HONOURING AN ORDER.

Stratford Evening Post, Volume XXXIV, Issue 87, 7 December 1912, Page 5

HONOURING AN ORDER.

HARKNESS AND GRIMMER V. A

LOOK AND SONS

RESERVED DECISION

In the case J. G. and G. P. Harkuess (Mr Spence), trading as Jlansness and Grimmer v. Abraham Look and Solomon Look (Air Cookes tor noth defendants), trading as A. Look and Sons,. Mr w . G. ivenncK, S.M., gave reserved judgment yesterday morning as follows; •Tne plaintiffs claim from the defendants me sum of JLL ids lUd, tne price oi goods sold and delivered subsequent to tne 18tli March, 1909, by tne plaintiff's, at tne request in writing of tne defendants, to one Frank UTaughlin, of Waipuku, on tne written promise of the defendants dated 18th Marcn, 1909, to be responsible for the due payment of tlie price oi tne goods. Tliere is an amended claim filed in wfficii plaintiff's claim tile said sum of £7 13s fOd for goods sold and delivered by tlie plaintiffs, at tffe request of defendants to one Frank OTaugJilin. The amount claimed as due is not disputed, but belli defendants deny liability to pay same. The following is a copy of the written promise of tffe defendants: ‘lßth March, 1909. To storekeeper, Waipuku. Please supply bearer, Air O’Laughlin, with stores as required by him, and we win stand his credit. Hoping yon will favour ns. Air O'Lauglilin is starting on the permanent railway, Waipuku, and rs well known to us. A. Cook and Sons, Stratford.’ It is admitted that tffe signature ‘A. Cook and Sons’ is that oi Solomon Cook, a member ol the linn. Plaintiffs’ books show that the goods are charged up to ‘A. Cook and Sons (O’Laughlin).’ it is proved that Waipuku is tffe name of a railway station, and that tliere ate no shops or houses there, the station being 11 miles from Midffirst. Tne plaintiffs, who are storekeepers at M.dnirst, supply goods at Waipuku and the district. It is proved that O’Laughlin presented tne document from A. Cook and Sons to plaintiffs at Midhurst, and received goods from time to time, and he called from time to time'and paid money on account, linaliv having a balance of £7 Jos (id unpaid, and which he has failed to pay. Plantiff's say when they re ceived tlie said document, they did not write to or see A. Cook and Sons. Tne defendant, Abraham Cook, says tie knew nothing of the document his son Solomon had signed until plaintiffs’ solicitors demanded payment, and that he did not give his son authority to s gn such document. He further says ffis son was never a partner in Lie firm hut an agent to do his writing, lie being unable to write. The defendants admit they have held themselves out to be partners in the tailoring business to the public. Solomon Cook admits that he did not tell his father he had given the above-mentioned document to O’Laughlin. Firstly, it is contended that Abraham Cook is not liable for his son’s act, on the ground that it was not a transaction in the ordinary course of business. The defendants, although now proved not to be in partnership, having held themselves out to be so to the public, would be liable for each other’s acts if done in tlie ordinary course of business, tffe law on this question being set out in section 10 of the Partnerships Act, 1908, as follows: ‘Where one partnei pledges the credit of • the• firm for a purpose apparently not connected with the firm’s ordinary course of business, the firm is not bound unless he is in fact specially authorised by the partners; but this does not effect any personal liability incurred by an individual partner,’ It is proved Abraham Cook did not give special authority to his son to sign the firm’s name to the document, and he did not know of its existence. It could not be seriously contended that a promise to pay or guarantee a person’s debts is in the ordinary course of a tailoring business. On these grounds Abraham Cook is not liable for his son’s act. 1 think the plaintiffs made a fnistake in not seeing the members of the firm, with a view of confirming the document. For the defence it is contended the document is intended to be a guarantee, but it is bad as such, as it docs not state the name of the party supplying the goods (the plaintiffs). It is claimed for this reason Solomon Cook, who actually signed the document, is also not liable thereunder. If it is a guarantee this contention is correct, but although the document does not g : ve a name it is addressed to ‘The Storekeeper, 'Waipuku,’ and as it is proved the plaintiffs are only storekeepers supplying goods there, the description would probably be held sufficient. The question whether an undertaking to he liable for another amounts to a guarantee within the meaning of the Statute of Frauds, or is simply an indemnity is often difficult to determine. ... In my opinion the document is not a guarantee, nor was it intended as such. I think it can be read only as a request or an order to plaintiffs to supply goods to O’Laughlin and charge it to defendants, the words therein ‘we will stand his credit,’ ‘or charge to us,’ 1 take to mean ‘we will pay,’ or ‘charge to us.’ The evidence proves plaintiffs have so read it, for they charged A. Cook and Sons with the goods in their books, and supplied the goods to O’Lauglilin. As an order, Solomon Cook, who signed the name ‘A. Cook and Sons,” is liable; -Abraham Cook cannot be liable as he did not authorise his son to sign, the transaction not being in the ordinary course of a tailoring business. I have been asked to deal with the ease under the equity and good conscience clause in the Magistrate’s Court Act, and so make Abraham Cook also liable. I do not feel justified in dome this in view of the fact of plaintiffs never in any way confirming the order. Had they done so Abraham Cook would have known what his son had done. I give judgment against Solomon Cook for the amount claimed and costs. Judgment is for the defendant Abraham Cook, lint T do not allow him any costs, he having held himself out to he in partnersh’p with his son. when there was no partnership at all and which no doubt induced plaintiff' to act on the order. Costs to plain tiffs as against Solomon Cook, Court costs 12s and solicitor £1 Gs, total £1 18s.”