DISTRICT COURT

Wairarapa Daily Times, Volume 6, Issue 1720, 26 June 1884, Page 2

DISTRICT COURT

MASTERTON-THURSDAY.

[Before His Honor Judge Davey.]

James Nicol, Thoa. Osborne, George Turk, Alexander Yule, jr. (foreman) were sworn as a jury.

McDermott and Williams v. Rapp & Hare. —Debt i'B7 5s lOd. Mr Bunny for •plaintiffs, and Mr Gray for defendants. This case arose out of a contract between Parker & Co. and the Masterton Road Board, Plaintiffs agraed to cut the timber required in constructing, a bridge on the Waipawa contract at 83 per 100 feet, and carried out their part of the contract, and the timber, cut was passed by the Board's Engineer. Plain-

tiffs obtained a guarantee from defendant (Rapp aud Hare) for payment of the timber as passed by the Board's engineer, and on the strength of that agreement allowed the timber to pas 3 from their hands, Rapp and Hare; boine;; soroliea to the Board for the completion of the .work,': The ■ defence put in ad mMed virtually the claim to the exient of 20,120 feet, ainountiiig to £BO 0j 9d, Defendants admitted having paid monies on behalf of the. above claim, and set up a claim against McDerraott' and Williams jointly and separately, a statement of which mt prepared, by defendants id presence of plaintiffs,' and showed tho latter to be indebted to defendants. : • Charles Edward Bremner, Engineer lo the Masterton Road Board confirmed the contract between the Board and Parker & Co, Was aware plaintiffs lia.l a contract with Parker & Co. and examined the wholo of tho timber squared and cut by Plaintiffs which was pointed out to him by Parker in the presence of plaintiffs., The quantity of timber supplied by plaintiffs was 21,824 feet, amounting at 8a a hundred to £B7 6a lid. • That amount of of timber was passed by him for tho bridso, and used in its construction. Payments were made 011 account of this con tract to Parker and 00. and to Rapp and Hare, it boing gmor.illy understood by Rapp and Hare that the. shim paid were 011 account of timber supplied in building tho bridge. Tho contract was completed in .the 1110111 h of May. Evernden, farker, and Pinkerton measured the timber, and Parker was satisfied with the amount. . By Mr. Gray—l condemned some timber which ii, I believe, now lying in the,.bush,,; .The amount paid Rapp & Hare was at the rate of 75 per cent' oil the contract generally, including earth and bridge work supplied, copy of quantitiei of timber to Parker since Decern oer, and account for. tho difference of 720 feet by •hero being two' pieces of timber condemned by me as 30ft pile lengths, afterwards cut iip-into shorter'lengths and. passed, : , Documents were handed in by Mr Bunny from defendants to plaintiffs stating willingness on part of defendants to pay plaintiffs al tho rate of 60 per cent, of timber passed iy the Board. R. Wilsone, Citrk to the Board, called, . said: Am aware Parker and Co. entered into a contract vith tho Board for the construction ofi tho YVaipawa bridge. Certain payments.wpre mulo to Rapp and Hare on tho order of Parker and 00, • Mr Gray admitted the payment's.;: 0, Pinkerton, called, said: I went out to. 'the Wuipawi bridge contract last December, and tieasured up the timber.' I supplied Mv bremner wi'li the total amount of the timber measured, which agreed with Evernden's and Parker's measurement, '. This concluded; the case for tho plaintiff. j The guarantee', of payment aiven by Rapp and Hare aid put in by Mr Bunny waß objected to bj His Honor, on account of its being unstamped. Mr Bunny It lis simply a letter,. A memorandum of agreement incomplete. His Honor ruic that it was an agree ment for a consideration ani required a stamp. It could be admitted by tho payment of the fiae. . M.i Bunnyl will withdraw tho docu ment as tho other side admit it, His Honor statejl ho did not say it was at all necessary to 'put in tho document, but the Court officers would take ohar»e of it. .. i

Mr Gray stated Itio defence was that a quantity of 800 ft of timber was disputed, and that McDormott and Willi uns wcro jointly and separately indebted to Rapp sud Hare, and that they requested Mr Rapp to make up this statement, which Fas dor.e iu their presence, and allowed ®balance against 'Motyrmott and WiU which tlio defendants now claimed, Waller Rapp, sworn, stated McDermott and Williams came to him and acquainted biin with tho fact that they had got a contract for .cutting timber from Parker and Co., and would require stoves, thoy agreeing to havo separate. accounts, mid to settle at end of contract their joint and separata accounts, Mr McDermott had dealings with our firm before. Somo Roods were supplied to the pariuersliip accounts and some to each otifj's private account, In November last both the plaintiffs were in my store with Parker and Snlhran, And ono asked me to have their accounts made out, which I did, and went over each item with McDermott and Williams,' and ttay acknowledged the correctness of the account, and asked for a detailed statement how each stood, which I gave. By plaintiff's instructions paid Sullivan a Bum due to him by tliem, Williams accused -McDermoit of robbing him, and they left the sloro grumbling at each othor, witness asking when they intended settling what they owed. They never applied for money afterwards, and the. present action \m tho first ho knewut plaintiff's claim,

