DISPUTED CONTRACT.

Taranaki Daily News, 28 February 1922, Page 6

DISPUTED CONTRACT.

PAYING A MANAGER. RUSSELL v. STAINTON. EVIDENCE CONCLUDED. Another day was occupied by the Supreme Court at New Plymouth yesterday in hearing the case of H. R. Russell v. P. V. Stainton and Stainton and Co. The evidence for plaintiff was concluded on Saturday, and yesterday the defence was heard. Mr. Croker opened the defence by moving for a non-euit in respect to the claim against P. V. Stainton upon the grounds that it was obvious from the plaintiff’s own evidence that he could have no claim against Stainton. Possibly this- would be consented to by counsel for the other side. Mr. Billing said he could not consent to the non-suit, but it appeared as if the position was as stated by Mr. Croker. As Stainton and the company were virtually the same, however, he could not say how the non-suit would affect the case.

Another non-suit point was raised by the defence, namely, in respect of the claim against the other defendant party, Stain ton and Co., on the grounds t hat if the plaintiff had any claim against either of the defendants, such claim could be solely based upon a breach of contract. It was clear from the evidence that, even if Russell had been entitled to have the agreement extended for a period of three years it had not been done because from what plaintiff had stated in evidence the contract was not carried out, and that for the last two years he had not been at any time employed in the capacity of manager for the business. There was, indirectly, an admission on the part of Russell that there had been a change in the arrangements under which they worked. Whatever claims Russell might be able to state, he could not, in the opinion of counsel, put forward any claim in respect of the management of a business which he himself had admitted he did not manage in the last two years. He, however, had admitted that he was entitled to nothing for the first twelve months. A NON-SUIT REFUSED. His Honor said it was undesirable to allow a non-suit at this stage in such cases, but he would reserve leave for counsel to move later. Proceeding with the statement of defence, Mr. Croker said it was admitted that for the first twelve months of the agreement Russell was entitled to th>claims arising out of the written memo., namely, £325 per year, plus one third ■of the net profits after taking therefrom £5OO (Stainton’s share), and allowing for interest at current bank rates upon all capital invested in the business. This contract was carried out, and Russell received any moneys to which he was entitled.

With regard to the two subsequent years, May 1919-1921. the defence was that in May, 1919. there was a fresh agreement made between the parties by words and conduct. The re-arrangement took place in the following circumstances: At the end of the twelve months of Russell’s management of the business it was discovered that the business had dropped by more than one-third in proportion to what it had been in the previous twelve months, the figures being respectively £lB,OOO and £56,000. This was so unsatisfactory that, as plaintiff said in the box, he and Stainton went carefully into the position. Stainton’s evidence was that it was then definitely arranged that from May 1, 1919, Stainton was to resume absolute control of the business, and that Russell should at once look out for suitable employment elsewhere, as it was very obvious there was not then room for the two of them in the business. Russell was permitted to stay on, however, as grain and produce salesman and traveller while he was looking for a new position. This portion of the defence had been clearly substantiated already. Plaintiff had omitted only one thing, namely, the actual rearrangement, of which he said he knew nothing. However, the defence would be able to call evidence that Russell later actually applied for two positions elsewhere, but was unsuccessful. Counsel thought that the plaintiff would not have been applying for another position in the middle of the year if his claim to have been manager on a yearly basis was correct.

OTHER GROUNDS OF DEFENCE. A further ground of legal defence was stated, namely, that of novation, by the introduction of a new partner, Johnston, who joined the firm in 1920. On the face of it the agreement with Russell was for twelve months only, and the further fact of the business having shrunk, and Russell having taken the position he did, showed that the contract was never extended. A final point of the defence set out by Mr. Croker was that plaintiff, by his conduct and actions, had waived the contract. For two years he was in daily touch with Stainton and other partners of the -business, and for tbe whole of the period he had acquiesced in everything that was done. This was in spite of the fact that he was being constantly “dunned” for money that was owing by him to the firm. The first indication given that plaintiff was going to make a claim was on the day after Russell had left the firm’s employ. His letter was a vague one, however, merely claiming moneys due to him, and it made no reference to the last two years in which he was in the company’s employ. Evidence was given by P. V. Stainton. principal of the firm of Stainton and Co. In reply to cross-examination by Mr. Billing, he said the arrangement with Russell was certainly for twelve months only. In May, 1919, it was arranged that Russell was to look for another job, but it was two years before he secured one. OTHER WITNESSES. Wm. Johnston, a partner in the motor department of Stainton and Co., Ltd., said Russell was regarded as an employee; he did not think he was recognised as manager. Another witness financially interested in the motor department of Stainton and Co., George R. Alien, said Stainton resumed control of the motor business when he came back from camp. Since May, 1919, Stain ton had been in control of the whole business. Evidence on similar lines was given by Miss C. W. Bain, typist, in the employ of the company. * The secretary and accountant to Stainton and Co., Ltd., Frederick E. Campbell, said that when Stainton went away cheques were counter-signed by Russell. When Stainton returned cheques were usually signed by him and gGQMioBAUy by Russell when Stainton

was out ot town. Alt important matters of finance were referred to Stainton. Some time after April 30» 1919, he was given to understand by Stainton that Russell was no longer manager. His position became that of grain and seed traveller for the firm. When Russell asked witness for a statement as to how he stood a memo was prepared showing plaintiff was indebted, to the firm for about £lOO. ,• No share of profit was shown on the statement, as Russell was no longer manager, and was therefore not entitled to participate. To Mr. Billing: He did not recollect Russell mentioning any suggestion about sharing profits. The evidence had been concluded when the Court rose at 5.30 till to-day. Counsels’ addresses will be heard when the Court resumes this morning.