AGREEMENT NULL

Ashburton Guardian, Volume 49, Issue 198, 7 June 1929, Page 2

AGREEMENT NULL

FARM MANAGER'S CLAIM

A QUESTION OF WAGES. (Special to the "Guardian.") CHRISTCHURCH, This Day. Frederick Charles Kelcher, of Aylesbury, farmer, in the. Supreme Court yesterday, Before Mr Justice Adams, sued Herbert Henry Cook, Christchurch, commission agent, dx>r the sum of £728 16s Bd. Plaintiff alleged that from July, 1922 to January 21, 1927, he was employed by Cook as farm manager, on Cook's farm at Goalgate at £3 a week, ■ Kelcher to supply meals to other servants, and Cook paying for all those meals at the rate of 17s 6d a week. Kelcher, for Cook, paid railway charges on goods and chattels delivered to or from the farm. Cook was indebted to Kelcher in respect to wages, meals, and railway charges to the sum of £728 16s Bd, with interest at 8 per cent. , «,.-»«• The defence was that Cook, in May, 1927, assigned his estate to Thomas N. Goodhart and John William K. Lawrence, accountants, as trustees for the benefit of Cook's creditors. Kelolwr, claiming to be one of the creditors, executed a deed of assignment and proved in the estate for £728 16s Bd. The proof of debt was admitted by the trustees, who had realised on the estate. Cook had a substantial setoff against the claim. There was a. partnership between Kelcher and Cook and the relationship of master and servant did not exist between the parties. Mr Twyneham appeared for Kelcher and Mr Sim for Cook. Mr Twyneham said that Kelcher alleged that his signature in the deed of assignment was obtained by Cook by misrepresentation! Cook promised that, if Kelcher signed, Cook's friends would pay Kelcher £SOO on account of Kelcher's claim.. It was for wages, and it was an express term of the deed of assignment that wages would be payable as preferential claims, as if Cook had been adjudged a bankrupt. His Honour: That would mean he would have three montlis' priorty for wages. Mr Twyneham said the sum of £SOO promised to Kelcher was not part of Cook's assets to be taken from other creditors. It was to be advanced to Kelcher by Cook's friends. His Honor: In any such circumstances, if a secret benefit is reserved or promised to one of the parties to induce him to join, it is a fraud on the others. I Mr Sim said that Kelcher was practically the only creditor left, except one other. Most of the others had taken security. If the remaining assets were sold Kelcher had reasonable prospect of getting a satisfactory dividend.He had had full benefit of the assignment. Mr Twyneham: It looks as if all the creditors except Kelcher have had priority. Mr Sim: Security. They have securities that satisfy them. Frederick Charles Kelcher said that Cook had told him that Cook's friends would find witness £SOO, and not to worry about the money. Cook did not say who they were. He said that witness would come in with the rest of the creditors for the balance owing to him. Mr Goodhart asked witness to sign the deed, and repeated that he would be paid £SOO. It was getting dark, and witness did not know if others signed the deed. Cook had promised interest on money owing, and had asked witness to stick to the ship like a good fellow. Cook kept putting witness off and never had paid him. To Mr Sim: He took no steps to set aside the deed. Mr Sim moved for a nonsuit, on the ground that, if his friend's evidence was accepted on its own value, it represented a fraud on the other creditors, and could not be of avail to Kelcher. Cook denied that any representation as alleged was made. On the assumption that it was made, Kelcher must be nonsuited. His Honor said the arrangement alleged by Kelcher was one by which he would get a fraudulent preference. Having signed without disclosure to the other creditors who signed, he could not now rely upon it. Being fraudulent, it wias absolutely null. In an estate there might be an influential business man as a, creditor. The debtor might go to him and say, "I am making an assignment, and I want you to sign. I will get friends to pay half your debt when it is all over if you agree to sign." If the influential creditor signed, it would be a distinct case of inducing other creditors to sign. Defendant was entitled to a nonsuit, with costs according to scale.