SUPREME COURT.

Gisborne Times, Volume IX, Issue 873, 24 April 1903, Page 3

SUPREME COURT.

ALLEGED ILLEGAL SEIZURE OF GOODS. (Deforo Ilia Honor Air Justice Conolly.) At tho Supremo Court yesterday an notion was brought by Thomas \Viiliam Iluckctt against Hatnon and Smith, commission agents, of Gisborne, for vaiuo of goods alleged to be illegally srixed and sold, amounting to £2O, and the sum of • £IOO as tresp iss, and £7O special damages. Mr W. L. Rees appeared for the plaintiff, and Air Nolan for defendants. The plaintiff in his evidence stated that in 1000 and 1001, he was licensee of the Murowai Hotel. He left the hotel on January 1, 1902, and employed Stubbs to collect his book debts. Stubbs collected somo of the debts, but witness bad not received any statement or money from him. Witness mado application to .dr Stubbs aovoral times, fn April last Stubbs was collecting for a man named McKinley, to whom witness owed money, and witness told Stubbs to pay McKinley out of the money ho was colluding for him. Witness arranged for Stubbs to pay Mo Kinley, and gave Stubbs a bill for £2O. Witness got £lO from his wife when he entored too Murowai Hotel, She asked him to get some money to pay an account owing to Williams and Lottie, and asked Stubbs for some of the money collected, but was told by Stubbs that lie had not been üblo to make up tho books. J.n July, 1902, his wife’s promissory note of £do came duo. Ho asked Stubbs to give him £25 out of tho money ho had collected for him to pay it. Stubbs replied that ho was sorry that ho did not have tho moody himself, and not having mado up the books did not know how they stood. Wit- i ness said ho must havo the money that day, as ho owed it to his wife, and must gut it. Stubbs said ho did not know how ho would manage it, and then ho told witness if ho could get a bill backed by his brother lie would be able to get the money. Witness told Stubbs that bo did run. like to bother his brother because he had endorsed a previous bill for £2O. Stubbs asked if witness’ wife had no security to give to his brother for endorsing tho hill, uui ho replied that sho had ouly a sowing machine, trap etc., value of which was about £25. Tho brother ugroed to tho bill of sale, which was given to him. The first promissory noto of £2O, givon in April, was renewed twico last year for tho same amount. Tho only reason Stubbs gave for not taking up the bill was that ho did not caro to dostruy the noto as ho had been too busy to make up his accounts. The .piomissory note of £25 was renewed for £2l 10s. It was not taken up, and Stubbs guvo tho samo explanation that ho was very sorry, but ho had not timo to make up Ins books. lii January witness received a letter from Hamon and Smith on tho loth of tho month.

Continuing, witness gave particulars of inter views thut he had hud with Stubbs and Hu.won and t'Tuilh in regard to the promissory notes* Ho reminded his brother to lift his bill of salo which was lying in Stubbs’ oflice. lie asked either Huuiuu and Smith about it, and was. told it was all right, and that it was lying in the safe. The next thing they heard about the matter was on receiving a letter from Hainon or Smith that the promissory note of £\>A 10s was due on February 25th, and requiring immediate payment. Witness thereupon put the case in Mr Hoes hands. On March 3rd his wife received a notico that Hamou and Smith intonded to sell under the bill of sale. Witness’ solici-

tor replied immediately, pointing out that Stubbs owed money to witness, which covered the promissory notes, and stating that ho had reason to believe that Mr Hainon had been a partner in the firm of Stubbs and Co., bad supplied the capital, and shared the profits, also stating that plaintiff wished to aeo accounts between Hamou and Stubbs before making any payment. On March 4th L. P. Bulleu came to witness’s house, and stated that ho wished to see the contents of his house on a warrrant from Turnbull and Co. Wituess asked him if ho did not come on behalf of Hainon and Smith, stating he intended to tight the matter out with them. Button stated ho came on bo half of Turnbull and Co., but afterwards said that ho was there for Hainon and Smith. liis Honor said the point in tho case so' nod to bo whether plaintiffs were victims of fraud by Stubbs and whothor tho

