A SUCCESSFUL CLAIM

Dominion, Volume 21, Issue 112, 9 February 1928, Page 6

A SUCCESSFUL CLAIM

fce&erved judgment was delivered by Mr. E. Page. S.M.. in the Magistrates Court yesterday in the case in which J. 0. Riddell and Co., Ltd., claimed £299 18s. 4d. from F. Cofiestake. farmer, of New Plymouth, and F. W. Copestake, a cabinetmaker, of Wanganui, for machinery and goods said to have been sold and delivered it; or about March last. The Magistrate, in the course of a lengthy judgment. said that towards the end of 1926. lA W. Copestake started a cabinetmaker's business in Wanganui, and later took in a 'sleeping partner, when the business was carried on under the name of “F. W. Copestake and Co. Th’s partner was bought out of tje business. the money for the purpose being found by F. Copestake, the father of h. W. Copestake, who came down to Wanganui to work upon the premises While the father was engaged in the business orders for goods were given, and the question was whether lie father was a partner, or., as the defence set up, he was workman and had lent the money to his son for the purposes of the business. After reviewing the facta and entries in the firm's nooks exhaustively, the Court held that both .father and son were partners, and were liable unless the further defence of novation was estab, lished In April last, the business was converted into a limited liability coinpany, and it was argued that the liabilities of the firm had been taken.oyer by the company, and that the plaintiff as creditor of the firm had assented to the transfer of liability from the firm to the company and discharged the. original debtorn. The company had since gone into liquidation. The deleudants relied upon the correspondence which had passed between the paries after the torma-t-'on of the company to establish assent to the transfer of liability, but the Court held that the onus of proving assent on the part of the creditor rested. upon the defendants and had not been discharged It vr.is necessary in such a case to estvi" lish an agreement upon the tart of the creditor, express or implied, to relenso the original debtor, and the correspondence did not establish that position, but included a letter which indicated in definite trrme an intention to look to the original debtor. Judgment was given for the plaintiff for the full amount claimed, with costs £2O 12s. At the hearing Mr. 0. W. Nielsen appeared for the plaintiff company, and Mr. 0. A. L. Treadwell for the defend‘llThe claim was brought under the Magistrate’s Court Amendment Act passed last session increasing the jurisdiction ot the Court to £5OO. was the first one to be heard under that Act in Wellington.