SUPREME COURT.

Gisborne Times, Volume X, Issue 997, 16 September 1903, Page 3

SUPREME COURT.

CIVIL BUSINESS, (Before His Honor Mr Justice Cooper.) ALLEGED PARTNERSHIP.

Tho case of James Emanuel Cole Price Mr W. L. Bees) v. Edward Lionel DeLautour (Messrs Nolan and DeLautour) was continued at the Supremo Court yesterday morning, before His Honor Mr Justice Cooper. In opening the case for defendant Mr 'De Lautour moved that the plaintiff be non-suited on tho grounds that a partnership did not exist. The agreement produced by the plantiff did not refer to any partnership. He assumed for the plaintiff’s benefit that such an agreement did exist, and it was quite clear, he contended, partnership or a trust did not exist. He cited authorities, and held it was for plaintiff to prove a partnership or t> trust, and which ho considered was not proved. In the agreement re Houmataku tho evidence of the plaintiff was very vague. He proceeded to read the correspondence which had passed between the plaintiff and defendant. The whole of the letters which were part of the plaintiff’s case wero emphatic denials of any allegation of partnership. The evidence amounted to the fact that the plaintiff rode about the country with the defendant. How could that establish a partnership ? The plaintiff when in the box was unable to give an explanation of the alleged partnership. The plaintiff was unable to prove any such coherence on the partnership alleged. Mr W. L. Bees said he failed to apprehend the grounds on which his friend applied for a non-suit. The terms of partnership wore of the most general character. His Honor said that according to the evidence of the plaintiff no partnership existed : It was .only on royalties. The plaintiff in his correspondence with the defendant and also with the solicitors repeatedly referred to the fact that he was entitled to royalty. Mr Rees said that the defendant was entitled to the accounts and share alike. His Honor said that that was not the frame of the plaintiff’s) action.

