SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 5013, 18 April 1877, Page 3

SUPREME COURT.

CIVIL SITTINGS. Tuesday, April 17. (Before his Honor Judge Richmond.) IRVINE V. BROOKE. This case was called on at 10 o’clock. Mr. Barton appeared for the plaintiff; Mr. Travers, with Mr. Moorhouse, for the defendant. The following gentlemen wore sworn as a special jury:—Thomas James Lamb, William Henry Meek, John Sawyers, F. O. Kreeft, Benjamin Levy, J. Billings, Henry Wilcox, O. O. Graham, F. Mason, T. W. Young, E. W. Mills, and James Holt. Mr. Mason was elected foreman. This was an action to recover £SOOO damages for broach of agreement on the part of the defendant to enter into partnership with plaintiff as arranged between them. C. D. Irvine deposed that he was a civil engineer, architect, and surveyor. Had a degree from Trinity College, Dublin. He had had a farm at Karori, and was living there working out a new patent when he became acquainted with Mr. Brooke. He came early one morning at about six o’clock. It was on the 24th of August. Mr. Brooke told witness that he desired to go into business with him, having heard that he was a professional man. He came every morning to witness’s house for about three weeks. He said he had plenty of money, and thought he would like to settle in Wellington, having invested there £BOOO in mortgages. Witness could not exactly recollect which of them it was that first suggested the partnership, but on the fourth or fifth day defendant specifically agreed to enter into partnership in a commission agency business, combined with that of engineers and surveyors, and instructed witness to secure offices. The understanding was that the profits were to be divided At his instigation witness took a house at the Hutt; that was on the 26th September.

Mr. Travers objected to that question, as it was not shown that the arrangement had any connection with tho partnership, which the plaintiff alleged took place on the 27th of August. Witness stated that the arrangement he spoke of was part of the partnership agreement.

Mr. Barton stated that he should ask to be allowed to amend the declaration. Examination continued : Brooke w T as to supply cash, witness’s professional ability to be recognised as an equivalent. Brooke, a day or two before his marriage, suggested that a certain house they purposed taking at the Hutt should be so altered as to be capable of holding the two families ; witness in the first place to go to the Hutt and live there, Brooke guaranteeing the rent and the cost of any alterations to the house. Mcßean was the landlord. Witness left the farm at Karori, which he supposed Brooke had purchased. Business premises in town were obtained in Stevenson and Stuart’s building, it being understood that witness was to carry on business and establish a connection in the absence of Brooke, who was going to Tasmania for the purpose of getting married. This took place on the 16th September, and the document produced was the deed of lease for three years between Stevenson and; Stuart and Brooke. Witness remarked to Brooke at the time that the rooms would require to be furnished, and the latter promised to be responsible. Witness was under the impression that the alterations and furnishing cost about £3O, but could not swear to the precise amount; could, however, swear that it was not below £2O. Witness carried on business there some time, and Brooke also used the offices. Brook some time after expressed his intention of leaving Hew Zealand, and when asked what he intended to do about the partnership he gave no decided answer, and had neglected to pay the expenses incurred in connection with the business. ‘During October, Brooke said he should probably start for Tasmania on the 3rd or 4th November. Witness paid for the alterations to the office and the furniture. He could not pay the rent, and was therefore shut out, and the appliances in connection with his profession were kept by the landlord. Did a good deal of work for defendant, and had to summons him, recovering part payment by compromise. Witness lost about £9O over the Karori farm transaction. Had to pay rent for the house at the Hutt.

’ Mr. Travers pointed out that the evidence was becoming irrelevant, inasmuch as it had nothing to do with the computation of damages for breach of partnership agreement. At this point some time was occupied in discussing the law of damages as applied to the present case, Mr. Barton contending that the Karori farm transaction was an element of damage. His Honor stated it to be his opinion, so far as it, appeared at present, that Mr. Barton’s view of the case was erroneous, but did not rule on the matter, as it would in all probability be his duty to say something on the subject later on.

The examination of the witness was then continued with the view of showing the amount of loss sustained by plaintiff in consequence of his connection with Mr. Brooke. Witness stated that in addition to what ho had paid he was liable for £l5O. He had suffered professionally in consequence of ’Mr. Brooke failing to carry out the agreement.

