A DISPUTED DEBT

Manawatu Herald, Volume XLIV, Issue 2422, 29 April 1922, Page 2

A DISPUTED DEBT

A 1 AX AW A’J’U HERALD CO. v G. S. WHIBLEY.

At tho local S.M. Cour yesterday, before Mr Watson, S.M., The Manawatu Herahl Co., Ltd. (Mr Bergin) proceeded against G. S. Wlubley (Mr Cooper) for recovery of £3l 2s 6d, goods supplied. Mr Bergin, in outlining the ease, said up to April, 1918, J. K. Ilornhlow, E. I). Whibley, and Geo. Whibley, the defendant, were partners in the llaxmilling business. Goods were supplied by the plajntiff company to the flaxmilling firm. In April, 15)10, the flaxmilling firm dissolved partnership, and it was agroed that the defendant should pay ali debts then owing. The (defendant carried on the business on his own account, and further goods were supplied fo him by the plaintiff 'company. -All the items of the claim are entered in the plaintiff's books by Mr F. Whibley. K. Hornblow, managing director for the plaintiff company, in evidence said he was in partnership with, Whibley until April, 1918, when the partnership was dissolved. Before dissolution, goods were supplied by the plaintiff to the partnership. On dissolution it was agreed that the defendant should I>iiv Jill debts owing by the partnership (agreement produced). For lion of the amount now claimed was then owing. George Whibley carried on the business' on his own account, and further goods were supplied to him. All items' are entered in plaintiff's books by Frank Whib-Ic-y. The plaintiff Company looked lo George Whibley for payment. To Mr Cooper: Until about twelve months ago Mr Frank Whibley was a shareholder in the plaintiff company. The flaxmilling partnership was the defendant, his brother Frank Whibley, and myself. In April, 15)IS, on dissolution, I received a certain sum. in cash and thy balance in p./ns. signed by George Whibley. I did not know that Frank Whibley went back into partnership with his brother in 1918. I never subsequently knew that he went back into partnership with his brother. Frank Whibley went out of the plaintiff company in March, 1921. The amount now claimed was then owing to the plaintiff. When settling with Frank Whibley when he went out of the Herald Company, £35 was deducted, being for a p./n. due by George Whibley in respect of my interest in the-original flaxmilliiig partnership. George Whibley told or wrote, me that he had arranged with Frank Whibley to pay this p./n. Frank Whibley never told me that the amount now claimed was to be treated ns settltyK The Herald accounts were not gone through at the time of Frank WhibleyV withdrawal from the plaintiff company and it was not then understood that this account was wiped out. ...I took no fresh p./ns. in October. 1918 or .thereabouts.

To Mr Bergin : 1 suggested flip de-

duction of ilie £35 dm; on George Whibley’s j»./n.. and' Frank Whibley agreed. Frank Wliibley kept the books until lie left p'.iinlitl company. 1 have seen no entry in the books squaring any part of the account now sued for. Most of the business in the llaxmiliing partnership wits done with Frank Whibley. I did not write for settlement of tiu> plaintiff company's account until November, 3921. T cannot deny that George Whibley never received a detailed account until these proceedings were taken. The hooks and accounts were under the control of; Frank Whibley until he left the plaint ill company, and it wits his duty to render accounts.

Mr Cooper in outlining the defence admitted that the goods were supplied to and received and used by the llaxmiliing business; which was carried on by Whibley Bros., but were not ordered by George Whibley. On the dissolution of the llaxmiliing partnership in April, 1 01 S, a sum of £5(10 was paid in cash by the defendant and (lie balance due in Mr IJornblow and Frank Whibley was given in p./ns. In October, 1918, Frank W hibley went to Te Aruba and again joined thedefendant in partnership and fresh !'• ns. were given to Mr Hofnblow for rite amount due to him. On dissolution in April part- of the amount claimed, £lO Is (id; was wiped out. In March, 1921, Frank Whibley went out of the plaintiff company and on settlement the balance of the amount now claimed was squared. The first account was not sent, out by the plaintiff company until after Frank W hiblev went out- of the business.

Frank Daniel Whibley in evidepee said he was in partnership with the defendant, George, Whibley, and Mr •J K. Hornblow on third shares. Until twelve months ago lie was a shareholder in the Herald Company. After April, 1918, George Whibley carried on the flaxmilling business at Te A rob a and all moneys and p./ns. were payable to me. I kept the p./ns. for Mr Hornblow and any«elf. In October, 1918, T- again went into partnership with my brother in half shares and if the debt is owing, I owe half. I went to Te Aroint in 1918 and made ’arrangements in connection with the fresh partnership with my brother and myself. On my return, I told Mr Hornblow j of all business done with mv brother. I told Mr Hornblow that it was a condition of the dissolution in April, 3918, that part of Ihe amount now sued for, about £lO Is fid, was squared off. If that were not so, there would have been no trouble for my brother to pay it. I arranged with my brother at Te Arolia for wiping bff this amount. M lien I lett- the plainiff company, tlie amount then owing was taken into account. I left the plaintiff eom-

pany iti March, 1921. At that time, 1 made it quite clear that this debt was squared. ToOIX Bergin: There was . about £lO Is (id owing to the plaintilrs£jnpaiiy in April, 1918. This was squared on the first dissolution. I kept the books for the plaintiff company until I left in March, 1921. It must have been an oversight on my part that I did not square off the account. The books were balanced as the company must produce a balance-sheet yearly. When balancing the books 1 never squared off any part of this account. The whole account was squared when I left the plaintiff .company. After I settled with the Company I continued for about four weeks with the books, explaining same 'to the now book-keeper, Mr Hornblow’s son. I did not then square Whibley Bros.’s account, nor did I tell the new book-keeper to do so. I thought Mr Hornblow would see to that. The fresh p/ns. given to Mr Hornblow in October, 1918, were payable by George A hibley. Mr Hornblow did tell me that the plaintiff was bringing this action against Geoj-ge Wkibley. I did notthen tell him that the account was squared. There were no fresh securities prepared for the merchants when I rejoined my brother in partnership. I signed letters merchants’ solicitors, who said in. fresh securities were then necessary. Plaintiff's account was not mentioned in your presence when I settled with the Herald Company. It was mentioned the day before to Mr Hornblow, when the amount of my withdrawal from the plaintiff Company was agreed on. The defendant, George Whibley, whose evidence was. taken at Mercer, said he did not owe this account, and that he never ordered the goods. He 'detailed the Jinxmilling partnership as outlined by Frank* Whibley. In April, 1918, he dissolved partnership with Frank Whibley. Tie took over the business, and all .accounts owing, were to be paid by him. Tn September or October, 1918, my brother fe-entered the business, and fresh> p/ns. were given to Mr Hqrnblow. The goods sued for were sent by my brother, Frank Whibley, and were received by Whibley Bros. I .did not receive any detailed account from plaintiff. I received account rendered for the amount claimed, dated 30th October, 1921. The plaintiff wrote requesting \ payment on November sth, 1921. Plaintiff drew on me through the Bank. The year before lasi my brother, F. D. Whibley, left the Hevtild Company, and wrote me that the account was settled. Had the firm, Whibley Bros., been sued, I wojtdd not have repudiated my liability-aid a partner if-my brother had not paid the account. Mr Hornblow was acquainted with all the arrangements between mv brother and mvself.

The Magistrate said there was ' remarkable conflict of evidence, and it seemed to him to hoarder on perjury. However, he considered that a the onus was ton the* plaintiff to prove its case, which lie did not -V consider had been done, and he would give judgment for defendant with costs £4 12s.