His Honor said the evidence was very unsatisfactory and inconclusive. Ho could not at this stage non suit the plaintiff. Mr DeLautour said the defence that would be set was a denial of any partnership, also that all accounts were paid with the exception oE Houamataku. The agreement of August 11th was cancelled, and the agreement acquired pertained to another affair. ~, , Edward Lionel DeLautour deposed that some time laßt yoar the plaintiff had a conversation with witness re Waihora D, and plaintiff put the Bale in the handß of witness. The block was ultimately sold to witness. The plaintiff first approached the witness about the sale ot Waihora D, when he wanted witness to pay his rates and taxes. The terms were that witness was to pay plaintiff LIbUU, and give him half the royalty timber which was to be Is per 100, the plaintiff reserving 4 acres 1 rood, which witness ultimately bought at £4O prior to the transfer being drawn up. The estimate ot tho timber for royalty was put down by Mr W. Spenco at 1,057,000 ft of timber. In connection with the purchase of Waihora, plaintiff agreed if witness could nnd tho money that a portion would bo paid, and the rest should remain for a term ot years at 5 per cent. It was agreed that a lease should be drawn up to purchase Hoaumatuku from Pomare HorslalU 10* eluding 15 head of cuttle. The agreement produced was the one entered into. Plaintiff and witness found that Horsfall could not supply the cattle, and another agreement was made in reference to the land in lieu of tho previous one. Plaintiff came in to arrange about the lease, and explained that it was not necessary to have two transfers. Plaintiff agreed that the transfer should bo made out in the name of witness, and also gave witnoss a cheque for £B4, which he waß told to make out in favor of Pomare Horsfall. The cancellation of both agreements wore made on the same date, plaintiff being present. The cheque was drawn on August 12th, and cashed on the 16th. The cancellation of agreements took place a week afterwards. Witness arranged with Morris for his timber on royalty. Tho plaintiff told witness that he had. been arranging with Mr Morris for the timber, but was not successful. Subsequently witness heard that Mr Bell had made arrangements with Mr Morris, but on ascertaining that Bell had not had an agreement in writing, witness agreed to take the timber, offering Mr Bell twelve months’ work to stand out. Plaintiff had nothing to do with the contract with Mr Morris. After having seen Morris witness went up to see Mr Orr, but could not come to any arrangements. Ultimately terms were arranged with Mr Nolan (Mr Orr s solicitor), and plaintiff had nothing to do with it. Outside of the royalty for the timber of Waihora and the timber rights of Hoaumatuku, no arrangements were made with plaintiff. By Mr Bees : Witness had no arrangements with plaintiff after the sale of Waihora D re other timber rights and a sawmilling plant. Plaintiff was a good deal with witness in making arrangements, and plaintiff suggested to witnoss that he should get King’s milling plant. Plaintiff had also made enquiries, and informed witness about the matter by letter, which witness declined owing to tho high price. It was suggested that the timber rights of the Hoaumatuku should be for the proposed mill. The timber rights acquired were to be held between plaintiff and witness, and plaintiff lent witness the money to go into the concern He knew that witness could not take it up, and went in for a part. Witness had interviews with Mr Morris about the timber in the absence of plaintiff. He did not remember telling Mr Morris or Mr Orr that he was dealing on his own account. Witness did not explain that plaintiff had a share in the affair. Witness was going to cut the timber from Morris aDd Orr's place at his own mills. There was no arrangement about cutting at Haumatuku. Plaintiff was a partner with witness in Haumatuku until he refused to acoept the money advancod on behalf of witness. Witness brought the question up before Messrs Morris and Orr, re tho formation of a tramway. Pomare Horsfall, plaintiff, two natives, and witness were present at the cancellation of agreement. Witness knew nothing of the confirmation of plaintiff’s right in the Native Land Court. To His Honor: Plaintiff was jointly interested with witness in the timber as well as in the land in Haumatuku No. 2. They had not yet commenced to cut the timber. Cecil Bartram ‘DeLautour, commission agent, deposed to seeing Pomare Horsfall cancel the two agreements. Ho was not certain if both were conceded on the same day. The plaintiff was present on both occasions. By Mr Bees : Pomare Horsfall, plaintiff, and witness were presont when the documents were cancelled. Witness had a thorough recollection of this, as he settled up an account for tho plaintiff with some Natives who were in prior to that. Witness understood that tho reason of the final agreement being cancelled was to save unnecessary expense and a double transfer. Witnoss was not certain whether

Pomare Horsfall got any money. Mr Nolan said he did not propose to call any more evidence. Ho had one more witness, and it was only to bear out the cancellation. Mr Bees considered that Pomare Horsfall was a most important witness. Mr Nolan stated that the evidence of defendant was direct, and that there was no right on behalf of plaintiff other than Waihora and Houamatuku. As regards Houamatuku, defendant allowed plaintiff to come in as he would not take the money back advanced to defendant. As to 'Waihora, there was a fixed royalty, and all accounts had been rendered. Mr Bees said that the defence was explicit on one point, which made the defence erroneous, if not false. Unless the four witnesses for plaintiff wore committing perjury the timber contracts with Morris and Orr wore completed with DeLautour and Price as partners. His Honor said that the partnership was denied, but the joint interests was not.

Mr Bees said the basis of all partnerships was fbo sharing of profits. His Honor said Mr Bees did not ask the Court to decree a partnership, it was a joint interest. Counsel contended that with regard to the contracts with Morris and Orr the balance of reason and probability, was in favor of the plaintiff. His Hcncr said lie had already expressed his opinion about Waihora I.i. I-, was quite clear that it was purchased for £I6OO and royalty. Theta was also no contest between the parties as regards Haaumatuku No. 2. The real conflict was in the dealing of Morris and Orr’s timber rights. His Honor referred to the legal question raised hy Mr DeLatuur. which was most important. He reserved judgment upon the question of Morris and Orr’s timber rights.