WARDENS' COURT, GREYMOUTH.

Grey River Argus, Volume XII, Issue 1177, 7 May 1872, Page 2

WARDENS' COURT, GREYMOUTH.

Monday, May 6. (Before Mr Warden Revell.) HARRY KENRICK V. THOMAS JOYCE. This was an action to recover L 155, the balance of purchase-money of one-fourth of a twelfth share in the claim known as the Victoria Quartz claim, sold and duly transferred by the plaintiff to the defendant. The plaintiff also claimed L 3 interest. Mr Newton appeared for the plaintiff.

The defendant asked for an.adjournment on the ground that his solicitor, Mr Guinness, was up-country, and Mr Perkins had refused to take up the case. The summons had originally been issued in the District Court, but was withdrawn last week, and it was only on Friday night he received the summons to attend the Warden's Court. Besides, Mr Guinness was his principal witness. Mr Newton objected to the adjournment, and offered to admit all that Mr Guinness was to be called to prove. The Warden refused to adjourn the case for the convenience of a solicitor, who was no doubt engaged more profitably elsewhere.

Mr Newton pointed out that a jury of miners had been summoned, and they were in attendance, and an adjournment would be very inconvenient. The Warden Baid the case could proceed.

The jury haying been called, the following were chosen as assessors : — Joseph KUgour, Henry Simons, William Wilson, and R. Body. Mr Newton opened the case for the plaintiff, and called Harry Kenrick, who said that prior to the 20th March last he held a full share in the Victoria Quartz Mining Company, Inangahua, and placed it in Mr Nancarrow's hands for sale, who afterwards told him he had a purchaser, Mr T. Joyce, at Ll6O. I told him there were no expenses for wages attached to the share, as I had misunderstood the person from whom I had got it, but after 1 bought it, and after I had re-sold it to Joyce, I received an account for wages and had to pay it. 1 produce a certified copy of the transfer to Joyce ; it is dated the 20th of March, and that is the day I signed it. 1 received aLS deposit oh it, that is all. The transfer purports to acknowledge receipt of the full amount of the purohase-money, which I have not received. At the time I said it was not usual for me to give receipts for money before I received it. I was not led +o believe at the time, directly or indirectly, that 1 had to sign any other document than this. I expected to receive the money whenever Joyce signed the transfer. A document was afterwards brought to me by Nancarrow to sign, on behalf of Joyce, but I refused to sign it, as it seemed to me to indemnify him against all future expenses connected with the working of the share, either in the past or in the future, and all future action, liabilities, &c, connected therewith. I abandon the amount claimed for interest, and only ask the actual money due to me. By Mr Joyce : I had no communication with you as to the sale of the share until after the transfer. After the transfer I went to your store with Nancarrow, and taking with us the agreement, as Nancarrow said there was a misunderstanding. I told Nancarrow that there were no expenses attached to the [share ; but subsequently I paid all the expenses for working the share up to the registration of the company, as I thought I was morally bound to do so. The company was registered and gazetted after the transfer, and Mr Joyce's name appears in the Gazette notice for 500 scrip, and mine does not. I never told you that it was a sleeping share. I told you on the 30th March, in Johnston's Hotel, that I was bound by what my agent had done, and would pay the wages up to the registration of the company. I have always been very anxious to have this affair settled, and offerred to submit it to arbitration to any two men you would name. The receipt you produce for the deposit I have never seen before. I see written across it the words "This share is a sleeping interest," but I was not aware of it. I

Re-examined : What Joyce wanted me to do was to pay up all calls after the re-

gistration of the company. He has now got 500 scrip in the company for LICO, and even then he wanted me to pay all the calls. I am willing to give him au additional LIOO if he will give me back the share. ' ' ..

Richard Nancarrow said : I knew that' plaintiff's share was for sale, and told him? I could get Ll6O from Joyce. He told me to sell, which I did, and gave this receipt for the deposit. Th«'se words yrere written across the receipt some time-sub-sequently. ; ; . Why I did it . was that he i came back to me and. said he could h?,ve got a share , cheaper, and that he wanted; something to show that he would have no < wages to pay. I wrote those words forjj the purpose simply of conveying the fact that there were no wages to pay up to the; time of registration. There are no wages^ to pay after registration, the money re- j quired is made up in calls-. Joyce left his'j miner's right at our office, to be senfrfcoj Reefton with the transfer to get it regis-j tered. When I received the certificate of ! registration back I sent it to Joyce ; that was about a week after the transfer; was signed. - The balance of the purchase-' money was then asked for, when Joyce ; wanted an agreement to be signed in-; demnifying him against all calls, expenses, &c, for ever that might be liable on the share. , I pointed out to him the absurdity of what be asked, and he then agreed to arrange matters if all expenses were paid up to registration. He has not abided by that, and hence this action. When I wrote these words across the receipt Joyce said nothing about requiring an agreement to, indemnify him against future costs.

