LAW REPORTS.

Dominion, Volume 4, Issue 1203, 11 August 1911, Page 3

LAW REPORTS.

THE PARTNER. HIS WAGES, HIS ROLE, &THE CASE SIEVWRIGHT AND REVELL. Rather imusunl proceedings passed before the magistrate (Mr. W. G. Riddcll, S.M.) in an industrial hearing yesterday. The Labour Department proceeded against John'.ou and Sons, printers, for the nominal sum of .£sl, as penalty for a breach of the AVellington Letterpress Printers' Machinists' Award. The defendants have premises in Parish Street, Wellington. Mr. Neavo appeared for tho, Department, and Mr. Petherick for Johnson and Sons. The statement of claim set out that, between January and July, 1911, Johnson and Sons had employed Ernest Eevell as a competent letterpress machinist, a,nd had paid him only .£2 10s. per week, instead of b£3, as required by the award.

"This Was Not An Ordinary Breach." Mr. Neave stated that this was not an ordinary breach. It involved a question of law. Johnson and Sons were carrying on a printing business, and it was alleged that they had employed Rovell, who (if he were a worker) was entitled to .£3 per week. But, in the circumstances under which ho was employed, Kcvell received only £2 10s. per week. The case would turn a? to whether Revoll was a partner or a worker. ■ He held that the •alleged partnership was merely a colourable device to evade payment of the full rate of award wages. Mr. Neave then took a copy of an instrument of agreement between Mrs. Sievwright, James Diekson Sievwright, and Ernest Revell. Reading from this, he said that, for the sum of ,£5, Revell and J. D. Sievwright purchased one two-hundredth part of the business, which, ho remarked, was an infinitesimal interest. As far as Eevell and Sievwright were concerned, the drawings of each were to bo equal. Revell was to devoto the whole of his time to the best interests of the firm between 8 a.m. and \. 5 p.m. on working days, with 45 minutes for lunch, except on Saturdays, when his hours were to be from 8 a.m. till noon. Sievwright and Revell were to be paid overtime at Is. an hour. Tho hours prescribed for Revell were the ordinary hours prescribed by the award. Then Revell, contrary to the custom of partnerships, was deemed to be incompetent to deal with any business of the firm. Losses were not in anv way to affect tho weekly drawings of'Revell. ■ Tho most extraordinary clause was on? which stated that a division of profits should take place onco a year, and it should not be competent for Revell-to question the computation of tho profits or the manner in which

they were arrived at. So RevelTs partnership interest dwindled to vanishing point. Tho agreement was merely a device intended by the persons concerned to-defeat the law as to payment of proper wages. The alleged partner, : Revel 1, was absolutely excluded from any control and could not in any way pledgo tho partnership. He had no voice in the calculations of the profits, and was subject to the control, in all matters, of J. p. Siovwright, and there was no-pro-vision in the agreement for the ascertainment of his interest in the ovoiit of a dissolution. If the • agreement were a real agreement of partnership, the capital would he stated, and there would'bo some provision for the drawing out of tho capital by any of tho partners upon dissolution. If this were a real agreement for partnership, could not Eevell call upon the dominant partner, and the per,sqn in control of .the finances to furnish him with an account? But, in the instrument .existing, that phase was completely negatived.

His Worship asked how ,£sl was arrived at as the amount of tho claim, and Mr. Neave replied that the maximum claim of the Department was .CIO, but £bl had been fixed' as. tho nominal claim in order to allow of the defendants (if defeated) appealing "n grounds of fact and of law, instead of on grounds of law only as would be the case wore the amount .£lO.

