STOUT, C.J.:— S.C. 1901. HARDING v. &C., OF EKETAHUNA yearly COUNTY. This appeal raises the question of the validity of by-law No. 1 passed by the Eketahuna County Council. Various grounds have been raised to show that the by-law is bad. The CHAIRMAN, grounds are 1, That the by-law was not properly made; 2, that it was ultra vires (a) as the fee was not a yearly licence fee, (b) as a differentiation is made as to vehicles carrying wool, timber, or bricks, (c) as the County Clerk is made a judge of the issue of the licence(1), (d) as the bylaw attempts to incorporate a civil liability under clauses 21 and 46, and makes responsibility therefor a condition precedent to the issue of the licence, (e) as conditions are attached to the licence. In my opinion the objection as to the mode of making the by-law must fail. The usual course followed in passing a special order was followed, and the remarks I have made in the case of McPhee v. Wolters(2) apply in this case. The grounds (b) and (c) were abandoned during the argument; and as to objection (d), section (d) of subsection 2 of section 130 seems to me to warrant what is provided for in clauses 20 and 21 of the by-law. As to objection (e), I think conditions can be affixed to a licence, and that section 311 of "The Counties Act, 1886," when read with section 130 of "The Public Works Act, 1894," sufficiently empowers a county to affix certain conditions to licences. The difficulty in this case is the same as in the case of McPhee v. Wolters (2). The licence is, whenever applied for, for a stated period: viz., from March to March. The licence is to terminate on the first Monday in March. The result is that an owner of a vehicle will have to pay a yearly licence fee though he may only have permission to use the roads for a month or two. There is no provision for only a proportionate part of the licence fee being charged. In certain cases (clause 13) the Council may " in its discretion" refund a part —that is all. In my opinion the statute meant to give the user of the roads not closed to heavy traffic for certain months the user of the roads for twelve months on payment of a licence fee, and that is what is meant by substituting a yearly (1) Objection (c) as stated in the case on appeal was that the by-law made the Clerk of the county a judge of the issue or otherwise of a licence on being (2) Ante, p. 493. satisfied as to certain matters, such S.C. 1901. HARDING v. CHAIRMAN, &C., OF EKETAHUNA COUNTY. licence fee for tolls and charges. This the by-law does not The conviction must therefore be quashed, with £6 6s. costs. Solicitor for the appellant: C. A. Pownall (Masterton). S.C. 1901. April 18. STOUT & CO. (LIMITED) v. WOODROFFE & CO. Damages-Breach of Agreement—Prospective Profits. Substantial damages are recoverable for breach of an agreement, though such damages arise from loss of prospective and speculative profits. CONOLLY, J. THE plaintiffs, Edward J. Stout, of Birmingham, England, hardware-merchants, sued the defendants, F. D. Woodroffe & Co., of Auckland, for £980 5s. 5d., being the total amount of a number of dishonoured bills of exchange drawn by the plaintiffs on the defendants during the years 1899 and 1900, and accepted by the defendants. The defendants filed a defence by counterclaim, setting forth (inter alia) that by an agreement dated the 8th of December, 1891, made between E. J. Stout and F. D. Woodroffe, Stout agreed to furnish Woodroffe with samples of goods. Woodroffe was to effect sales of such goods, the orders for which were to be transmitted to Stout, who was to ship the goods as required by Woodroffe. The agreement contained various provisions relative to the division of profits, losses, and expenses, and was made terminable by either party giving to the other six months' notice in writing. The agreement continued in operation for a number of years. In 1898 the business of E. J. Stout was formed into a company under the style of "Edward J. Stout (Limited)," and in January, 1899, Woodroffe took H. P. Huddleston into partnership with him, and thenceforth carried on business as "F. D. Woodroffe & Co." The agreement was adopted by the plaintiff company and the defendant firm. The defendants alleged that during the years 1899 and 1900 the plaintiffs had committed various breaches of the agreement by neglecting and refusing to furnish the defendants with (1) Ante, p. 493 S.C. 1901.. V. 507 WOODROFFE & Co. various samples and certain goods, as required by them and ordered from the plaintiffs. The defendants alleged that in consequence of this action of the plaintiffs they (defendants) STOUT & CO. had suffered substantial loss, and they claimed (inter alia) to recover from the plaintiffs the sum of £2,500 damages arising from loss of profit on the business they alleged they would have done had the plaintiffs performed their obligations under the agreement. Other pleadings were filed in the cause, and on the 11th of December, 1900, an order of Court was made referring all questions and matters in dispute between the parties to the award and determination of C. E. Button and W. R. Holmes as arbitrators. The arbitrators found that breaches of the agreement had been committed by the plaintiff company, but it was claimed on their behalf before the arbitrators that no