defendants were partners to it Witness presented Stubbs’ bill of X2O to the Bank of Australasia, and it was endorsed “ account closed.” Ho was avvaro that his brother and wife had been sued in the Magistrate’s Court for the balance of tho promissory noto of £24 10s not secured by tho bill of sale. An injunction against these proceedings was asked for. Thomas William Hackett stated ho was aware that Stubbs had been collecting for his brother. When tho first promissory note was given he understood that Mr Stubbs had tho money, but that the bill was given simply in order to raise it. Regarding the £25 paid into the Bank by Stubbs, his brother had rung up from Murowai about somo money collected by Mr White, and witness visited Mr Stubbs to soo that it was paid into his accouut. He did not tell his brother that it had been paid in. Witness remembered endorsing tho bill for £25. Stubbs stated it was a mere matter of form, as ho owed witness’ brother more than sufficient to meet it, but he would have to collect it outside. Witness endorsed all renewals. When Humor, and Smith’s letter was received witness went with his brother to Stubbs’ office Outside they mot Mr Hamou, and witness pointed out that the bills were only for accommodation. Inside tho office Humon said that a largo sum of his money had been used to run Stubbs and Co.’s business, and pulling out a roll of promissory notes said : “ This is where my money has gone.” Hamon added : “ But I think it will bo all right, and I will get my money back.” In conversation about tiio X2O note, witness refused to pay it off, stating ho did not think it right or just. Mr Smith said he would look to witness for the money, while witness’ brother remarked: “ Why should we this money when wo don't owe it ?” Smith then asked Stubbs if ho owed Haokett money or whether Hackett owed hitu money, and Stubbs replied that ho owed witness’s brother sutficiont to cover tho two hills. An arrangement for tho renewal of tho £2O bill to tiamon and Smith was agreed to. Mr Hamon referred to the othor note for £25, and Smith remarked that witness was all right, as ho had a bill of sale. Hamou stated that tho bill of sale was all right, as it was very likely in thsir safe. Ho understood tho bill of sale was given in his favor by his sister in-law. Ho remembered bis sister receiving a letter concerning tho bill of sale. When in Hamon and Smith’s office he heard them talk about serving a notice on Mrs J. Hackett, and witness remarked that she was not in a fit state so to do. Witness did not exactly know whon lie endorsed tho promissory noto. Ho said that TIC was commission for Scubbs for the sale ot tho Murowai Hotel, which ho did not soil, and he understood that the balance was to go to an account which his brother owed Me Kin lev. Mr Nolan : Had you yourself any communication with Mr Stubbs as to tho paying of McKinley? Witness : Not that f can remember. _ Mr Nolan then produced an order which was signed, 11 T. W. Hackett,” and asked witness if that was his signature. Witness thought that it was his signature, but had no recollection of the document. By Mr Nolan: The .£2O bill was restowed several times, and it was ultimatcly renewed to Hamon and Smith, for Which ho paid X2. The reason witness paid the X2 was becauso believed that tho other promissory note given by Stubos would meet the requirements and the cost of renewal. He did not enquiro whotner .the £2 would bo refunded. On the 1-ltli January witness saw Hamon and Smith at their office. He had seen Mr Smith either that morning or the previous one. Witness was not clear on the point whether Mrs Hackett initialled an alteration in the £24 10s bill or whether she had any conversation with him on tho point. Witness was not certain whether his brother said something about tho mitiiaHim' of the bill. He met Smith at the Club for tho first time on January lb, where he told him that Stubbs owned Ins brother money. Witness remembered Smith suggesting to go to tho office, but could not say that it was to see Stubbs Bv Mr Nolan : Ho went to the office pnd there saw Stubbs. Mr Bmith sug-

