oral agreement. Mr. Kirk claimed that the covenant contained no real promise by defendant to abstain from selling gunsmith’s materials. Counsel further quoted authorities . regarding covenants and submitted that defendant was only selling off the gunsmith’s materials which had been taken over at the time of the agreement . Mr Stock contended that there was mutual consideration in the deed of covenant. The only point was as to whether the contract was reasonable, as to the radius in which defendant might not carry on the business of a gunsmith, or the,length of time during which he was prevented from so doing. The deed as executed must be binding. Mr Kirk claimed that Mr Stock had not .attempted to answer the legal contentions brought, forward by him (Mr Kirk). . , „ , . His Worship said that, in his opinion the covenant was fair and reasonable, and that there was consideration in the agreement. Both Counsel having addressed the Court on the question of damages, His Worship said it was perfectly clear that plaintiff was entitled to recover some damages. There was no doubt the covenant had been broken, but it was difficult to assess the damages. Under all- the circumstances lie thought a fair amount would be £lO. Judgment would be for plaintiff for that amount with £1 16s costs.