How "The Partner" Came In. Mr. Petherick, in outlining the defence, said that it was common for parsons to enter into partnership, on such terms as those in the agreement; those without 'capital.got a small share of tho profits at first. Tho circumstances were that Mrs. Sievwright had the capital, her husband had the business knowledge, .and Revell had a knowledge of the mechanical work done in the business. Therefore, the Sievwrights arranged that Revell should onter the business, and take charge, of the mechanical department in the interests of the business. It was a constant practice taat a jnmor partner should be limited in matters of business control. Regarding the hours fixed for Revell, they had been so stipulated because it was necessary for him to be on duty during the hours worked by the machinists. Ono two-hundredth sharo did seem infinitesimal, but Revell was receiving .£2 10s. a week and a share of profits in addition. J. D. Sievwright on "The Partnership." In evidence, J. D. Sievwright stated that ho was a partner in the business known as Johnson aud He had put Mrs. Sievwrißht's money into tho business, and, later, found that, in order to work the concern to the best advantage, ' someone IKJiscssing knowledge whiph he lacked should be introduced. Revell canifi along, and witness put the position to him, and ■remarked that it would be some time, bei'oro Kevell could get much out of it. Reve'.l asked: "If there is not enough money in tho business at the end of the week, how do I stand?" So they agreed that wages should be tho first claim, and that they should draw equally.

Revell Also on "The Partnership." Revell gave evidence'. He stated that ha had been in Wellington, and out of work, and .had seen uo prospect of work. He met Sievwright, who had slated that he wanted a working partner, and Ihe witness had agreed to the proposition, lie was not a worker; ho was a partner. His opinion was that, by taking £2 10s. in tho earlier stages, tho business would in a short time staud more than union wages. Mr. Neave remarked that the business would have to yield a profit of over ,£SOOO a year for Eevell to have equalled the union wage. , Kevell, also, was proceeded against, for accepting less than £S per week.

His Worship—The Act was Broken. .His. Worship said that it seemed to him that Revolt was really a worker, and his partnership was only honorary. There may have beeu no intention on the part of tho parties of breaking the •\ct, but there had certainly.been a breach. Judgment would bo against Johnson and Sons for £3, and solicitor's fee £1 Is., and against Kcvell for £1, without costs. SADDLERS AT LAW. (Before Dr. A. Jl'Arthiir, S.M.) Dr. M'Arthur delivered judgment in tho case Thomas M'CaJI, saddler, Wellington, v P 15. Russell and Co., Ltd., saddlers, Wellington, a claim for .£ll3 7s. 3d., as damages, payments made, expenses, etc., in connection with an arrangement made to purchase a business at llunterville. I'kiinUiY Jl'Call set out Iliat uu or about May 13, 1011, Kussell and Co. agreed to tell the stock, fixtures, ujid good\rill of a saddlery business carried on at Iluntcrviilu by I'. J. l'etbeiick fur the cost price of the slock and fixtures and to give possession on payment of tho price. The amount to be paid was subsequently agreed on as .£lO cash and .0-15 (is. 2<l. by a promissory note, and on May 23 the money was paid and tha note given. The ildeiulaiit, however, failed to give delivery, and was unable to do so up to and including May 3D, when plaintill rescinded the agreement. .Russell and Co. countcrclnimod for .£lO 3s. special damages, and ,£2i> general damages, and alleged that the contract was conditional on the plaintiff employing V. J. l'ctherick as a servant in tbo business for twelve mouths from the date of the sale, and. thai plaintiff agreed to employ Petherick. The plaintiff later docliried ,'to'employ Tetherick and abaation-

c-d the contract and the sale of certain goods, and defendant suffered .l! 10 damages as a result. I.ogal and other expenses wore al?o incurred by dcfnndnnl. Counsel for plaintiff was Jlr. A. Hlmr, and for Hie defendants Jlr. C. K. Dix. His Worship said that, in his opinion, M'Call nob only enteral into a contract to buy PelhericVs bufiness but, as a preliminary measure entered into an agreement to engage J'etliprick for 12 months. The Tulp that proves testimony could not bo received to contradiei\ vary, add to, or subtract from' the lorms of a valid written instrument did not prevent partics to a written contract; from proving that (either contemporaneously or as n preliminary measure) they had entered into n distinct oral agreement on some collateral matter. Still did the rule exclude evidence of oral ußrpcmont, which constituted a condition, which showed its real nature, or the existence of a condition upon which its performance was to depend. In his Worship's opinion there had been a valid contract, and M'Call had no power to rescind it on a ground that Petherick's engagement was not included in the contract, .is to the counterclaim Russell and Co. had intimated their willingness to abandon their claim for general damages. They were entitled to judgment for .£l9 3s. on the counterclaim. WERE THE MILK CAXS DETAINED? Jaiui?3 0. Bradley, of Lyall Bay Road, mdlk vendor, sued Oorge Hutchins, . of Maungaroa, farmer, for 30 milk-cans, valued at 13s. Gd. each (totalling .£2O 55.), which, he alleged, were his property, and were detained by the defendant from June 12 until the datp of the entering of the plaint. In addition to the cans, or their value, he claimed .£ls as damages for detention.

