THE LAW'S NOT IN IT!

Taranaki Daily News, Volume LIV, Issue 40, 9 August 1911, Page 3

THE LAW'S NOT IN IT!

VALUER'S CHARGES DISALLOWED

The Magistrate's Court was occupied I during tlio greater part of yesterday afternoon by a case in which Hal Goodacre sued the Deputy Official Assignee in the estate of Wood and Zemba, bootmakers and importers, for £24 6s, in payment for his services in valuing the stock in the estate upon the instructions of the defendant. Mr. G. Grey appeared for plaintiff and Mr. J. 11. Quilliam for the defendant. Hal Goodacre, the plaintiff, a boot manufacturer in Mew Plymouth and a valuer, having been in "business in New Plymouth for about 23 years, said that during that time lie hud made many valuations of stocks, chiellv in his own line of business. The Usual commission' charged was 5 per cent, on the first £IOD, and 2Vis per cent, on the remainder. unless there were some special arrangement. On or about April 20' lie was employed by Mr. Medley, assign'ee , in the estate of Wood and Zemba, to ] make a valuation of the stock on behalf j of the creditors. This took place at the | conclusion of a meeting of creditors. He j had valued the stock some three or four ■ weeks earlier, but it had been altered in the meantime by purchasos and sales of stock. The D.O.A. had not received a memorandum of his charge on that occasion, but had in his possession before that time a copy of his charges for a valuation in the same estate made at Hawera in the previous December. In; the valuation for the D.O.A. he had four people employed—himself and three others—in the actual stocktaking, and a typiste was engaged in getting out copies of stock—sheets for the D.0.A., to send round to the towns where the | business and stock were being advertised I for sale. |

Cross-examined: He charged £lB 7s for the valuation of Wood and Zemba's stock at Hawera on December 13, 1910, the value being £034, and the rate of commission fixed by arrangement. On A-nil 15 he made a valuation' of the >'ock of YlV,id and Zeniba in their shop in Dovnn st v c-el New Plymouth. This was on b''b:i! F of the creditors. He charged £22 13s Od. Mr. Quilliam: The valuation then made was in the possession of the Deputy Official Assignee?—l don't know.

Mr. Quilliam said that that valuation was for Wood and Zemba, and was paid for by them.

Mr. Goodacre: Tt has not been paid for yet by anyone. | Counsel: Your modest claim against tl is estate for valuations alone was £!>.> Gs Od? Is that so? I Mr. Goodacre: For three valuations. The Bench: Three valuations in four months! ,

Mr. Quilliam: And two of them with- •• weeks of each other. Your total against this estate, Mr. Goodacre, in these valuations is £9l lis Bd.

acre, in these valuations is £9l lis Bd. | Cross-examination continued: The amount charged in the first instance was not the same as the amount he was suing for. He had valued the book debts to some extent, and charged for it, but when Mr. Medley, complained that this was not authorised he struck ( it out. There were engaged on the; stock-taking himself, his son, his clerk, I and Zemba I Mr. Quilliam: One of the bankrupts? Plaintiff: Yes. , Mr. Quilliam: Now I want to know, Mr. Goodacre, how long it took you to j do this work for which von are charging | £24 6s? ' J Witness: It took us three or four; days. We started on the day he re- j ceived his instructions. Personally, he! was on it for parts of three or four days, I and at night. |

Mr. Quilliam: How comes it that you write on the 28th to the D.0.A., forwarding your account? Mr. Goodacre: Tlierp were the stocksheets to do after that.

Counsel: Pardon rac. You say in your letter, "Under separate cover I am forwarding the stock-sheets." Witness: Anyhow, the 23th, 26th, 27th and 28th are usually four days.

Mr. Quilliam: Yes. But the 25th was the date of the meeting. Mr. Goodacre: I got instructions from Mr. Medley at about three o'clock, and went straight to the shop. Counsel: The meeting wasn't over till nearly 5 o'clock. Witness: Oh, no. It was over early. Mr. Quilliam: It didn't start till 2.30 p.m., and it was fairly long and a lively meeting, you remember.

Witness detailed the methods employed in the work. Counsel: If Zemba says the actual time taken was seven hours, -what will you say to that? Witness: lie wouldn't he far out a* far as the time taken in the actual stocktaking was concerned. Mr. Quilliam: Then apart from those seven hours' work, you say that the making of this list, and -taking four carbon copies of it, was worth £24? Witness: Yes.

