SUPREME COURT.

Evening Star, Volume VIII, Issue 2348, 11 October 1870, Page 2

SUPREME COURT.

IN BANCO. Tins Day. (Before Mr Justice Chapman and a Special Jury.) ANDERSON AND] ANOTHER V.TbURKE AND ANOTHER. MrMaccassey ami Mr Cook appeared for the plaintiffs, and Mr Barton, Mr Smith, and Mr Stewart for the defendants. Mr Cook stated the plaintiffs’ case as follows ,■ —-- J,n March, 1868, the plaintiffs (Messrs Anderson and Mowatt), and the defendants (Messrs J. L. and C. Burke and Messrs Roysc, Mudie, and Co.), entered into an agreement to buy and sell grain. The grain was to be bought, in New Zealand, in this Province, for the supply of the Melbourne market ; tbo price of grain being very high in Melbourne at the time. Nothing was to be done either in the way of buying or selling without the consent of two of the parties to the agreement. The arrangement was recorded in a short memorandum of agreement, which was dated March 16, 1868. [The learned counsel read the agreement, which was to the following effect : Messrs Anderson and Mowatt, Burke and Co., and Royse, Mudie, and Go., entered into an agreement_for the purchase of grain and produce, in which they were to participate equally as to profit or Ipss. Burke and Co. wore to keep ac:ounts ; the grain was to be stored iu some good store in Dunedin at the lowest possible rates ; and no sale was to be made without the consent of two of the parties to the agreement, and no action iu connection with the speculation to bo entered into without the consent of two of the parties.] On the same day as the agreement was signed, an understanding was come to between the parties that the plaintiffs were to be the sole buyers of the grain. There would lie no great controversy as to the understanding, but as to its exact terms it would be for the jury to decide. The plaintiffs siy that the agreement was that they were to be the sole buyers of grain in Dunedin, it having been thought that being millers and large buyers of gram, they would perhaps be better able to deal with farmers than brewers would. As to the wording of the second paragraph of the agreement [that relatipg to the storing of the grain], the jury would have t* put their own construction upon it. Tbo plaintiffs say that if was only intended to apply to Dunedin, and for this very obvious reason. If grain were purchased at a great distance from Dunedin, there would be very considerable charges for conveying it hither —3d or 4/1 per bushe], which would, of course, diminish the profit very materially, whereas if tbo grain were purchased in and around Dunedin, the cost of cartage would bo very considerably reduced, and the profit increased. The venture was enterd upon for somewhere about three months, and during that time L 50,000 was spent in grain. In starting this venture, nothing was to he advanced by the parties from their owp resources, it was to be done by what was elegantly termed in the trade “financing,” which meant gambling funds all tbo fluids were to be advanced by the banks ; and it was to be done by means of cross-acceptances, some times by bills—bills drawn sometimes upon Burlce by Anderson and Mouatt, sometimes the other way, and sometimes by Royse, Mudie, and Go. During the two and a-half mouths, a very large quantity of grain was purchased, and this large sum of money was expended. Some little time before the termination of the agreement, Royse, Mudie

and Co. went out of the concern for reasons which need not be enquired into, so that the whole matter lay between the plaintiffs and defendants, and as far us profit and loss were concerned, Royse, Mudie aud Co. might be left out of the concern altogether. Shortly after this plaintiffs discovered that Burke had been buying grain outside I'unedin, thereby forcing up the market, and violating the agreement, and thereupon they told him of their intentitiou to retire from the venture. Large quantities of grain had been purchased, market prices fell very considerably in Melbourne, aud after purchasing quantities of grain without the consent of the other parties to the venture, thereby causing Anderson and Monatt a share of loss on grain which they never consented to buy. Matters went on, but no more grain was purchased after that. Still there wore a great many bills current, aud they had to he met. The venture was continued for the purpose of winding up the concern, and the grain had to be sold in order that the bills might be met as they became due. In the month of August the parties finding there was a large quantity of grain on hand, Messrs Burke went to plaintiffs and told them there were a good many bills to be met, and the money must bo If on nd somewhere. There were about 81,000 bushels of grain in hand, and for the purp sc of converting this into money, application was made by the plaintiffs at the instigation of the defendants to Messrs Bright Brothers, and somewhere about LI 0,000 was raised upon the grain then in hand. Plaintiffs say that of this 81,000 bushels, only 3,300 bushels belonged to the venture, the remainder, nearly 61,000 belonged to Messrs Burke. The jury would have thought that business men would have all quite clear before raising such a large sum of money, but it was not done. When the accounts were made up, it was found there were very large losses on the sales of that grain. Defendants then asserted the whole of the grain belonged to the venture, and the plaintiffs contended only a very small portion belonged to it. Matters went on until October last, when an action was commenced by Mes-rs Burke upon a bill of exchange for L3ooo—one of the bills given on accon ■ t of the grain, and which it was alleged was given for accommodation by Anderson and Monatt. Ihe latter then commenced across action, and obtained an injunction restraining Messrs Burke from proceeding with their action, until accounts were taken. This had been done by the Registrar, and upon a considerable portion of them there was no dispute, but as to buying and selling there were a number of items which the jury would have to euqiure into The bulk of the grain which was bought without the knowledge and consent of the pla'ntiffs was purchased in Canterbury. Upon the defendant would be the onus of proving that the purchases were made with plaintiffs’ consent; if they did not, the items must be struck out. Plaintiffs’ construction of the agreement was, that the grain was to be purchased in Dunedin and the surrounding neighoorhood. The learned counsel then proc eded to explain some wheat transactions, in which plaintiffs’ complained that, in respect of some thousands of bushels, they were overcharged 6d per bushel; and further explained, a purchase cf 15,000 bushels of oats from Waikouaiti at 3s per bushel, but which were afterwards resold at 2s sd. Plaintiffs sought to charge defendants with a share of this loss, alleging that the purchase and re-sale were made with their sanction, which was denied by the other side. He concluded by stating it would have been more sensible had so complicated a matter of accounts been referred to arbitration ; but defendants having refused to agree to that cours?, there was no help for the jury but to proceed with their'task, over which he would wish them joy to get out of. Witnesses were called to proved a portion of the plaintiffs’ case ; after which Mr Barton proceeded to open the defendants case. The trial is likely to last severe days.