gested that Stubbs should give witness a bill. The bills were given, and ort the following day witness paid ill!. Witness met Mr Smith after the transaction, and t tanked him for getting tho bill from Stubbs. Witness dirt not tell Smith that value Jiad been received for these two bids. Ho was present when the X'24 JOs bill was given in August, and was aso present when the bill of sale was given. Mrs Isabella Hacke't and Messrs Dunlop and Stubl>3 were also present. Witness took his sister-in-law to the office to complete the transaction. Witness could not say whether tho bill of sale was explained to Mrs Hackett or not. He himseif had never seen it except in Mr Stubbs's hands. When witness went to the office on the loth or Mth January the bill of salo was spoken of, and Smith said he knew notiling about it. Isabella Hackett, wife of W. L. Hackett, said she lent her husband JMO when he went into the Murcwai Hotel, and that money was still owing in the month of August last year. Witness had to mc-4 a p.n. owing to Williams and Kettle forX‘3o I n consequence of : ta'.einc.rils made by her husband, she signed the p.n. at her bouse in Gisborne. Witness signed the bill of s tie in Mr Stubbs’s office, ami believed it was payable to her brother inlaw.

His Honor asked if tiie bill was ex plained to I h>: witness.

Witness sail sho remembered Stubbs reading something. She did not know that alio had signed a bill of sale to Mr Stubbs himself.

r/i-t Honor asked who were present when the bill "/as signed. Witness said that Mr Hackett and Mr C. Dunlop were there. His Honor asked tho witness how long it was after she signed the p.ri. until she signed the hill of sale.

Witness said she did not remember. His Honor said one of tho questions to bo decided was whether there was a fraudulent action on tho part of Stubbs, and if so what liability foil oil tho defendants. The issue of fraud uri tho part of Stubbs

was one to be tried. It was like obtainiug goods by false pretences, and brought up tho question, “ If you knew this person was not what ho represented himself to ho would you have given the goods ?” Mr Keos : If you had known that this

bill of sale was to Mr Stubbs and not to your brother-in-law .would you have signed it ? Witncs : No. The first knowledge she had of signing the bill of salo to Stubbs was in a letter of March 3rd from Hamon and Smith. Mr Itees : Did the letter cause you agitation and fright ? Witness : Yes.

By Mr Rees : Witness was prematurely confined on tho following day, and the seizuro of the goods and tho loiter had something to do with the fact. By Mr Nolan : Witness remembered tier husband being laid up in July last,

and remembered Mr Stubbs coming to see him. Witness did not see her husband sign any documents for Stubbs on that occasion. Slio did not remember signing tho X 25 promissory note in Stubbs' offico,

but to tbo best of her knowledge she signed it in her own shop. Her husband took the bill up to her. Witness had met Mr Smith on one occasion at the Club—sometime in January last. Ho wanted her to niter or initial a promissory note. She initialled it according to Mr Smith’s instructions. Witness remembered Mr Stubbs up valuing a sowing machine, etc., but did not remember whether it was boforu or after tho signing of the bill of sale. By Mr Rees : Witness remembered Mr Stubbs when in his office boforo the bill of sale was signed ringing up her husband. Tho assignment of Stubbs and Co. to Messrs Hainon and Smith was put in. Tho case was then closed for the plaintiffs. Mr Nolan, for tho dofonco said it was not disputed that Stubbs was debt-collect-ing for W. L. Hackett. Tbo only evidence as to partnership between Hnuion and Stubbs was tho statement that Hamon said Stubbs was using his money. His Honor hold that th'ero was evidenco on this point to answer. The bill of salo was tho most important matter. Then there was the point of tho knowledge of Hamou and Smith of these transactions. Mr Nolan o intended there was no evidence that Hamon and Smith had any knowledge of tho transactions between Stubbs and Hackett up to January 13 th. Mr Rees : Ho is trying to get the decision.

His Honor said ho was not giving any decision yet-. Mr Nolan admitted tho seizure of tho goods, but othorwiso tho defeuco was an absolute denial of tho whole of tho state-

ment of claim. Ho would provo chat plaintiffs wore never in credit when tho p.n.’s were given. The first note was given for a commission of XlO promised to Stubbs, and another, X 9 12s sd, that was advanced to McKinley on behalf of Hackett.

His Honor said that Stubbs never know how his accounts stood.

Mr Nolan said ho would provo that tho accounts were rendered. liis Honor said that ho had never asked witnesses about that.