Counsel: Then you have a very exaggerated idea of the value of your services. Did you .see all the .stock that you valued?

Witness gave a qualified affirmative. Counsel: Then tell me, please, how you saw the stock that was in bond. Witness: I didn't see that.

Counsel: How much was there? Witness: About £IOO worth. I knew the makers, and the style of the goods, etc., —

Counsel: Now, didn't you merely take the invoice, and adopt that? Witness: Yes, but I pointed out to Mr. Medley that the stock was not then worth the invoice prices as by then it was out of season.

Counsel: Yes, and you want £2 10s for that!'

Witness could not say who suggested that he should make this valuation. He might have suggested that a valuation should be made.

Counsel: Did you not volunteer your services to the D.0.A.? Witness: I swear positively that 1 did' not.

Counsel: If Mr. Medley and Mr. Watkins swear on their oath that you volunteered vour services ?

Witness: I still swear that I did not.

Witness said ho could not remember saying to Mr. Medley after the meeting, in the presence of Mr. Watkins. that the stock should be checked with his list. He might have said it. and he might have remarked that although it was only three weeks since he bad taken the stock some of it might have disappeared. He was confident that he was instructed to make thi.- valuation. He couldn't take the stock without valuation, but he really couldn't tell now whether th« word valuation was used. He might have said that the work would he less trouble than at the former valuation, but this did turn out to .be tlie case. There was an understanding among merchants that during the last fortnight they should supply the firm with stock on the understanding tiiat stock not sold should be returned, lie was instructed to make carbon copies of the original stock-sheet-.

Copies ol' the were put in. Mr. Quilliam waved a bunch of folios in liis hand. ''Here's our £27 worth. The lawV not in it with this!" Mr. Goodacre denied having come to Mr. Medley to ask if the prices of the goods were to go in 1. > Hie sitock-sheets, and that Mr. Medley replied, "You have the prices already, It won't be much

1 trouble. You'd ibettw put tliem in!' His son and his clerk, Were, of course. .• t in his regular employ, but were j titled to a bonus. They had not re- 1 j eeived it yet. j | The examination proceeded in refer-' ence to the actual time spent and labor I engaged in the stocktaking. . Counsel: Xoiw, Mr. Goodacre, I want,' you to put out of your mind your pro-' f(visional charges of 5 per cent, cm the) first £ ICO, and so on. J

Witness: I'm afraid I can't. Counsel: Well, come down from youT lofty pedestal as a professional valuer;Be just plain Mr. Hal Goodacre for ai minute. Don't you think that if you get £5 for services rendered you will be mighty well paid. Witness: No, I don't think so at all. Re-examined by Mr. Greys No one could possibly tender for the stock from outside unless they had access to stockslieets such as Mr. Medley had instructed him to prepare. He saw no invoices except for the bonded stock. Tliere was

no mention at the time of his engage ment as to the amount of his remuneration:

Abraham Goklnvater, w&olesale merchant, with considerable experience in valuing stock, said that in' the absence of a stipulated amount his charge was ;> per cent, on the first £loo'and222y 2 per cent, on the balance.

Wm. Humphries said he had liad great experience in making valuations, and his charge was 5 per cent! on l tfee first £2OO and 2'/ 2 per cent, afterwards. He had received 10 per cent; on tffi* first £ 100 and 2% per cent, on the' balance in the esta/te of Gryllfl Bros., and! had been paid by the D.O.A. The Bench remarked that this evidence was against Mr. Grey, for it showed that Mr. Medley must dispute' Mr. Goodacre's employments •James William Hayden, house farnisher, deposed that in valuing for probate his commission was 5 per 1 cent'., on the first £IOO and 2% per cent, afterwards.

