CIVIL SESSIONS. WEDNESDAY, JULY 9. [Before His Honor Mr Justice Gillies].

Te Aroha News, Volume II, Issue 58, 12 July 1884, Page 6

CIVIL SESSIONS. WEDNESDAY, JULY 9. [Before His Honor Mr Justice Gillies].

K. M. Fkipp v. Thomas Uvton". — Claim, £14, value of a cheque. — Mr Edmund Mahony, instructed by Mr J. A Beale, appeared for the plaintiff, and Mr Theo. Cooper for the defendant. — lloberb Mackay Fiipp having been sworn, stated under examination by Mr Cooper that he was an architect, and was suing under a cheque which ho held from the defendant. In April last, at the direction of Mr Michael White, he invited tenders for the erection of two houses in Parnell. Amongst the tenders sent in was one from the defendant, accompanied by a cheque for £10 sent by way of deposit. On the 7th of April defendant was verbally informed that his tender had been accepted, and five days later notice of the acceptance was given. In the meantime, the defendant told him that through some mistake in his addition he had tendered too low, and that lie would require an advance of £14 upon the amount ho had named. Witness replied that such a thing was out of all precedent, and that he could not possibly allow it without first consulting Mr Whito. The defendant then requested back his cheque, and on this being refused ho stopped payment at the Bank. The cheque had been given to witness by Mr White in satisfaction of hi3 claim for preparation of plans and specifications. He did not learn until yesterday that Mr White was an undischarged bankrupt. — Thomas Upton denied that he ever received any verbal ins timation of the acceptance of his tender. The tenders were opened on the 7th of April, in Mr Fripp's office, and witness's tender was found to be the low est. He took the plans home with him, and on going over his estimate he found that through mistaking a 7 for a 5, he had tendered £20 too low in each case. He thereforo wont back to Mr Fripp, explained the error, and told him that he would require an advance of £14 upon the amount of his tender. Mr Fripp said that Mr White would not be likely to agree to this, as he was a hard old nail to deal with, Asheqould not get his tendfcr amended, orthe deposit returned, he stopped payment of the cheque. — Michael VVhite, etoreman, deposed that in April last he instructed Mr Fripp to invite tenders for

building two housos. It was true that at that time he was in tho Bankruptcy Court. He was, howevor, only acting as agent for anothor party in having tenders called. That other party was his wife, and the houses woro to have been built with borrowocl money. — This being the case, Mr Cooper submitted that the defendant had a perfect right to withdraw his tender at any time before tho written acceptance was delivered. — Mr Mahony having replied, His Honor held that the defendant must win tho action both on the general ground that there could bo no contract until both parties were formally bound, and on the special ground that notice of the acceptance should have been given in writing and tho contract signed by both parties, llo did not see, indeed, why tho case was brought into that Court at all, and thoreforo allowed costs on the lower scale to the defendant, said costs to be taxed. Frank G. Clark v. August Vollbracht. —Claim, £132 Sd, for broach of contract.— Mr J. M. Speed for the plaintiff, Mr C. E. Button for tho defondant. — Frank G. Clark, the plaintiff, deposed that in September last the defendant, having just arrived from Wellington, and being busied in floating a Tobacco Manufacturing Company, saw witness and engaged him as tobacco-grower. His duties were to be the distribution of tobacco seed to farmers, tho giving of information to them, and the supervising of their operations. He was to receive remuneration at the rate of £5 per week, besides his travelling expenses. He was formally engaged on the 22nd September. On the 28th of November the promoters of the New Zealand Tobacco Company were to havo a a meeting, and defendant, who was to be manager, asked witness to send in an application to him for engagement and consent to accept L4 per wtek until the Company was in propor [ u orking order, lie did so. During all this time he was working for defendant. He furnished him with seeds, wrote him a l pamphlet on tobacco culture and performed other sei vices, and the only return he had received was payment of his travelling expenses. — Cross-examined by Mr Button : Ho considered himself defendant's and not tho Company's servants, and yet he hud first of all sent in hi3 claim to the Company. That, however, was at defendant's request, in order to show the Company what services he had performed for him. At defendant'srequest, also, he had sent in repeated applications tc the Company for employment as manager of the Tobacco Growing Department at a sa'ary first of L300 per annum and then of LH50 per annum, exclusive in each case oi travelling expense^. But for defendant's engagement with him he could not have obtained employment with the Auckland Tobacco Company. The receipt produced, dated 7th December, was given by him, but he could not recollect whether or not the words " in part payment of wages " were added by him after the receipt had been signed. It did not much matter in his opinion. [His Honor reminded the witness that it mattered so much that it came very near to forgery.] He did not think that he could have been fool enough to do such a thing. The words might have been added after the receipt was signed but before it was handed over.— Various other receipts for sums paid from time to time in respect of services rendered were producedandacknow lodged. They extended in date to the middle of April. An acknowledgment for a loan from defendant was also produced.— August Vollbracht, the defendant, denied positively that he had made any agreement to engage the plaintiff. The plaintiff applied to him for work, and from time to time he gave him something to do, and in every case paid him for it. Plaintiff applied for an appointment under the Company, but his application was refused. Witness employed him to visit various farms and give instruction, and after each such visit he settled up with him, paying for his services rendered as well as his travelling expenses. The pamphlet was written at witness's own dictation. — The witness was cross examined for some time, when His Honor interviewed by saying that it was no use wasting the time of the Court longer. The plaintiff had failed to provchis case. * Judgment was then 'given for the defendant, with costs, to be assessed on the lower scale. Ed wi\ Latimer Clark v. KiCE'-ChvKs Clark, jun.— -This was an action for the" partnership accounts, and an order for any balance that might remain. — Mr C. E. Button appeared for the plaintiff, and Mr Thco. Cooper for the defendant. The former gentleman in opening, explained that the action was originally one between a father and two sons engaged in the brick and tile manufactures. The plaintiff A\as rather weak of intellect and had consequently been incarcerated in the Asylum for*[a time, but ho had skill suflicicnt to make an invention for which a patent had been taken out. He had not been fairly treated by his father and brother, and consequently ho had asked for a dissolution of the paitnership After some conference between the learned gentlemen, it was agreed to accept a decree empowering tho Registrar to take accounts between the parties, and to examine witnesses on oath, leave being given to either party to apply afterwards, and the question of costs being reserved. S \muel Attewkll v. Wm. Fawkes : action for dissolution of partnership. — Mr E. Mahoncy for plaintiff. — Mr Theo. Cooper for defendant. — The latter gentleman intimated that under the Act of 1S66 it had been agreed to refer the matters in dispute to tho arbitrament of Mr Holland, builder, who would report to the Court. He therefore asked that the case should be adjourned till the next sittings of the Court. — Granted. Tiros. J. Franks v. John Adams : Claim, £150, money in hand of defendant. — This case was struck out on account of the bankruptcy of defendant.