CLAIM FOR PROFITS.

Taranaki Daily News, 10 April 1922, Page 5

CLAIM FOR PROFITS.

NEW PLYMOUTH CASE. RUSSELL VERSUS STAINTON. DECISION OF SUPREME COURT. Judgment has been given by His Honor, Mr. Justice Chapman, in the case of Herbert R- Russell v. Stainton and Co. and P. V. Stainton, the hearing of which took place at the February sittings of the Supreme Court at New Plymouth. Plaintiff sued to recover a share of the profits of the business, contending that he was entitled thereto by an agreement made between the parties. In the course of his judgment His Honor states: “It does not appear to make any material difference whether the transactions under review are regarded as those of Stainton of* of the company. The plaintiff alleges that he acted as and carried out the duties of manager of the company, and that the company had the full benefit of his services from May 1, 1918, to May 31, 1921. He further alleges that in pursuance of an oral agreement made with the defendant company on March 9, 1918, the company agreed ot pay him for his services a salary 7 of £325 and one-third of the nett returns or profits of the company over and above £5OO. Plaintiff alleges that he does not know what profits were made down to April 30, 1919, but that in respect of the two succeeding years he has a claim for £868.” BASIS OF DISPUTE. His Honor continues: “It may be taken that the real dispute relates to his right to recover in respect of those two years; there was no dispute as to his right to recover in respect of the first year, and, substantially speaking, no question as to his having been paid whatever was due to him. It was also common ground that when the profits were ascertained after the deduction of all salaries and other office expenses the defendant Stainton was entitled to take £5OO before the balance

was ascertained, one-third of which the plaintiff was entitled to take either for one year or, as he claims, for three ” His Honor, proceeding, said he did not think any question of law really arises. Plaintiff suggests that the agreement after the first year would run on from year to year. “In the view I take of the law (the judge continues) an agreement such as this made before the commencement of a year to run for twelve months from the commencement must be in writing to satisfy the Statute of Frauds. “The agreement set out does not show in so many words that it is to extend beyond a year. The notion that it was expected to extend beyond a year is encouraged by the term which says that it is for a period of not less than twelve months.” His Honor proceeds to refer to the law on such issues, and quotes one authority as follows: “If the words of the instrument be ambiguous we may call in aid the acts done under it as a chie to the intention of the parties.” If this and certain other principles were regarded as settling the law applicable to the case it became one involving questions of fact, and in the main it was so treated at the trial. The evidence was very voluminous, in His Honor’s opinion, and took a long time to elicit. He confessed that he was unable tq understand why it should have taken so long, as there did not appear to be any undue reticence oa the part of the witnesses. Apart from conflict over minor matters, certain facts stood out very clearly, and he proceeded to refer to Stainton’s description of the business. “CONFLICT OF EVIDENCE.” There was a conflict of evidence between Stainton and plaintiff as to whether there was any discussion about the recision of the agreement. The learned judge continues: “Now the outstanding facts which are relied on to support Stainton’s version are that from May 1, 1919, until the service ended—that is to say, during the whole of the two years affected by the present claim—Russell never did perform the duties of manager* He took the position of produce salesman. What, however, is to my mind decisive is that during those two years Russell never made a claim to a share in the profits, and never made a step in the direction of settling up a claim. Stainton further says: ‘No balance-sheets at all were handed to Russell as manager after May 1, 1920.’ . . . The positive evidence as to the making of a change is not very full, but it ia what was done rather than what was said that gives the best key to the relations between the parties.” After quoting extracts from the evidence, to the effect that Russell had told certain parties be had assumed the position of grain and produce salesman, His Honor proceeds: “All these facts and many facts admitted by the plaintiff tend to support Stainton’s evidence to the effect that the change was a real change, not a nominal one, and that Russell acquiesced, not only in Stainton’s authority to make such a change, but in the fact that it was made. This must be coupled with the fact that for two years Russell lay by, knowing that nothing was credited to him in the books, never asking for a balance-sheet and never setting up this claim or anything like it. None of these facts are really in dispute. PLAINTIFF’S CASE FAILS “Taking all the circumstances into consideration, I am satisfied that the weight of evidence goes to prove that Russell was superseded as manager, and appointed to the post of produce salesman, and that he acquiesced in the position that this meant that the profit-sharing agreement, if it ever applied to these years, was entirely superseded. The decision in this case depends on the facts, and is the result of weighing the evidence, and I feel quite satisfied that the plaintiff has failed to make out his claim. “Judgment for the defendant, with costs as per scale for £B6B, with witnesses’ expenses and disbursements to be fixed by the registrar. A further day is allowed at £l5 15s, and a third at £8 Ba.”