WAIRARAPA DISERICT COURT.

Wairarapa Age, Volume XXXII, Issue 3201, 29 May 1909, Page 5

WAIRARAPA DISERICT COURT.

A PARTNERSHIP CLAIM. PLAINTIFF NON-SUITED WITH COSTS. DEFENCE NOT CALLED UPON. (Before His Honor Judge Haselden). The second day's sitting of the Wairarapa District Court yesterday was occupied in hearing a claim for £499 made by William Hugh Long, butcher, of Masterton, against Max Oscar Aronsten, auctioneer, of Masterton. The statement of claim set out as follows: The statement of claim set out that in or abjut the first week in April, > 1908, plaintiff opened a retail butchery business in Hall street, Masterton; plaintiff then entered into an agreement with defendant that the latter should manage for the plaintiff the financial part of the business, receiving for such service per cent, upon the gross takings of the business. Upon this basis the business continued till March 20tb r 1909, when the plaintiff determined the agreement upon the ground of the defendant's mismanagement and failure to keep books or to account; defendant failed, after demand, to produce any proper books of account or any statement of his receipts and expenditure or showing what had become of the plaintiff's monies he bad received; the defendant, under the agreement, was liable to account for bookings as cash; the gross amount of retail sales andj booking, so far as could be ascertained from such books as were kept, was £4,980, which, ! after deducting commission, sbbwed a net return to the plaintiff of £4,606 10s sd; plaintiff received only £4,355 16s sd, out of which must be deducted £7O for sale of another butchery business conducted by him in Masterton and estimated amount of £6OO from returns of - that business, acd also an estimated amount of £6CO paid intc plaintiff's account by plaintiff for skins, tallow and bides sold by himself, apart from the retail butchery business; the deficiency unaccounted for by the defendant, after allowing him commispion, was therefore £1,520 14s, but off this must be credited £295, amount* paid by defendant to Ben Kayner, farmer, on account of plaintiff, leaving a net deficiency of £1,225 14s, which, it was alleged, defendant totally failed to account for to plaintiff. The sum of £499 was sued for by plaintiff, abandoning the excers, so as to give jurisdiction to the District Court. • Messrs C A. Pownall and D. K„ Logan appeared for plaintiff and Mr P. L. Hollings for defendant. The case was taken before the following jury:—G. C. Summerell (foreman), Colin Campbell, John Judd and W. A. Horne. Mr Pownall, in opening, applied'to have an amended statement of claim admitted, whereby damages were claimed as an alternative. His Honor, after legal argument said that he would not allow the amendment at that stage. Mr Hollings then said he hadf revolved in his mind a suggestion made by His Honor that the matter might be settled by arbitration. Counsel soid he was quite prepared to let the matter gc to arbitrators—to the Registrar, if necessary—as otherwise a multitudious amount of detail would have to be gone into which would occupy a great amount of time. Mr Pownall said the proposal, coming at the eleventh hour, was too late for his client's convenience, and counsel would not now agree. Mr Pownall then opened. He stated that the parties were in partnership as butchers in Hall street, Masterton. Plaintiff knew Jittle about books. It was therefore arranged that while plaintiff was to do the work of management of the business other than the financial part, defendant was to keep the books ana attend to the financial work. Defendant was to receive 75 per cent, for this work, equal, counsel stated, to about £9 a week on the business acually done. The arrangement was that the books were to be balanced every Saturday, defendant was to take his percentage, and then hand the balance to plaintiff, who was responsible for the outgoings and paid them. After two or three months, during which time things went smoothly, defendant increased his percentage to 10 per cent., making his share equal to about £l3 a week. The method of bookkeeping followed by defendant was such that he grouped the sales of china, fruity fete., in his own auction room—a separate business —with the sales of meat, and left, it for plaintiff t find out what represented his portion of the sales. Things went along as stated . with the partnership till March 15th, when plaintiff consulted the speaker, which resulted in a letter bsing sent defendant demanding a full statement of the financial position of the partnership, and a statement of the incomings and outgoings during th partnership. (Correspondence was here read to show that accounts were demanded, and that appointments were made by defendant to allow inspection and postponed). Counsel contended that no proper accounts had even to date been received. The books of the Masterton Abattoir would disclose that the value of the stock which passed through the firms* hands was £845 7s lOd, as against the amount shown by defendant in

