Feilding S.M. Court.

Feilding Star, Volume XVII, Issue 173, 25 January 1896, Page 2

Feilding S.M. Court.

Friday, January 24th, 1896. (Before Mr R. L. Stanford, S.M.) The following cases were heard after we went to press yesterday : — Ratliff Bros. v. P. W. Corby; claim £30. Mr Esam for plaintiff and Mr Prior with Mr Fitzherbert for the defence. This was a case in which the plaintiffs sought to recover commission on the sale of the Empire Hotel, Feilding, which, it was alleged, the defendant disposed of knowing that plaintiffs had procured a purchaser who, they alleged, was prepared to and did close the agreement. Violet Roskruge deposed : On December 9th of last year received a letter from Ratliff Bros." relative to the Empire Hotel ; came to Feilding on the 10th and sew them and Mr Corby, from whom she arranged to take over the Empire Hotel for £450 for goodwill and stock and furniture at valuation ; this was verbally arranged with Mr Corby in the presence of Mr Sandilands ; on December 16th was in Wanganui when a tele* pram was sent to her at Marton ; on December 17th came to Feilding, where she was met by Mr Ratliff, with whom she went to Mr Corby, whom she told she had the deposit of £50 for the Hotel ; was prepared to purchase the Hotel on the terms arranged, but Mr Corby told her it was sold the previous night. j Cross - examined : Was taking the Hotel for her husband ; was not asked to sign an agreement binding the bargain ; Mr Corby did not ask witness to pay a deposit ; her husband couldn't sign a cheque as the money was in witness' name ; Mr Corby told her on Dec. 17th that the property was sold ; was not told by Mr Zohrab that the place was as good as sold to Mr Palmer. S. S. Ratliff, deposed : Was a member of the firm of Ratliff Bros., commission agents ; the sale of the goodwill of the Empire Hotel was entrusted to him; defendant first wanted £500 for the goodwill and furniture at valuation, or £1150 for the goodwill, furniture, and stock at valuation ; on December 3rd received a letter from defendant stating he had reduced the price by £50 on the representation of Mrs Roskruge; Mrs Roskruge agreed, on December 10th, with witness to give £450 for the goodwill of the Empire Hotel ; on December 16th Mr Sandilands wrote to defendant stating Mrs Oliver would agree to transferring the lease to Mrs Roskruge ; was quite sure when witness saw Mr Corby at 4.30 on the afternoon of December 16th he agreed to let the matter stand over till next morning ; when Mrs Roskruge came down went with her to see defendant, who told them they were too late the premises having been sold the previous night. Mrs Roskruge then told defendant she had the deposit and was prepared to fulfil the agreement ; on December 10th delivered a bill to Mr Corby for the amount of commission. To Mr Fitzherbert : When defendant gave instructions to sell his hotel it was agreed that the commission was to be £30 ; had no writing to show what arrangement was made about the commission ; Mrs Roskruge was introduced to him as wanting an hotel, and witness showed her through the Colyton and Empire hotels ; was subsequently told by Mrs Roskruge that all was arranged about her taking the hotel, excepting that the consent of Mr Cattell, one of the trustees, had to be obtained before the transfer, could be obtained ; would swear that Mr Corby did not say on December 16th that if Mrs Roskruge did not close that day he would close with another person ; the sale was concluded on December 10th, but no deposit was made ; Mrs Roskruge told him on 10th December she was prepared to pay the deposit as soon as Mr Cattell's consent came ; on December 16th wired to Mrs Roskruge, "If you want Empire Hotel, come down or send deposit at once :" the £50 was not sent that day, but Mrs Roskruge came down next day ; Mrs Roskruge and witness went to see Mr Corby on December 17th, they being then told the premises were sold ; after this Mrs Roskruge produced a cheque and said she had come down with her deposit and intended getting the hotel ; did not know whether Mrs Roskruge was asked, and refused, to sign an agreement in Mr Sandiland's office. Re-examined: At 4.30 on December 16th Mr Corby showed him a letter to the effect that another person was after the hotel, and witness told him that he couldn't sell until Mrs Rosbruge refused to have the place, and it was then arranged that the bargain was to be left over till next day. Mr Prior submitted the plaintiff was not entitled to any commission until the binding agreement was completed in writing and that the case should be nonsuited. Mr Esam contended the action was brought on an express agreement. Mr Fitzherbert replied that there was no sale as the agreement could not be completed until put into writing. His Worship in giving judgment said it appeared to him that it was essential that the contract should have been in writing in order to put the commission agent in a position of being able to claim his commission on the sale. It was his duty to get the agreement put in writine and the purchaser to sign it if that is not done and the sale does not come off he is not in a position to claim his commission on an obortive sale. The plaintiff was nonsuited with costs 345, solicitor's fee £2 2s and witnesses expenses. Abbott, Oram and Co v. D. P. Barrett, claim £46 19s lid. This was an application by defendant to take evidence. Mr Reade appeared for defendant and Mr Esam for plaintiffs. D. P. Barrett deposed : Was sued on three P.N 's signed L. M. Barrett; witness' signature was not attached to the P.N's. Examined by Mr Esam : was an hotel keeper since last April ; previous to this managed his wife's drapery shop for about 18 months ; bought from plaintiffs for Mrs Barrett ; witness' wife's stock was destroyad by fir© in Feilding about a year ago ; the stock was insured for £700, a cheque for which amount was paid to her and she gave it to witness ; placed it to his own credit in the bank at Feilding and paid out of it and other amounts bills due by his wife ; a little of this money went to purchase witness' interest in the Colyton Hotel ; admitted promising to pay the balance of the amount due to plaintiffs if they would give him time. Re-examined : Out of tho profits from his business he had been reducing his wife's debts. Evidence was heard on an application by W. Bell for a ruling of the court as to whom certain monies (£4O 18s lid) duo by him on a bushfelling contract was to be paid. Attachment orders had been laid against the amount by Messrs C. Goodwin, T. W. Hall and G. S. Hodgkinson and judgments were subsequently obtained by them against W. Davy for, it was alleged, wages, amounting to £19, £25, and £18 respectively on th?s contract. These cases, heard at a previous sitting of the court, were undefended and judgment was given accordingly. During the progress of the contract A. H. Tompkins, assuming the men (five) to be partners, bad received nn order signed by Davy aud Patterson on the employer, Wm. Bell, for £28 for stores. The three plaintiffs now disputed being partners with Davy and Patterson, alleging they were wages men working for 30s a week and "found," and j that their claims took precedence over i the claim by Tompkins. Mr Reade ap- '. peared on behalf of Goodwin, Hall and -

