TOLOGA BAY CASE.

Gisborne Times, Volume XXVIII, Issue 2742, 22 February 1910, Page 7

TOLOGA BAY CASE.

MAGISTRATE’S JUDGMENT.

Mr. W. A. Barton, 'S.M., delivered the following judgment yesterday in tlic case of Johnston v. Smith :—Claim £143 Os 6d. After summarising plaintiff’s case the Magistrate says:— From the evidence it appears that the defendant agreed to purchase from t-lie plaintiff furniture, etc., in connection with, a private hotel situate at Tologa Bay (except a few articles mentioned in the agreement which a,re not in dispute), and it was further agreed that the value of the articles sold was to be fixed by arbitration. The plaintiff says that he and the defendant agreed that John Morton Ollivier should be their valuer, but that lie refused to act in that capacity, and said lie would act as referee, and that thereupon the parties agreed to act as their own valuerers, and Ollivier was to referee in case of dispute between them. Tlic valuation proceeded, and each of the three had a book in which the agreed price of every article was entered, and that at the conclusion thereof they all met, by appointment, at defendant's shop, when the total was agreed upon at £173 5s 6d, and defendant thereupon paid £IOO to plaintiff on account, and took possession of the goods. Neither the gas plant nor force-pump were included in this amount, and a separate agreement was made in relation to the gas plant, which is as follows:—“It is agreed that an expert be engaged bv Mr. Smith to go through the whole of the gas plant, and put the same in thorough repair, and estimate the depreciation in value of the plant, the cost of which is to be deducted from the price (£SO) paid by Johnson co Walker.”

The defendant’s evidence. is that Ollivier agreed to act as valuer for the parties, and that lie did so act. I am of opinion, however, that the parties acted as their own valuers, and that Ollivier’ s position was that of referee. Counsel for defendant contends chat allowing Ollivier’s position to have been that of referee, he should, as such, have made his award on properly stamped paper, within fourteen days of the valuation, and that the three books showing the articles and prices made up by t-lie parties and Ollivier are inaclmissable. I am of opinion in all circumstances the plaintiff is entitled to succeed upon the alternative claim for goods sold and delivered, and that the books are admissible as evidence of the amount agreed upon between the parties and Mr. Ollivier. In my opinion a formal award was unnecessary. There is not any doubt that the value placed upon some of the articles is excessive, but with that I am not concerned, as I am satisfied that the parties , assisted by Mr. Ollivier, agreed iip/on the prices, and they must therefor be bound thereby. lii reference* to the gus t)lnnt I ain of opinion that the nlaintiff is not entitled to recover more than the value placed upon it by Mr. Allen, viz. £37 12s 6d, less amount of depreciation, £3 15s, and repairs to leak ss. The £SO fixed as the value of the gas plant in exhibit F was based upon the assumption that plaintiff had paid that amount to "Walker for it: which is not clear from the evidence. I therefore think that the fairest course to adopt is to take Mr. Allen’s estimate of the original value, which is £37 12s 6d. the only other item is the force-pump which Mr. Allen says is of no value, but that the piping is worth £3 ss,- which I allow. Judgment will therefor be for 1)0 for plaintiff for goods, £137 5s 6d; cows, £l4; gas plant, £33 12s 6d ; "iiinp piping £3 ss: with costs of Court, £1 18s ; witnesses’ expenses, £1 I.os : solicitors’ fee, £2 12s; less credit, £100; less counterclaim, £BB 10 3s, and costs 10s; total. £4l 2s 9d.