SUPREME COURT.

Press, Volume XLVIL, Issue 7730, 9 December 1890, Page 3

SUPREME COURT.

SITTINGS AT NISI PBIU3.

MONDAT, DECKS-B-B a (Before his Honor Mr Justice Denniston

and a special jury of twelve). The civil sittings re-opened at 11 a.n_

I AND KKSON V BSWABOS. 1 Mr Joynt appeared for plaintiff, and Mr George Harper for defendant. i Mr W. Devenlsh Meares waa chosen I foreman of the special jury. | In this case Gilbert Anderson, merchant of Christchureh, was plaintiff, and Nathaniel Wallaby Edwards, trading lithe city of London and at Christchurcb under the style or firm of Edwards, Bennett aud Co., merchants, defendants. The statement of claim alleged thac, under a deed dated September 28th, 1888, made between the panics to the action it was agreed infer alia, that the plaintiff should during the term of two years and six months from the Ist August, 1898 (if both parties should so long live, and It defendand should continue to carry on business) serve the defendant aa general manager of the New Zealand branch of his business, and that the defendant should pay the plaintiff a salary of JSUOO per annom, together with sucb farther sum as should be equivalent to the surplus profit of the New Zealand business for the half year ending 31st January and 31st July respectively. That for the purpose of determining the surplus profits the total capital employed in the New Zealand business, as valued in the capital account of the books of the firm, should remain as nearly as possible at £40,000. That from the gross profit- of tbe New Zealand business should be deducted—(l) Interest on the overdraft, if any, at the Bank of the firm in Christchureh; (2) interest on the capital employed as valued on the books ot the firm at stock-taking at the rate of 7 per cent, per annum; (3) working expenses, rent, rates, taxes, salaries (Including that of plaintiff), wages, charges, Sec, bad debts, and.provisions for loss on doubtful debts; the surplus* remaining to be the surplus profit payable to plaincif- It was provided that . stock should be taken and the books balanced on 31st January and 31st July in each year. It was agreed that the London house should as fully and as exactly as possible carry out all indents and orders in reference to goods, especially as regarded quality, value/-description, and time and manner of shipment; and further, tbat should defendant determine the engagement of the plaintiff, or other circumstances arise causing him to dispense with his services before the expiration of the term agreed upon, the defendant should pay to the plaintiff a sum of money sufficient to make the surplus profit for 1 every half year or a portion thereof elapsed since Ist August, 1888, equal to £400 for such portion, and that in case the defendant should determine the engagement as aforesaid, a farther sum should be paid to plaintiff equal to the amount of the profits for the business half-year completed, immediately previous to such determination, but such further sum was not to be less than £400.. It was .agreed that the London business was to be expressly excluded from the agreement, only to act as sole agent for the New Zealand business. In pursuance of the agreement the plaintiff entered on his duties on Ist August, 1888, and continued to act as manager of the New Zealand I business until the 4th of July, 1889. On {the 4th of July, 1889, the defendant gave plaintiff notice that he determined to put an end to the deed, and to the engagement i of plaintiff, as from the 4th of July, 1889. I The defendant paid to the plaintiff the 1 Salary of £-00 per annum up to June 30th, 1889. For the half-year ending the 31st of January, 1889, there were surplus profits to the amount of £59117 sod. For the portion of the half-year ending the -th of. Julyj 1889,; :there remained for surplus profits, payable to the plaintiff, the sum of £3075 13s Id. That in the months of July, August, and 1888, the plaint-- transmitted to the London office orders for drapery, suitable for the winter season of the year 1889 to the extent of £4252, and the said drapery, ought to have been purchased by defendant as agent for the New Zealand branch' in London 1 , and'- forwarded to Christchureh so as to arrive In the month of January, 1889, so that,the same might have been sold to the retail drapers here. The defendant, however, negligently omitted to purchase: and forward: the drapery in time, and only forwarded goods' to the amount of £537 in time for sale to the retail trade in February. < - It -was - aliened that had the defendant, in pursuance of his duty as agent tor the New Zealand branch, forwarded the drapery in time to the value of £4252, as ordered by plaintiff, the plaintiff could have sold the same to the retail trade in New Zealand during the, month of February at a profit of _oper cent., and that by reason of such negligence the plaintiff lost this profit, It was further alleged that tbe plaintiff had not been paid the salary under the terms of the deed for the month of July, 1889, and that it was still due. The plaintiff, therefore, claimed (1) £594 17s od aa surplus profits for the half year ending 31st January, 1889; (2) £3075133 Id for similar profits for half year ending- 4th July. 1889; (3) £743 for damages instanced by plain!-- in loss of profit on sale of drapery, owing to defendant not forwarding same in time for sale; (4) £594 17s 5d as compensation for determination of plaintiffs engagement by defendant, being tbe amount of surplus profits for business half year completed immediately previous to such determination ; (5) sundry small claims for iuterest, &c, making a total claim of £5927 lis Id, for which plaintiff" prayed judgment. Tbe st—.Cement of defence d«j_ied all tbe material allegations contained ia tae statement of claim. It also alleged that the surplus profits for the half-year ended 4th July, 1889, amounted only to £613 13s lld: that the plaintiff whilst in England iv May, 1883, instructed tbe London firm not to execute the order for winter drapery referred; to until further instructed from. New Zealand. Oa the pontiff arriving In New Zealand in July, 1388, It waa arranged between plaintiff and defendant that a cablegram should be sent to the London house to send out the drapery, and the cablegram was sent on September 18th, 1888. The order waa thereupon duly executed and forwarded to New Zealand with all convenient speed, bat the goods could not be procured in time to arrive in New Zealand as early as was Intended; and that the plaintiff entered into the agreement with defendant well knowing .that the goods coujid not arrive in time. The other paragraphs ot the statement of claim, except that with reference to the non-payment of salary were denied. The defendant admitted that be was indebted to the plaintiff under the provisions of the deed in the sam of £1435 8s 3d» made up a* foliawsv-aji $m tot allowance to