substantial damages could be awarded to the defendants, as they arose from loss of profits which were prospective, speculative, and uncertain. One of the arbitrators, C. E. Button, now submitted a special case for the opinion of the Court. After a recital of the facts the Court was asked to answer the following question: Ought substantial damages to be awarded in respect of profits the defendants might have made if the agreement had been fully performed by the plaintiff company? Cotter, for the defendants: The defendants are entitled not merely to nominal damages for breach of the agreement, but to substantial damages arising from loss of such profits as would have accrued to them had the agreement not been broken by the plaintiffs, even if such profits were prospective and speculative, provided the losses were the natural result of the breach. The present case is not distinguishable from Simpson v. London and North-western Railway Company(1). See also Mayne on Damages(2); Jaques v. Millar(3); Royal Bristol Permanent Building Society v. Bomash (4); Bunning v. The Lyric Theatre (Limited)(5); Ryan v. The Mutual Tontine Westminster Chambers Association(6); Marcus v. Myers(7); Ashworth v. Wells(8); Schulze v. The Great Eastern Railway Company (9). S.C. 1901. v. & Co. Campbell, for the plaintiffs: The authorities cited by the other side render it impossible STOUT & Co. to contend that in no case can damages arising from loss of WOODROFFE prospective profits be recovered. In the present case nominal damages only should be awarded, as there are no means by which the amount of damages can be ascertained, and nothing by which a basis of computation can be fixed. The case is similar to Watson v. Gray(1), where damages of this nature were refused. If, however, it should be held that the defendants are entitled to substantial damages, such damages should be limited to a period of six months, for the whole agreement could have been terminated within that period at any time. Cotter mentioned the case of Maw v. Jones(2). CONOLLY, J.: I am of opinion that the question submitted to me must be answered in the affirmative. The question should have contained the addition, "if it be shown that substantial damages "resulted from the breaches of the agreement." The relations between the parties appear to have been somewhat peculiar, but it seems to be conceded that breaches of the agreement by the plaintiffs have occurred. From the cases cited it is clear that damages arising from loss of profits of a prospective and speculative nature may be awarded; and the Court in those cases found means to ascertain and assess the damages. The present case is similar to those cited, and there is no reason why the damages cannot be ascertained. It is for the arbitrators to say what those damages were, but they must satisfy themselves that they were the natural consequences of the breach of the agreement. The question, therefore, is answered in the affirmative, subject to its being shown that the loss of profit was substantial, and that the damages were the natural result of the breach of the agreement by the plaintiffs. Solicitors for the plaintiffs: Hesketh & Richmond (Auckland). Solicitor for the defendants: A. Hanna (Auckland). [IN THE COURT OF APPEAL.] REX v. CLELAND. Criminal Law-Perjury-Evidence of Falsity of Oath--Prior Contradictory The fact that a person accused of perjury made a statement, on an occasion prior to his giving evidence on oath, absolutely contradictory to his subsequent statement on oath is not sufficient evidence of the falsity of his statement on oath to justify a conviction, although the prior contradictory statement is testified to by two witnesses. Dicta in Reg. v. Hook(1) followed. Rex v. Knill (2) not followed. (1) 27 L.J. M.C. 222. (2) 5 B. & Ald. 929, note (a). CASE stated by Denniston, J., for the opinion of the Court of Appeal, under section 412 of "The Criminal Code Act, 1893." The accused was a farmer, of Belfast, near Christchurch, and was indicted in the Supreme Court at Hokitika, before Denniston, J., on the 6th of March, 1901, for perjury. The perjury was alleged to have been committed in the District Court at Greymouth, on the 18th of February, 1901, on the trial of George Henry Lawson, William Arthur Lawson, and Edward Pring for conspiracy to defraud by "salting" a mine or mining claim with gold; and the accused was alleged to have falsely sworn on that occasion that he had received a parcel of gold from William Arthur Lawson in November, 1900, and that certain gold which he produced in Court was the gold which he then received from Lawson. It was proved that he gave this evidence at the trial referred to, on the 18th of February, as a witness for the defence; that he was afterwards recalled at the request of the Crown Prosecutor, on the 19th of February, and asked whether, on his way from Christchurch to Greymouth to give evidence, he had not told two persons, H. Cole and A. C. Broad, that he had not received gold from Lawson, although Lawson had promised it to him, and that, although he had made an appointment to meet Lawson on the first day of the Cattle Show at Christchurch, Lawson had not turned up; and that in answer to this question he had said that he had not said so, but that, on the question C.A. 1901. July 5. |