Hod^kinßo^a^dVMt-*ißa»m.app^red%r Tompkins and Belli Wm. Bell was examined and deposed to letting a bushfelling contract to Davy, ' Hodgkinson, Goodwin and Patterson ; Hall joined the camp a few days after it was pitched ;' witness fold the. men to ; agree between themselves as^to whom witness was to deal with andafl^cpn-y suiting his mates Davy told him (wit- y ness) that he and Patterson would conduct the business ; these men signed the contract and money was paid to them y or to their order ; the contract was completed on Christmas Day, when the bush .- was measured, and witness now held, £-0 ? 18s lid, which amount he was prepared to pay into conrt ; Davy and Hall went for a settlement, Patterson having left before the contract was completed, and nothing was said about any of the men working for wages ; he understood the men were in partnership. Wm. Davy deposed : Was defendant ; in the actions brought against him by Hodgkinson, Hall and Goodwin ; signed a contract with Patterson to do work for Bell ; there was no undertaking that witness was to pay wages ; they Were mates ; Patterson went out of the contract towards the end of November ; did not defend the cases because he was so far up country and they said they had a clear case against witness; the other members knew of and consented to witness and Patterson giving the authority to Tompkins ; the orders produced signed Davy, Patterson and Co., were in Hodgkinson's writing; the whole five was the " Co." ; the five of them were owing Tompkins £28 ; they had promised to pay Tompkins through Bell ; was desirous that Tompkins should be paid Ont of the £40. Arthur H. Tompkins deposed: Had an account against the partnership ; all of them, excepting Hall, went into his shop and asked witness to supply them with stores ; the partnership owed him £30 and he agreed to take £28 in settlement ; they all owed him individual accounts in addition to tbis amount ; had applied to Mr Bell for payment of £28 by the authority of an order. Geo. E Bell deposed: Davy told witness the names of the men who were to go into the contract with him (Davy) as mates, mentioning the five in this case. The defence was that there was no partnership, and Mx Reade called Thos. D. Hall, who deposed to Patterson promising witness work and to His going up to work in Bell's bush ; was engaged previously at 80s a week and' " found " ; denied going into partnership with Davy and Patterson ; nothing was said about wages when he first went tb the camp. Chas. Goodwin deposed : Knew Davy and Patterson; saw the latter, who asked witness to work for them ; Davy and Patterson saw the bush and signed the contract ; knew nothing abont Tompkins' account;, was engaged by Davy at 30s a week and found ; was not a partner with Davy and Patterson. Cross-examined : May have gone: to Tompkins' store with the others ; it was not stated, to witness' knowledge, that be was a partner. G. S. Hodgkinson, deposed: Was employed by Mr Davy on the work in question as a wages man, and not as a mate. His Worship said the evidence given by W. Bell, the employer, was clear and showed tbat the men were working as partners, but tbat at his (Bell's) suggestion Davy and Patterson were appointed to conduct tho business for convenience. The evidence given by Tompkins was strongly in favor of the belief that ihe men were partners for he kept a partnership as well as individual accounts for the men. This was a recognised method of proof that partnership existed. Ho made an order tbat Tompkins' claim of £28 be deducted from the ±40 18s lid, and that the balance be divided®™ rata between Hall, Goodwin, and Hodgkinson. Solicitor's fee of £2 2s was allowed. The court then adjourned.