Ms alleged books of £4,980. Counsel called— ! William Hugh Long, plaintiff, !»ho stated that some eighteen months ago he came to Masterton, and that he was. an expert butcher with; the knife. Witness was entirely usable to keep hooks. Witness arranged with Rayner to supply him with meat, which was sold in defendant's auction mart, defendant to receive 71 per cent, on the gross receipts of sale. Defendant agreed to charge 7J per cent, and to keep the books, and handle the money. .The 7£ per cent, included rent. A big trade was done, the prices being low and for cash. For six or eight weeks regular accounts were submitted by defendant, and money was plentiful; after that they came Irregularly. After five months the commission was risen to 10 per cent., the only reason being, so far as wit- ' ness could see, was because a small machinery plant was installed. The business ought to have made anything from £4O to £45 per week during the first six months. There were errors in the accounts after three months, and when witness complained accounts were submitted in a group. Since witness had had the business himself (March 22nd) he had paid for all stock, and picked up about £l2O of arrears."; Witni;3.s <nl > n vr. op to about £3 a week for himself. All defendant's cheques were paid into his (witness') bank, and witness gave his own cheques for stock. All money from sales in the shop were handled by defendant and his wifcw In January defendant told witness in the hearing of Rayner he owed witness £3OO. The value of the portions of the premises rented by witness would be about £1 a week.' On three occasions demands were made. On the third Mr Pownall telling plaintiff to take the Keys and keep sole possession of the premises. No accounts had since been furnished by defendant. f „ By Mr Hollings: It was in June last year that witness first became dissatisfied and the reason he did not complain until March was because of expectations that the amount on the books could be cleared off, and a proper settlement made. Witness was here shown the list of items alleged in the statement of defence to constitute amounts paid to witess and goods supplied, both from the business and by defendant from ,bis business. Witness disputed having been paid in cash two separate amounts of £ls for race meetings, stating that the amounts were only £lO -in each instance. He also disputed having received other items mentioned. . Gieo. G. t C6rk, accountant; em-' ployed.by Mr G. A. Pownall, stated that be had investigated the books of Longland'Aronsten. . The latter said! there were no books• except a' ledger, which; came into use in November; last, but later produced other book's, cash b6ok ahd day : books; It occupied witness some three weeks to deduce a statement from these books. Entries were made in one book which should have been carried into other books, but this was not done. Witness stated that it was difficult to tell how much cash had actually been' received from the cash book. The ledger showed credits without showthey were made up. The ledger could give no guide to profit and loss, or receipts and expenditure. Witness had estimated the amount of stqck sold hid realised at £7,267 15a, from a tally made by the Abattoir Manager. Witness bad taken the cash himself during the last few weeks, and this assisted him greatly in forming an accurate estimate. By Mr Hollings: Witness had now an interest in plaintiff's business* having arranged to go into partnership ultimately with plaintiff. The week before last the takings were £ll7, exclusive of any book debts Witness said there were hundreds of entries which could not be decided upon through the manner they, had been set down books.. Witness and Mr Banriatyne, defendant's accountant, agreed to leave these out,as the cash ' book did not balance if they were incladed. Arthur D. Gillies, Abattoir^Manager, at Masterton, produced the book s: of the works from which he showed the, stock which bad been killed on behalf of the plaintiff from March, J 908, to March, 1909. Harry Kyle, storeman, .Welling-, said he managed the A 1 Butchery from August 17th, to Octo-

ber 10th. Witness complained about the loose system of boukkeeping in connection with the main business, without any result. Benjamin Rayner, farmer, Master' ton, said he supplied the majority of the stock for the business. This concluded the plaintiff's case. His Honor said that i t would be a proper thing for the jury to say at this stage whether the. plaintiff had established is ;> cash. Plaintiff in effect set up that defendant was his agent and that he had to account to, plaintiff for all monies received. It ?eemed to His Honor that the position was that the arrangement was a partnership purely and simply, and plaintiff had taken upon himself to sign certain receipts which purported to effect a settlement of accounts. He gave the jury an opportunity to retire and consider whether the plaintiff had established a prima facie case— before the going into of defendant's, evidence. His Honor," after a retirement of a few minutes, recalled the jury, to call their attention" to statements contained in the proceiedings, which, on further , examination, made it, in His Honor's opinion, incumbent on the defendant to prove that th 3 £4,980 alleged to have been received by defendant had been paid by defendant. Mr Hollings then moved for a nonsuit, contending that it had not been definitely proved that any amount whatever had been received by defendant. Mr Pownall replied, «fter which the jury again retired on issues submitted by the Judge, which were-to the effect that if the jury found that the relationship between the parties was one of .master and servant, then the evidence of the defendant should be gone into, but if it were a coadventure, then a prima facie case had not been established, and defendant was entitled to a nonsuit. After 15 miniStes' retirement the jury returned, the foreman stating that they had come to the conclusion that the partners were coadventurers, and further that plaintiff understood, when he signed the receipts purporting to settle accounts, that the accounts were correct statements of the position of the business! On this opinipn a nonsuit was entered by His Honor with costs amounting in the aggregate to £26 lis. 1 Mr Pownall asked His Honor to note that he (Mr Pownall) did not acquiesce in the putting to the jury bf the issues. Counsel asked that security be fixed for appeal. / His Honor made the amount £35.