Cross-examined by Mr. Travers : The entry in my diary represents my idea of the transactions between Brooke and myself ; that is much to the same effect as what I have stated in my examination in chief. There is no entry of the date of our entering into partnership. I do, not recollect that either of us mentioned anything about the partnership in the hearing of either Messrs. Stevenson or Stuart. Prior to suing Mr. Brooke I sent him an account on the Ist November, claiming £65 10s. 6d., and when I sent in my ultimate claim I sued for £72 17s. fid., after giving credit for £ls. I think it was next day. It was either the Ist or the 2nd that I gave Messrs. Barton and Fitzherbert instructions to sue on my behalf. There is an item of seven guineas in the summons for work which was completed on the 2nd, the action coming before the Court on the 3rd. I believed at that time that Mr. Brooke was going away for good, but I did not give him any direct notice through a solicitor of any proceedings to be taken in connection with the partnership transactions. I assumed that he must have been aware of the fact that I contemplated taking such a course. During the interval between August and November I received £65 from Mr. Brooke. I do not know that any notice of intention to commence these proceedings was served on Mr. Brooke. Mr. Travers said they had no notice from either the plaintiff or his solicitors. Mr. Barton read the correspondence that had taken place between the respective offices, and said he could prove that Messrs. Moorhouse and Stafford, solicitors for defendant, were perfectly aware of the intention to commence proceedings. There was, however, nothing in the correspondence to show direct notice, it having for the most reference simply to the B.M. Court case. Examination continued ; The terms of the partnership agreement were that Brooke was to provide the capital and give, his time, whilst I gave my skill as an engineer, architect, and surveyor. • To start the business a sum of £2OO or'£3oo would be sufficient. There was nothing, said as to who should receive the profits during the interval between the 27th August and Mr. Brooke’s return. I did not treat the work I did for Mr. Brooke as part of the firm’s business. I kept a private account of them. I used the offices of the firm and its appliances to assist mo in performing that work, I did ask Mr. Cayroll whether

he was open to take a partner, and from the manner in which I put that question he might have inferred that I was the person who desired a partner. This was on the 15th of September. I also applied to Murray, Common, and Co., as to whether they had an opening for a partner. It was not exactly with the view of taking part in the firm myself. Mr. Brooke required the information. I also applied to Mr. Benjamin Smith. The object was, on the suggestion of Brooke, that I should join some old-established firm, he supplying the money. Another object was that Mr. Brooke might obtain a knowledge of the value of these partnerships. The farm at ICarori consisted of fifteen acres. I was only beginning, and my stock consisted of one cow. I had paid £3O on account. Mr. Brooke gave me £ls, and gave me orders on Mr. Stafford and Mr. Pilcher for two other sums of money. During the interval between the alleged breach and the issue of the writ, I did some surveying for Mr. George Hunter, for which I received £6 or £7. I could not say what I made in the gross. I did some work for Mi'. Barton, and also some work for Mr. Toxward ; for the latter I received £24. This, with what I received from Mr. Brooke, made up a total of £95. I may have earned £4O. Mr. Toxward’s employment, I believe, came to me through Mr. Barton, who was solicitor for Mr. Toxward in his suit against Mr. Hastwell. I had no connection which

would give me employment. I hud never worked one up. It was after I had taken the rooms at Stevenson and Stuart’s that I employed Mr. McCall. I took him to the rooms on September 20th. I did not then tell him that I had got hold of Mr. Brooke, a rich man, and was going to prepare plans for a hotel in Tasmania. I may have said I was going to prepare plans for a hotel. I did not say I expected great advantage from my rich client ; I did not say I hoped to get into partnership with him, but I think I told McCall of the proposed partnership. I made an engagement with McCall to share profits with him on the condition Mr. Brooke approved of it. I applied to Mr. Brooke for approval. McCall entered upon his work with me on 22ud September. The terms were that he was to occupy my rooms and I promised to try and get him in on the condition that he should get a percentage on the architectural work. I did not tell McCall that I had no money to pay him a salary, but Mr. Brooke was going to find the money ; but I said something to that effect. I always spoke of Mr. Brooke as the senior member of the firm. I spoke to Mr. McCall about the proceedings I was taking to recover £7O. I asked McCall whether ho had heard defendant expressing himself as my partner. He said he had not heard Mr. Brooke positively admit it, but he had judged from incidental expressions that Mr. Brooke did admit it. Mr. McCall is not subpoenaed as a witness by me. When defendant paid me the £SO McCall made a claim against me, upon which he was defeated in the Resident Magistrate’s Court. I know Mr. Samuel, When Mr. Brooke introduced me to him, lie did not say, “I always consult Mr. Samuel on my business affairs, and I h ive consulted him upon your project of a partnership, and lie says it is out of the question.” Neither did Mr. Samuel say, “ Yes, Mr. Irvine, Mr. Brooke knows nothing of business, and I cannot see how a partnership would benefit you both.” I don’t recollect Samuel saying subsequently, “So you have been trying to induce Carroll to enter into a partnership.” On thinking further, I remember there was such a conversation. I did not reply, “ I have been round to several land agents." Re-examined: Brooke said he was a businessman, and had made £14,000 or £15,000 by business iu India.

