DISTRICT COURT.

Press, Volume XL, Issue 5711, 8 January 1884, Page 3

DISTRICT COURT.

CHRIS rCHDRCH Monday, January 7. [Before His Honor Judge Hardcastle and a jury of four.] H. X. NATHAN, A COMMISSION AOBNT, V RAPHAEL, A SOLI-TOB. Claim £173 13s 2d, money received by defendant on behalf of plaintiff, and damages sustained by plaintiff through the unskilful transaction of his business by the defendant. Mr Holmes, with him Mr Austin, appeared for the plaintiff, and Mr Stringer for tiie defendant.

The plaintiff deposed that about March, 1882, be instructed defendant to ascertain whether the solicitor of the Kaitangata

Coal Company had prepared a certain lease. Witness was gives the lease. He was landlord, and the company were the lessees. He gave defendant permission to draw ont the lease if the company would pay the coste. Some time afterwards witness was told by defendant that he would have to pay the costs of preparation of lease in the first instance, and could get the money from the company. He asked whether plaintiff would pay £15, saying that it wae worth £30, and witness, in reply, said that £16 would be cheap. The defendant sent in a bill, and plaintiff went and aeked him why the £15 was kept. Shortly afterwards defendant declined to do anything further unless his costs were guaranteed. Witness went up "andkicked ; up another dust/* The matter was settled, i and the lease made out. Witness went to ' his solicitor's office. Mr Baphael said the I company had sent the wnmg part, but got I him to execnte the same. A second part

I was completed, but not by the defendant. ' Witness got the lease completed by Mr , Watson at a cost of £12 odd. A bill of sale was prepared (Mr Stringer admitted . that it was defective) and filed. The bill i of sale was over the goods of Piper and Co. Shortly afterwards Piper went insolvent, and witness took possession. Defendant told witness to remove the bricks, saying if he did not do so he (defendant) would not bo answerable for any defect in the bill. The remove of the bricks cost him £10 Bs. When he realised on the bill of sale there was a deficiency of over £20. Subsequently the Trustee in Bankruptcy brought an action against witness to recover .32100 for illegal removal of the bricks. Witness won the action, but had to pay some £7 7s 2d as costs. In April and May a bill of sale was drawn up for a Mrs Wickes. The registration was defective. When witness Baw defendant he said the bill was defective, and said a new one was necessary. As the bffl was due he said a man should be put in possession. When at his office, plaintiff gave defendant an order to employ some one to take possession until the new bill was made out. Witness agreed to draw out the bill for twelve months. She was owing him £47 13s 6d. On the day when the new bill was to be made cut, defendant informed witnees that Mrsi Wickes was going to file, and that unless he (witness) put in a professional bailiff he would not be answerable for the consequences. Witness authorised C. H. Parker to take possession. He did not see a letter which Mr Raphael had received from Mr Stringer, until after the action of Wickes versus Raphael. [The letter referred to the movement of plaintiff inputting a man in possession.] As defendant told plaintiff he could settle, the latter authorised the former to do so for £43. Two days after this, the 9th or 10th February, he went to defendant for the money, in fact he went several days, and he replied he had not the money. On the 14th he got the money, and witness asked him for it. He wanted £3 for his trouble, and witness refused it, saying all the fault was his, and he should get it from the other side. Ultimately witness agreed to allow him £1, and take £42 himself. He received no statement of costs until March 12th, 1883. When he received the summons from Mrs Wickes he found that more money had been received than witness had received an account of. He took the summons to Mr Raphael and asked him for the bailiff's account. He replied he had not got it, but would send it when he did. He said he had received £43. Witness product d the summons, and said, "What's the meaning of that, then P" He replied that it must have been the bailiff's charges. He left the Bummons with Mr Raphael, and held him responsible for any losses he might sustain. Mr Raphael refused to take up the case. When it came into Court witness lost it, and had to pay £40 10s. Mr Raphael refused to refund the money. For five months subsequent to the case bis profits were less by onehalf than for the five months previous. When the case came into Court witness heard that the money had been paid under protest. Had only £43 been the total amount received from Mrs Wickes, all the money witness would have been entitled to would have been about £13. Tn cross-examination witness positively swore that he did not undertake to pay the costs of preparing the lease if the Company waived the registration. They waived registration, however, because he paid the cash. He tacitly agreed to the payment of £15 because ne could not help himself. He understood that £15 paid for the bill. Although the stamp duty would cost over £10, he considered the £15 covered that. Witness did not tell Mr Parker personally to seize Mrs Wickes* goods for £49. Neither did he tell Parker that he had made a mistake—£47 12s 6d being the amount due. He could not instance a case where a man had declined to borrow from him because of the Wickes — Nathan case. A. F. De Veaux, who acted as trustee . in —ift ftstete nf Pit—- — ——-*.».»_._ *<»*- - dence. C. H. Parker, bailiff, gave evidence of the possession. B. Simpson, tobacconist, gave evidence of certain conversations which passed between the plaintiff and defend—at in wit- i nesa's shop. He could not give the date. It was some time in 1883.

Robert Jones, a commission agent, had been employed, to collect accounts for Mr Nathan. He found great difficulty in doing 80. This closed the plaintiff's case. H. J. Raphael said that in accordance with instructions he prepared a lease between Nathan and the Kaitangate, Coal Company. The bill was his bill of costs, £15. He arranged with Nathan,. some time before he received the £15 from one Smith, in Dunedin, that the amount should pay for his work done in connection with the Eaitangata lease, and that he was to look to the Company for further costs. On the dry he received the £15 he rendered the bill of costs. Mr Nathan never made any objection to it; not before he brought the present action. The solicitor for the Company would not waive registration unless Mr Nathan waived his costs against the Company of the lease. The matter was carried through on this basis. The written promise to witness to do certain work was suggested by Mr Nathan.At that time not—ing was said about the stamping. When the lease came from Dunedin ho engrossed it, and Mr Nathan executed it. Witness asked £10 costs of stamping. Mr Nathan refused to pay the costs. Witness never told him it would cost only ss. As Mr Nathan declined the money, witness gave him the deed and refused to do another step. When witness mentioned the Wickes matter, Mr Nathan said he had taken possession in Piper's case. At this time Piper had become bankrupt. He never advised plaintiff to remove the bricks from the premises. Plaintiff's reason for moving them, he said, was to get a better price. He informed Nathan that the bill of sale with Mrs Wickes was defective; advised him to demand what was due, and if not paid to get possession. Had no idea what was done until some time after the seizure was made. He consulted Mr Nathan, showed him and read to him the letter from Mr Stringer. He advised him to put a professional bailiff in possession. Mr Nathan instructed Mr Parker to seize for £49. Subsequently witness had negotiations with Mr Stringer, regarding a settlement. Upon Mr Stringer's request witness ascertained that the lowest sum Mr Nathan would accept was £43 odd. Witness became aware of the promissory notes held by Mr Nathan after Mrs Wickes had served the summons. A new bill of sale was eventually made out to the satisfaction of Mr Nathan. Witness never demanded the cost of the preparation of that bill from Mrs Wickes. She refused to execute the b_L Witness never told Mr Nathan that be bad only received £43. Witness's costs were seven guineas. The amount received from Parker £47 12s 6d. Mr Nathan demurred at the costs, and witness agreed to knock off two guineas, which he did, and gave a cheque for £42. This left a balance of 7s 6d in Mr Nathan's favor, which witness subsequently returned. The cross-examination'of the defendant was continued until 0.30 p.m., at which hour the Court adjourned till 9.30 a.m. on the following day.