THIS DAY.

Auckland Star, Volume XXVI, Issue 4416, 9 July 1884, Page 2

THIS DAY.

R. Al. Fiui'i' v. Thomas Upton.—Claim, CM, value of a cheque.—Mr Edmund Mahony, instructed by Mr J. A Beale, appeared for tlio plaintiff, and Mr Tlico. Cooper for the defendant. —Robert Mackay Fripp having been sworn, stated undor examination by Mr Cooper that ho was an architect, and was suing under a cheque which he hold from the defendant. In April last; at the direction of Mr Michael White, bo invited tenders for the erection of two houses in Parnell. Amongst the tenders sent in was one from the defendant, accompanied by a cheque for £10 scut by way of deposit. On tlio 7th of April defendant was verbally informed that bis tender had been accepted, and five days later notice of the acceptance was given. In the meantime, the defendant told him that through some mistake in his addition be had tendered too low, and that he would require an advance of £1-1 upon the amount lie had named. Witness replied that such a thing was out of all precedent, and that ho could not. possibly allow it without first consulting Mr White. The defendant then requested back his cheque, and on this being refused he slopped payment at the Bank. The cheque had been given to witness by Mr White in satisfaction of his claim for preparation of plans and specifications. Jlo did not learn until yesterday that Mr White was an undischarged bankrupt. — Thomas Upton denied that he over received any verba! intimation of the acceptance of his tender. The tenders were opened on the 7th of April, in Mr Fripp. office, and witness's tender was found to be the low est. He took tho plans home with him, and on going ovor his estimate he found that through mistaking a 7 for a 0, he had tendered £20 too low in each case. He therefore went back to Mr Fripp, explained tlio error, and told him that he would require uu advance of I'M upon tho amount of his tender. Mr Fripp said that Mr White would not be likely lo agree to this, as lie was a hard old nail to deal with. As ho could not get his tendor amended, or the deposit returned, bo slopped payment of the cheque—Michael White,. toicman, deposed that in April la_t he instructed Mr Fripp to invite tenders for building two houses. It was truo that at I hat time lie was in the Bankruptcy Court. He was, however, only acting as agent for another party in having tenders called. That other party was his wife, and the houses were to have been built with borrowed money.—This being the case, Mr Cooper submitted that tho defendant had a perfect right to withdraw his lender at any time before the written acceptance was delivered. —Mr Mahony having replied, II is Honor held that the defendant must win the action both on the general ground that there could be no contract until both parties were formally bound, and on the special ground that notice of the acceptance .-hould have been given in writing and the contract signed by both parties. He did not sec, indeed, why the case was brought into that Court at all, mid therefore allowed costs on the lower >_ale to the defend.-ir.it, said costs to be taxed.

Frank G. Clark v. Ac'iust VolmiuaciiT

-Claim, £1.2 _d, for bread, of contract.— Mr J. M. S|)ccd for the plaintiff, Mr C. TC. Button for the defendant.—Frank G. Clark, fhe plaintiff, deposed that in September last the defendant, having just arrived from Wellington, and being busied in floating a Tobacco Manufacturing Company, saw witness and engaged him as tobacco-grower. His duties were to be tho distribution of tobacco seed to fanners, the giving of information to them, and the supervising of their operations. He was to receive remuneration at tho rato of i 5 per week, besides his travelling expenses. He was formally engaged on the 22nd September. On tho 2Sth of November the promoters of the New Zealand Tobacco Company were to havo a a meeting, and defendant, who was to be manager, asked witness to send in an application to him for engagement and consent to accept L 4 per w.Oa until tho Company wis in proper . oking order. He did so. During all this tin c he was working for defendant. lie furnished him with seeds, wrote him a pamphlet on tobacco culture and performed other set vices, and the only roturn he had received was pa\m.'nt of his travelling ex-penses.—Cross-examined by Mr Button : Ho considered himself defendant's and not the Company's servants, and yet lie had first of all sent in hi_ claim t. the Company. That, however, was at defendant's request, in order to show the Company what services he had performed for him. Atdefendant'srequcst, also, ho had sent in repeated applications to the Company for employment as manager of tho Tobacco Growing Department at a . a'a'y first of L3OO per annum and tbea of [."50 per annum, exclusive in each case of travelling c-xponses. But for defendant's engagement with him he could not havo obtained employment with tho Auckland Tobacco Com[ any. The receipt producod, dated 7th December, was given by him, but he could not recollect whether or not the words "in part payment of wages" wero added by him after the receipt had been signod. It did not much matter in his opinion. [His Honor reminded the witness that it mattered so much that it catno vory near to forgery.] Ho did not think that ho could have boon fool enough to do such a thing. The words might havo been added after the receipt was signed but boforo it was handed over.—Various other receipts for sums paid from time to time in respect of services rondoredweroproducedandacknow ledged. They extended in date to the middle of April. An acknowledgment for a loan from defendant was also produced.— August Vollbracht, the defendant, deuied positively that he had made any agreement to engage the plaintiff. Tho plaintiff applied to him for work, and from time to time he gave him something to do, and in every case paid him for it. Plaintiff applied for i n appointment under the Con.pmv, but his application was refusjd. Witness employed him to visit various farms and give instruction, and after each such visit he settled up with him, paying for his services rendered as well us his travelling expenses. Tho pamphlet was written at witness's own dictation.— The witness was cross-examined for some time, when His Honor interviewed by saying that it was no use wasting the timo of the Court Ion; Or. The plaintiff had failed to provehis case. Z Judgmont was then "given for the defendant, with costs, to bo assessed on the lowor scale.

Edwin Latimer Claw, v. Rice Owen Clark, jun.—This was an action for tho partnership accounts, and an order for any balanco that might remain.—Mr C. E. Button appeared for tho plaintiff, and Mr Theo. Cooper for the dofondant. The formor gentleman i:i opening, explained that the action was originally ore between a father and two sons engugod in the brick and tile manufactures. The plaintiff was rather weak of intellect and had consequently been incarcerated in tie Asylum forja time, but he had skill sufficient to make an invention for which a patent had been taken out. He had not been fairly treated by his father and brother, and consequently ho had asked for a dissolution of the paitnership After some conforenco botwoon the learned gentlemen, it was agreed to accept a decree empowering the Registrar to take accounts between the parties, and to oxamino witnesses on oath, leave being given to either party to apply afterwards, and the question of costs being reserved.

Samuel Attewell v. Wm. Pawkes : action for dissolution of partnership.—Mr E. Mahoncy for plaintiff.—Mr Theo. Cooper for defendant. - The latter gentleman intimated that under tho Act of JSG6 it had beon agreed to refer the matters in dispute to the arbitrament of Mr Holland, builder, who would l-oport to the Court. Ho therefore asked that the case should be adjourned till the next sittings of the Court.— Granted.

Thos. J. Franks v. John Adams : Claim, £150, money in hand of defendant.—This case was struck out on account of the bankruptcy of defendant.