The defendant counter-claimed .£lB 2s. 10d. as a balance money due by the plaintiff to the defendant for milk supplied. Mr. G. Samuel appeared for plaintiff and Mr. T. Holmden for defendant. His Worship decided from the evidence to fix the number of the cans detained as 20. These ho valued at 10s. each. He thought that £S would cover plaintiff's damages, and therefore judgment was for plaintiff for Jilti. PROMISSORY NOTE. A case of Edward Walter Dickenson and William Edward Dickenson, butchers, Wellington, v. James M'Leary, farmer, Levin, for X 25, the amount of a promissory note, was called, partly heajd, and adjourned till to-day. Mr. A. L. Herdmaa is appearing for the plaintiffs, and Mr. C. B. Morrison for the defendant. • - • DEBT CASES.

In the following cases judgment was Riven the plaintiffs by default:—Australian Kodak, Ltd., v. Chas. J. Jloreton, £o 16s: 7d., costs £1 B=. Od.; New Zealand Times Company, Ltd., v. Annie E. Rive. 18s. Gd., costs 25.; Whitcombe and Tombs, Ltd., t. James E. Frnser, 17s. 6d., costs 55.; BlundeJl Bros., Ltd., v. Geo. Ptidney, 155., costs 55.; same j\ J. !•'. Dwyer, 13s. Cd., costs us.; Vacuum Oil Co., Ltd., v. A. Broadbelt and Co., .£22 7s. id., costs .62 155.; and Johnson and Sons v. Frank R. Hutton, ,£2O .2s. 6d., costs £2 Us. ■ David Martin was ordered to pay .E2l Us. to S. Eov.-c and Ltd., on or before August 24, in default 11 days' imprisonment. . ■ • 1 Win. Wilson was ordered to pay .EG 17s. 3d. to John T. Fairbairn, on or before 'August 21, in default seven days' imprisonment. No ordeT was made in the case of H. Kahn t. Walter Cook, a claim for J;3 3s. Gd. ■ POLICE CASES. STOLEN PARROTS FROMU.S.S. CO. (Before Mr. W. G. Riddel], S.M.) George llenry Newton appeared to answer a charge that, on or about April 12 of this year, he stole two parrots, of tho value .of «£2O, the property of the L'nlon Company. '

The circumstances as set-, forth in eyidonco were that the s.s. Aorangi arrived here from San Francisco lost April, and had on board two Mexican parrots, consigned lo Sydney. The accused and another man had_ stolen the birds, and the present accused had disposed of one for 30s. to a bird dealer. The birds had been recovered.

: Accused pleaded guilty, and was fined •tOs., in default seven days' imprisonment. Ho. was given 18 hours in which to pay the fine. OTHER CASES. James Burns pleaded guilty to a chargo of having been drunk in Ellice Street. He was also charged with having assaulted a girl under 16 years of age. Ho was fined 10s., in default 48 hours' imprisonment, for drunkenness, and on the other count was remanded till August Iβ. Two first offenders were dealt Vith. One was a man of 74 years, who had to bo carried into court. He explained that he had caught a chill, aud was suffering badly from rheumatism. He was convicted and discharged. The other first offender was fined ss. , Sven Wilhelm Hakason was convicted and discharged for being drunk; and, respecting a charge of having committed a certain act on Lambton Quay, he was finod £3, in default 11 days' imprisonment.