"plaintiff in lien of profits for half year ended 31st January, 1889; (2) £81816s Ud for profits for tbe portion of the half year ending _th July, 1889; (3) £400 for compen-aatibfcfgrdgtfiglbi-atlon of defendant in lien ot profits for the business half year completed immediately previous to such determination; (4) £16 13s 4d, beingsalary for the month of July, 18% at tbe rate of £200 per annum. That defendant has been, and is now ready, to pay the said sum of £1435 9s 3d, and has tendered the same, but the plaintiff refused It, and defendant now pays it into Court. It was further alleged that on the 31st January, 1889, an account waa taken and settled between the plaintiff and defendant. Mr Joynt opened the case for the plaintiff, and read a portion, of the statemeno of claim, pointing out to the jury that with the question of profits on the operations of the firm dne to plaintiff they had nothing to do, bnt the mala question for their consideration was whether the plain" tiff was entitled to recover the amount claimed aa damages on account of the defendant not having shipped certain drapery, as ordered, whereby the plaintiff lost the profit arising thereon, which be would have been entitled to had the defendant carried out the clause of the deed referring to the shipment of goods by the London house in accordance with the indents sent Home by plaintiff! The claim, therefore, that the jury had to decide upon was only the amount due to the plaintiff as profit on the drapery which was alleged had not been sent as per indents. He might say that the sum of £757 put - into the statement of claim as being the amount of goods sent out was not correct. The correct amount would come out in the evidence. Since the commission had come out from England there had been found to be certain discrepancies in the statement of claim, which would tend to a reduction of the amount in favor of the defendant. The learned counsel then proceeded to sketch the case to the jury, divested of its legal technicalities, pointing out that the manager of defendants house in London, though receiving the winter indents in August, did not execute the orders until the Bth October, and then tbe orders came in driblets and in such a manner as not to be of any use for the winter season trade. It was absolutely necessary that the winter goods should be in hand by Ist February, as that was the date at which the travellers of all the wholesale houses weut out with their samples. The plaintiff's travellers were not only detained until a very late period of the month, but when they did go out their samples were very meagre and had to be made up out of the goods of the previous season. The result of this was a serious loss of trade, a loss which it was impossible to make up. borne argument took place between Mr Joynt and His Honor on the subject of the putting in of the evidence taken for defendant under commission, Mr Harper holding that if Mr Joynt did so he would make the witnesses for defendant witnesses for plaintiff. . Mr Joynt submitted that unless he gave the evidence of the defendant's witnesses his evidence taken under commission would be unintelligible, as the plaintiff's evidence was in contradiction of that given for defendant. His Honor declined to express any opinion whatever as to the result which would follow upon the defendant putting In the evidence of the plaintiff. After some further discussion, Mr Joynt decided to put in the evidence given under commission for the defendant. The Registrar, Mr Bloxam, then commenced to reed the evidence taken under commission, which occupies quite a formidable number of folios, and lasted the remainder of tbe sitting up to the adjournment of the Court.