Alfred' Lindsay, bootmaker, residing on Lambton-quay, deposed ; Plaintiff and defendant called upon me about the 15th September last, and Mr. Brooke asked me if my place next door was to let. I said “ Yes,” and showed them over the premises. Mr, Brooke asked Mr. Irvine if the place would suit him. Irvine said the front of the place was very well, but objected to the back. Mr. Brooke said the back offices would do for him. Mr. Brooke said they were going to open as land and estate agents and surveyors. I understood both gentlemen were going into business, Mr. Brooke said plaintiff was a man of considerable ability, and ho would look after the surveying, while he (Mr. Brooke) would look after the money part of the business. They then left and called a second time, when similar conversation occurred. They promised to come again. I understood they were going into business as land agents, and so forth, in partnership. Cross-examined; I understood they were going into business together. They were both strangers to me. Alfred Henry McLean deposed : I remember going to the house of Mr. Book at the request of Mr. Irvine on sth October. I saw Mr. and Mrs. Brooke, and Mr. and Mrs. Irvine, and I think another lady. I had a lease of premises at the Hutt, which Mr. Irvine had leased, and went there respecting some business about that. During my visit, Mr. Brooke and I went into the garden. He told mo ho had known Mr. Irvine a considerable time, and they had taken oifices somewhere in the town, and were going into business as brokers or something of that sort; that was Mr. Brooke and Mr. Irvine. Mr. Brooke guaranteed me the rent for Mr. Irvine. He said the partnership would v-quire a large amount of money, but he had th rough confidence in Mr, Irvine, and should embark in the enterprise. This was plaintiff's case.

After some discussion between the counsel as to whether the case should be proceeded with further at that sitting, His Honor inquired of the jury what they thought of the matter. The foreman said the jury preferred to go on as they had almost made up their minds.

Some discussion arose on this. His Honor said he was in doubt as to whether he should under the circumstances direct the jury to find first whether they considered there was evidence of a completed agreement for partnership. He thought, however, that they had better suspend their judgment until they had heard the whole of the evidence.

Mr. Barton applied that his Honor should grant a nonsuit. Certainly he should not attempt to cross-examine witnesses or address the jury. His Honor doubted his power to take that course, or to take a verdict at that stage, and said he must let the case go on.

Mr. Travers then said he should call no evidence, but should merely address the jury on the evidence for plaintiff, [which he then proceeded to do. Mr. Barton then submitted that the jury must find for the plaintiff, as the evidence for the plaintiff had not been contradicted. He argued that it must be clear that a partnership was entered into, unless the jury disbelieved the plaintiff, and they had no right to do so, because his evidence had not been contradicted. He asked his Honor to direct the jury thus.

His Honor declined to follow such a course, and put it to the jury was there evidence of a completed agreement. Mr. Barton asked if his Honor would reserve leave to him to apply to enter judgment for the plaintiff if he could show him that his direction was wrong. His Honor declined to do so, and said if there was any fault in his direction there must be a new trial, Mr. Barton urged his point, till

His Honor said : Mr. Barton, you are a little too pertinacious. It is usual to accept a Judge's ruling on such a point as this. I cannot do as you wish. The jury then retired for a couple of minutes, and then returned into court with a verdict for defendant. —The Court then rose.