W. Parker gave 'corroborative evidonce as to the quantity of timber supplied as stated by Pinkerton, and that Sullivan's claim was paid by Rapp & Hare on the anthovity of MoDermott and Williams, Jno. William Tattersall sworn, said— I was in the employ of Rapp & Hare, In accordance with instructions given by Mr Rapp, in the preaeuco of plaintiffs lie made out tho account of each plaintiff, the joint accounts were to bo,sot off against the,contract

John Williams, sworn-lam a laborer lesidinq at Erancepeth, and one of the plamiiffs in , thia case. Entored into a contract with Parker and Co, to out and supply timber for Waipawa Bridge which 1 did, the same being passed by the engineer. Have applied to Rapp and Hare for a settlement, but it was of no use, " Mi«ht as well have talked to tho wall." Had no joint account at Rapp's, always a separate one for myself. 'Axheque'WDS here handed to'witness who said lie never wrote the name on the back, will swear it. Was in the store when Parker, McDermott, Sullivan, and Rapp were, there, but did not go into a settlement/ Arranged in October with Rapp and Hato for thorn to pay us the money. Got a few goods from Rapp and Hare about f4. Mr Bunny: You never?

Witness: No never air, nover sir! Mr Bunny; Will you listen to what I havo to say ? Then you say you've never. Witness; No sir, I never sir! (Ltuich« tor.)

Mr Bunnv.; Do listen to what I have to say. Who was responsible to pay Sullivan?

Witness: I never authorised any one to pay Sullivan for me, If ihey can blio.»v my receipt all well and good. Cheque was handed to witnoss again, who, without looking said ho novor signedit. , His-Honor suggested that plaintiffs solicitor deal with the'issue of facts first and settle tho accounts after, as the jury could never follow the figures gone into without the papers before them. The quantity of timber supplied, the authority to pay Sullivan, and the agreement for accounts to he jointly nettied would bo i facts to deal with, .

Mr. Bunny agreed that the above be the questions siibtiiitted to the jury, but that the roods oharged against Williams & McDermott are disputed as to whether they were supplied. . :

The witness, cross-examined by Mr Gray, said he never signed a receipt:for £25, although he had £2O of it, Did not sign my name on ohequeg,, Sullivan ynorked for mo at 8s a day in August.

Gould lint say for how long, McDermott kept tbo time,' I paid him some moro/. Deohne to say how much, >1 had Dlenty of moneys could get it if I wanted it. My face iB good auywhere.' That's more than your'a is.

.His Honor—l don't think yon need follow this any further, : Tho witness retired gracefully. John McDormott, groom, was present when Mrßappgave his evidence of two Accounts put in aa set off to tho' claim. Remember on a. Saturday, being prosent with Mr Rapp and others. Mr Rapp went into figures, I admit tbat £2i was paid to the anil"Williams, Sullivan's account I know nothing of. He was there. (Cheque handed to witnoss who acknowledged the name on tho back to be his.) Ido not know when I did it, but that is my signature. I cannot Bay when I signed it, No word was said at any time about joint accounts, My account with Rapp & Hare was always aseparale one, which I paid in full un to October, 1883 (receipt produced). I av/a them no monies on. illy privalo account. I never agreed that my account should be set off against the 0 intracl, as I owed tliem nothing; ' By Mr Gray—l only eot £6 from Rapp and Hare. Had funds of my own to pay my way. I never got goods from Rapp and Hare, ro Parkers name. I don't know how long Sullivan ivas working fur us., / Have got the time book with nie. I went to got tho money irom Rapp nod Hare lo pay Sullivan, I don't know why 1 put my name at tho back of a cheque for 123 lGs I will not swear I did not got a receiot froin Sullivan for £23 lGs and gave it to Mr Bunny. I don't remember doing so, Hi>_ Honor: The evidence as to the quantity of the timber is very small. The Court heard the evidence of Mr Eremner who fixed it at 2184 feet at the time and this was not contradicted. Second, as regards to pay« ment to Sullivan. The cheque evidently paid and passed over to the plaintiffs for their endorsements, and the plaintiff got the benefit of the money, as, they owed Sullivan the amount. As to the disputed delivery there is no positive evidence, and it is for the Jury to say. whether in their opinion the plaintiff has had them; It's not enough that the items appear in the books .of a tradesman but some proofof 'delivery should be given. If the Jury consider the goods are supplied the question of the accounts'being all lumped together in our' accounts and settled at the end of contract. I'hore is not much direct evidence to prove that aneli an agreement • exis'ed. The plaintiff's denied everything, and their evidence was nut satisfactory. If defendant fails in his set off he has a remedy in the RM. Court, As a general rule the separate debts ,of a firm cannot be set off as against the firm jointly, The case had taken a deal too long, and should not have been brought before a jury at all, as they must fail to understand it. The_ questions were loft iu ihe hands of the jury, who retired at 5 30,

At 6,30 the jury found that the quantity of limber delivered was 21,824 feet. The payment was made to Sullivan of the cheque on behalf of plaintiffs by defen dants. That there was eviilonce of the goods being delivered on the partnership account, but not sufficient evidence to provo the existence of an agreemeut to set off the private debts of each against iho partnership claim. Verdict for plaintiff 126 and costs,