Mr. Quilliam, in opening l his'case, said he would produce evidence that tJie plaintiff was- not engaged to' iriake a valuation, but merely to check' a sto«k in a small shop in Devon' street, to ascertain what stock had been removed: in two weeks from the time he had madehis valuation for the firm. Plaintiff was one of the largest creditors, and' when he suggested this stocktaking Mr;'. Medley had not thought he would makei charge "but that he was acting in the nterests of the estate. He didn't look' m him as a man looking for a job, so nfule no arrangement as to remuneraion. If Mr. Goodacre had given value or his services in his valuation on April i there could be no necessity for this ate one. He thought the Bench would >robably have something to say about he plaintiff's claim for valuing the itock in bond, stock of which he could ;naw no more than the D.O.A. himself, or he only saw the invoices. This was ibsurd, monstrous. Of course, it miglit )e said that the D.O.A. was lax in not miking an arrangement as to charges, >ut no one knowing Mr. Goodacre's itanding as a fellow-townsman would ,hink it necessary to heckle with him ibout a price in a matter like this, but vTr. Goodacre's action since had shown hat some such precaution was iary. The defendant, recognising that ;he plaintiff -was entitled to something or the work authorised, had paid £5 nto court. Mr. QuiMinm called

John Spencer Sehvyn Medley, Deputy Official Assignee in Bankruptcy, who gave evidence that the stock in this estate consisted of that in the Devon street shop and goods from Hunter and Co., of Melbourne, held in bond by the New Zealand Express Company for payment: of freight and duty. They had not been opened up, and the only information that could be obtained concerning them was from the invoices. At the first meeting of creditors on April 25 he had in his possession stock-sheets prepared by Mr. Goodacre on April 5. After the meeting 'Mr. Goodacre came to him, and said, ''l think that stock ought t' b« checked. I took it on April 5, but some of it may have disappeared. Anyhow, it's just as well to make sure." Witness agreed. Goodacre said "Shall I do it? I did it three weeks ago, and it won't be so much trouble to do it again.'' He understood that Mr. Goodacre -was merely to check the present stock by the list he had recently prepared. He did not engage him to value the stock, but merely to check it. Next day plaintiff came to him in his office,. and' asked "Shall I put the prices on the list?" and witness replied that as he already had them he might as well do so. Next day the plaintiff came to him and suggested that carbon copies of the stock-sheets would be needed, and heJ was requested to prepare them. Plain-1 tiff had nothing to do with the stock in j bond, or with the book debts. The first account included a commission for; examination of the book debts. Plain-1 tiff sent in an account, which witness placed before the creditors at the next' meeting. He explained to them his dealings with Mr. Goodacre, on the lines of his evidence, and said the charge was exorbitant. Mr. Goodacre sought to justify liis claim, saying the work had taken several of them four days, which was an exaggeration. The reason whyhe had not made a bargain with theplaintiff was that he was a large creditor, and creditors invariaWy assisted him' in the realisation of an estate.

To Mr. Grey: The stock-sheets siip* plied by Mr. Goodacre were sent to the D.O.A.'s at Wanganiii, Ha-wera, ;und' Stratford. The stock was sold by tendfer to Mr. Forder, of Warrganui, who did not personally inspect the stock or valftw it. The price obtained, lis Od in the £, was a fair price. Mr. Grey: You seem to think thai because Mr. Goodacre dfd this work twice and was not paid foe it, he shouftlf doit a third time cheaper still? The Magistrate remarked that) it seemed unrcasonaWe that the U.0.A., having in his possession the details of a valuation made a few weeks prior to the bankruptcy, should put the ereditois to the expense of a further valuation. To Mr. Grey, tJhe witness said' that Mr. Goodaore could not ascertaili' what stock might h'»we been unlawfully removed from the premises, and Plow much sold, without comparing an<V checking every item on the stock-sheet with every item on the shelves. Augustus ICdwa-rd Watkiiw, accountant, who -rewarded the minutes at the ; first meeting of Wood and Zemba's creditors, said he was present when Mr. Goodacre-and the D.O.A. bad a conversation about the necessity for checking the stoi'lirs, ami in this particular he corroborated counsel's opening and the evidence of Hie previous witness that the work required was the checking of the stock, not a valuation. This was not a valuation, not nearly so intricate. He would willingly have done the 'work (for £5?

The Magistrate, in giving judgment, said that lie was not satisfied, even on plaintiff's own evidence, that he had been engaged to make a valuation of the stock, and he had no hesitation in saying that there had been no contract of that -kind, but that the plaintiff was merely to check the stock. There was an implied contract to pay for this work, of course, and he thought £5 amiple remuneration. Judgment -was given for the amount paid into court, without I c#sts. Costs amounting to £1 18s were I allowed against the plaintiff.