Cross-examined by Mr Joyce,: I remem-; ber you 'asking if I had a share in the; Victoria Company for sale. I- said I had a very advantageous one,, as there .was no liability on it for wages. I said nothing as to " a sleeping shate." ' By the Bench : I distinctly told defendant that the condition upon which I sold; the share was that there was no liability oh it for wages. By plaintiff : You did not see the transfer before ifc was sent to Reefton. I remember you saying something afterwards about getting the transfer cancelled, and you would pay for the expenses incurred. I do not remember then promising to get, you a separate agreement. ■-, . \ James Henderson : I am partner withti the last witness, and remember the sale of the share. Joyce left his miner's right with me at the office to be sent up to Reefton to complete the transfer. Joyce did not tell me he wanted to see the transfer before it was sent up. I have seen the certificate of transfer from Kenrick to Joyce, dated 25th March, 1872. I gave; it to J cyce myself on Thursday, 28th March. By the defendant: You never told me to send your miner's right to Reefton, but I knew what it was left at . the office for. We had frequent conversations, and as I did not transact the business, whenever Nancarrow came back I simply told him to see you concerning the share. I understood that' the share was sold with all expenses being paid up to the time of registration. I don't remember the word "registration" being used. ■ This was the plaintiff's case. For the defence, Mr Joyce said he went to Nancarrow, Henderson, and ; Co.'s store, and asked if they had a share in the Victoria for sale, and they said they had. On tho 20th March I asked^ Mr Nancarrow if he still held the quartershare, which was a sleeping interest, for sale. (Mr Newton objected to this evidence, but was overruled.) He said he would tell me in an hour. I said, " you understand what I am buying V He repl?ed, "Yes; that there are to be no liabilities to be incurred with regard: to working expenses." I said, "How is it possible to have such an interest V and he said he did not know, bub those were his instructions, and that the owner did not pay any himself. I said, "On those conditions I will give you the Ll6O you want. In an hour he told me that it was all right, and I paid him aLS deposit. I got the receipt produced, but the words, "this is a sleeping interest,'' were not then on it. About an hour after I went up to Nancarrow and when I asked him, he wrote the words across it. I then asked who was his principal, and he said Mr Kenrick. I asked how he could hold such a share, and Nancarrow said he bought it under those conditions from Mr Mace. I got out a miner's right; went up the following day to see the transfer, and asked Henderson if it was completed. He said it had gone to Reefton. I asked him if there was anything in it about the sleeping interest and he said, "No." I asked him to request Nancarrow to have that transfer cancelled and a new one made out, and I would pay for the stamps, so that I could see that everything was j made . plain. I saw Nancarrow in his office the following day, and told him what I had said to his partner. He said it was not usual to cancel a transfer, but he would get m« a separate agreement about the sleeping interest. I got Mr: Guinness to draw up the agreement, as I had some doubt about the transfer. He drew it up, I showed it to Nancarrow, who said that Kenrick could not have any objections to sign it. Kenrick and Nancarrow afterwards came to me at the store with this agreement, and we had . a conversation,,, when Kenrick said he would leave it to any three men, or to Mr Newton, to draw but an agreement and he would abide by it. I said I was agreeable to do anything reasonable. Nancarrow then drew out the memorandum produced; I showed it to Mr Guinness, who approved of it. 1 took it to Nancarrow, who showed it to Kenrick,, and he then said he would consult his solicitor. I saw Kenrick afterwards about it, when he said he. would sign anything that was fair; that he had bought it as a sleeping share, but had afterwards been called upon to pay the wages upon it, and as he had instructed Nancarrow to sell it to me as such, he would abide by the consequences. The next thing I heard was a claim for the prompt payment of the balance. I was afterwards told by Mr Nancarrow that he had sold according to his instructions. Cross-examined by Mr Newton : I am not aware of the value of the share now, but I believe I could buy a similar share for less money how. I will not re-trahafor it for. the same amount. I have since been called upon to pay a call on 500 scrip in the same company, amounting to L 6 5s I will pay the call, and accept the scrip when offered to me. lam not aware that L 250 have been paid up on these shares. I expected never to pay a single farthing of working expenses in the claim. I believe Mr Kenriok used the words "sleeping interest" to me. : George Wm, Mosa, sharebroker, said ;

About the 20th March I had quarfcershares in the Victoria Company for sale, from L 135 to Ll4O, and I could still sell the same shares for the same money. A "sleeping interest" is generally for a definite period, during which it is sapposed the purchaser pays no calls or working expenses. On these terms I have sold "sleeping interests" for a year or. six months. : Alfred Edward Drury, a miner tl..have been wdrkihg three sleeping int6re*t»V'and I always considered by the term to be free of all calls up to time of purchase, and free of all expenses in the working of the claim af terwards. •:; '-^ Joseph Walsh, a miner) working at the Inangahua reefs, said he- had always understood a " sleeping interest" to be. one which was not liable for calls or any other expenses; -• .' - r Richard Shiel, a miner, said his definition of "a sleeping interest" was one which was not liable for any calls or other expenses, if no definite period Was mentioned in the agreement. A "sleeping interest" could be forever. •. "■■■', Mr Newton addressed the jury,'pointing out the frivolous defence which had been set up. It was no question 'in this case- what 'was the interpretation of " a sleeping share." All they had to consider was that the defendant not only held on to the share and at the same time refused to pay the balance of the purchase money. He certainly could not retain both; and his course very clearly was to Have paid the money or refused to accept the share, and to have sued the plaintiff for damages. The .Warden uaid the case had. resolved itself to a single pomt — whether there was' an agreement for the sale of the share, whether part of the purchase-money had been paid, whether the defendant was now actually in possession of the share, and refused to pay the balance of the pur-chase-money. As to the. law of the case, he agreed with what Mr Newton had laid down. • ; The jury, withbut.leaving the box, gave a verdict for the plaintiff, with costs.