Mr Nolan said ho would prove that the second note was given under different circumstances to that stated by plaintiff. The p.u. was in excess of what Mr Stubbs owed Hackctt. He would show that Haiuon and Smith paid full face value for the promisory notes. Hamon and Smith know nothing about Stubbs’ transactions with the Haeketts until Jan. loth.

Mr Nolan said that Hatnon guaranteed .£IOOO to the Bank for p.n.’s, aud that Stubbs discounted them. Tho Bank called them up, and full face valuo had to bo paid for them. The p.n. was not amongst thoso in tho assignment, because it was not in tho Bank. He would prove that tho bill of sale was road to Mrs Hackett.

George Stubbs, commission agent, residing at Paiutahi, stntcd that he was carrying on business in Gisborne until the end of December He knew the Hackotts, and was collecting debts for W. L. Hackctt. The arrangements were 10 per cent, commission up till 1901, after which fresh arrangements wore made, and the new arrangements wore 71 per cent-, on the sum paid to Hackett, and 15 per cent, on sums paid to himself. He first paid plaintiff on Nov. lGth, 1901, £ci on account. A telephone message on sth December, 1901, asked him to pay into the bank the sum of £25 3s, the amount being collected by Mr White ns per orders given by shearers. Mr Hackett was perfectly aware of this occurrence, and thanked witness for being so prompt. Witness also paid into bank .£ll or £l2 for Court fees. r lho balance was struck at the end of December, and in January witness saw his clerk make out the statement. Witness could not say whether Hackett received the statement or not. After the making out of the balance, one or two other things dribbled in up to the end of tlio year. In January Hackctt was slightly overdrawn on the collecting account, and also owed witness £lO commission agreed upon. That p.n. was renewed in April. July, October. No special arrangements were made as to what way the p.n. should be paid. Witness understood that it was going to bo paid in the ordinary way. When the p.n. eaiuo to hand ho had not had funds in hand to meet it. When it was renewed there was nothing paid in cash for doing so. He gave witness authority to debit it with £1 10s. W. Haeuott came to witness and wanted him to pay £25 on the trap and sewing machine, etc. Witness offered to go and value the security for the feo of half-a-guinea, which he agreed to pay. Witness went up that night and valued it alone. Tho security was not worth half tho money. Ho said he must have the money, and witness told him that ho must got further security. Hackett asked witness it ho would take his brother Tom’s endorsement, and witness replied yes. The next day W. L. Hackett rang him up on the telephone to complete tho security. His wife came into the office to sign papers. Thoy came to the office as appointed, and witness went to the door and called Dunlop in to witness the signature. Witness read the bill of sale to them in Dunlop’s presence. The bill of sale was signed, and tho p.n. was endorsed at the same time in Dunlop’s presence. Witness paid them £2l 19s 6d for the bill after deducting tho usual discount fee, 10 per cent., and valuation fee, 10s 6d. When the p.n. became due Mrs Hackctt and L. W. Hackett paid £3 for renewal for three months. Tho £2-1 p.n. was ultimately handed over to Smith by witness. Smith lent him £2OO on that and other bills. Witness nover told Hackett of any transactions with Smith. Ho told. Hamon

on the 14th January about the transactions. Smith was present, and also the IJacketts. Prior to that he had told them nothing. Witness said that Hamon and Smith were present because of the X2(J bill that they held. Smith got impatient and asked witness how much he thought he owed W. Hackett, and he replied that he believed less than ,X2O. Smith suggested that it would only be fair to give W. Hackett a bill for 120, and witness and he could settle the difference afterwards. Hackett agreed and witness gave the bill. Later on witness’s bank account was closed, and he omitted to take a note ol the due date of the bill, which was presented on Friday while he was away in Napier and not paid. He would go through it with Mr Rues at any time and pay it. Mr Rees: We want the balance. By Mr Nolan: The hill is in excess of the amount owing to Hackett. Ho that day discovered an error by which Hackett had been overcharged, but the balance was still against Hackett. Ho was present when the X2O bid was given to Hamon

and Smith. Witness had authority I credit any of the biils with the money col lee ed. Witness never had any money ti their credit to upiiffc either of tho bills

much loss the two. There was not much conversation about the arrangement of the hill of sale and the p.n., but witness pointed out to T. Hackett this bill of sale would lessen his risk. Hackett laughed, and said that sort of thing would never happen. Mr Hamon was not in partnerhip with witness during the year 1902. lie lent witness no money in 1902, and he owed him (Mr Hamon) nothing. He was

icver at any time in partnership with him

Witness collected his rents for him, for which he charged him commission, and Hamon had no interests whatever in

the profits made by witness. Hamon guaranteed witness an overdraft in the bank of XIOOO, which was reduced to writing - In 1901 ono was made for XSOO, and in 1902 another for XIOO. Only one

document was effective in 1902. On the

3rd January witness agreed verbally to soli his business to Hamon and Smith. On the 4th tile agreement was made by Hamon and Smith. The goodwill was £'2oo, and tho current bills full face value.

His Hotter : Tho assignment speaks for tsclf.

Witness said ho paid up his overdraft and closed the bank account. Hainon and Smith, when they recoivod the p.n,, knew nothing of arrangements between witness and Hackett.

By Mr Rees: The accounts as shown in he ledger wore divided into two lots, the irst up to April, 1901, which witness did iot see rendered, and tho other one up to larch, 1902, which was rendered. Wit-

ness had received no other money than that which was shown in the accounts produced. Witness could not say that his clerk had received other payments. Witness charged discount on all bills except one. The reason witness had not given a full statement of accounts was that he had to' go to Wellington. Witness had not time to strike a balance. Ho had no writing to show that Smith lent him X2OO on bills which amounted to less. Witness received botween X9OO and XIOOO from Hamou and Smith about the Bth of January, which ho paid to his account in the bank.

L. T. Syrnes, manager of tho Bank of Australasia, doposed that he knew all parties connected with the present action. Stubbs, trading as Stubbs and Compuny, bad a banking account at the Bank of Australasia. Tho account was closed on January 13th, and the account was guaranteed by Winter John Hamon. To his knowledge Hamon w_«s not a partner in tho business, which was carried on solely by Stubbs. The bill produced for X 24 10s was put into the bank by Hamon and Smith, who were the last endorsers. Hainon and Smith took all tho bills that

tho Bank hold for Stubbs and Co., and puid full value for them.

Hugh White gave evidence corroborating aoveral statements made by Stubbs. Witness stated that he rendered one account and delivered it to Hackett. William Smith, of the firm of Hamon and Smith, was examined at some length by Mr Nolan. ■ Witness detailed a con-

versation that ho had with the Hacketts in regard to the money Stubbs owed them when they agreed to take a bill from Stubbs for the amount due. His firm had paid Stubbs face value for tho promissory notes held by him, and which included those from iiaekott.

By Mr Rees : As far as ho could remember his firm were registered, and money-lenders on tho day they took over tho business. When ho said that his firm paid the faeo value of the hills ho did not mean that Hamou took the bills for the amount guaranteed to the bank. Hamon told witness that he was in no wuy a partner with Stubbs. When witness went into partnership with Hamou and Smith

they opened au account in the name of Hamon and Smith foe .£llOO, each contributing TDSO. The bills taken over from Stubbs were paid faco value for, but he could not say whether Stubbs’ account at the bank was closed. When he asked Mrs liackott to iuitial an alteration in the bill he did not known that Stubbs owed Hucketts money. He knew afterwards that ho did. The bill of sale was paid for at face value. At the time ho received the bill of sale he kuew that the accounts between Stubbs and Hackett had not been settled. He heard mention of a hill of sale on the 14th. Ho told Hackett that Hamon and Smith held a bill of sale to Stubbs and Co., signed by Isabella Hackett, and that it would bo assigned to the now firm. Ho did not understand that one bill from Hackett was given to meet another. Stubbs stated that he thought that the amonut ho owned Hackett was about Tl 7. He knew when he took the bill of sale that Hackett had a claim against Stubbs. To Mr Nolan : Owing to pressuro of business tho hill of sale was not assigned until 23rd January.

James Charles Dunlop, accountant, residing in Auckland, deposed that he kuew tho plaiutill's and defendants. He remembered witnessing the bill of sale previously referred to. Mr Stubbs explained that ho was making an advance to Mrs Hackett and was taking a bill of sale over certain securities. Stubbs road over the bill of sale in the presence of Mr and Mrs Hackett, and witness and he signed. Isaac P. Bullen, assistant bailiff in tho Magistrate’s Court, remembered going to iluckett’s and seeing the goods enumerated in tho bill of sale held by Hamon and Smith, He spoke to Mrs Hackett, who was very upset at tho machine going away. by Mr lleos : lie did not tell Hackett that he was acting for Turnbull and Co. tie told him that lie was executing a bill of sale for Hamon and Smith. 3\ll- Nolan said the case could he boiled down to three points. First of al! as between .Stubbs and (lie plaintiff the question of fraud arose, and there was not tlie slightest evidence of that.'” Ut the second place as between the plaintiff and the defendants tite question of fraud could not arise unless some evidence was brought lot ward to show that they were parties to that, fraud ; that they were aware of it and took benefit of it. The third question, assuming that the plaintiff obtained these bills and this was not questioned, was whether they paid a fair consideration for them. Counsel contended that llamon and Smith were not

in any way cognisant of the transactions between Stubbs and the llacketts prior to their taking over these promissory notes and paying consideration for them. "The whole of the evidence throughout showed that nothing was Said to either of the defendants by anybody in reference to the promissory notes, nor did they know of the position of affairs as between Stubbs and tite liackotts imtil the 14th January. Continuing, Mr Nolan said that in no possible way could it be shown that Hamon was a partner oi Stubbs. He had guaranteed an overdraft for £SOO for Stubbs, and was receiving as consideration the sum of £5 per month. Several witnesses had slated that I-lamon was not a partner of Stubbs The only evidence of partnership was the statement made by Hackett that Hamon had told him that Stubbs had £200(1 of his money and all that he had to show for it was the bundle of promissory he (Hamon) hekl in hi

hand. His Honor : The statement, was made by H a ckett, and has not been denied. Hamon lias not been called to deny, i.t. £5

■ .Mr Nolan : All that I can say is that if your Honor finds that under the , Partnership Act there was a partnership in the present case, then I cannot help your Honor doing so. iI is Honor: I won’t stand instilling remarks like that, Mr Nolan. I

have treated you with perfect civility throughout, and I expect no less from you. Mr Nolan: I am sorry if you take my remarks us incivility on my part, your Honor. They were not intended so.

i lls Honor : J consider them oiksi w-.

Mr Nolan : 1 did not ini end the

us such. iiis Honor : If you did not -intend it, you evidently forget yourself tor the moment. Mr Nolan then continued his an dress.

At a later stage of the proceedings iiis Honor, referring to Uic witness .Stubbs, said that lie had advised nun at tlie commencement of his evidence to be careful or there would lie a grave charge pending against him.

The iirst part of Mr Rees’ addres: efetred to liie question of partner iliip, counsel contending tlial if Ha

nion gave liis capital as lie was stated to have done, and afterwards took possession of the whole proceeds of the business, no stronger evidence of partnership could tie required. Mr Rees dealt strongly with the evidence given by .Slubos, who, lie said, had had the audacity to tell

His Honor that he had not had time -since March to make out this trum-

pery account,. lie (Mr j Kees ) contended thut the statement by ,Stubbs Was a falsehood—for a man who could find tfmc to go to Auckland, Napier, and Wellington, and who had been out of business for tiic past six months, must certainly have had lime to make out such a small ticcount. To tell the Court that he

had not time was a falsehood, and Stubbs.must have known it. Counsel

uLimited that, the hill of said

to have been given to (lie endorsers, and not to Stubbs, and that Hamou and Smith were in every way liable. Damages were claimed on account of them putting into force a bill of sale liis Honor reserved judgment until this afternoon.