SUPREME COURT.

Press, Volume XLVIII, Issue 7803, 5 March 1891, Page 3

SUPREME COURT.

SITTINGS AT NJSI PRIUB.

Wednesday, March 4. /Before his Honor Mr Justice Denniston.) toe civil sittings of the Court re-oponed tflo.3oa.m. KAIAPOI MILLING AND PRODUCE COM.PASY V SMITH.

In this case, which was an action and Jnntor claim, the defendant surd the Presented loss on a joint transaction Eed between the defendant Company tnd ulainiiff with . egar to some pjtaKilt was agreed that the counter & should be taken first. In this the Kaiapoi Milllug ana Produce Cumpa y of tui h Bieoard Ev.uih was Chairman of n^tors was plaintiff and Hay Smith, if TtktaSoi, defendant. The plaintiff sued for £120 5, 2d, half share X loss ou mi alleged joint venture Keen tbe parties lor the purchase of «™ tons of potatoes, ihe crucial pjint in the case wa» whether or not oue Movers & commission agent in CuristAfirch'wasatthe time ol the making of tfie alleg d agreement the agent o< the Xfendaut, which he denied. Mr J B Fisher appeared for the plainGresson, with him Mr Deacou, far'the Defendant. Mr Fisher said the points, as alleged by thßOlftiQtiir, wete as follows:—On the Mod July, I** 90 * one Al«yer»» » broker in Cbristchurch, who, it was alleged by nl&inliff, was extensively enr.ployel by the defendant to act on his behalf in the Bales of produce, and as such had traueaetums with plaiutiir, asked Mr E*ans, the Chairman of Directors of the plaintiff Company to purchase -0J tous of Serwent potatoes. Meyers said the nrice of the potatoes delivered on fhl Saoier wharf would be £2 12$ jw Mr tou. lie tuld Evans that if he bought the potatoes at ibis price and SuDDetL them away to Australia ue would make money. Evans said (hut he did noTcare to go in for so large a I rausacikm, and ileyers then said that Haj Smith, the defendant, would stand in with him, juid would share the prolit or the loss. After some further conversation Evans taii that he would uot mind going into the speculation on a juint account with defendant, provided the plaintiff Com««ny had the control ot the shipreeilit. This was agreed to by Meyers, and subsequently the sale was effected to the plaiutiff Company by Meyers on the joint account of ihe Company aud defendant, it being agreed, as stipulated ay Mr EV4DH, tb*t the plaintiff Company should hare tbe control of the shipment. On the 2nd July Meyers wrote a. letter to the elftintiff Company confirming the sale of the 200 tons of potatoes on joint account, with defeadaut Hay Smith, under the conditions mentioned. Tuc plaintiff Company then put themselves in eoinuiunieallon with Meyers' principal iv Nap.er, irotn whom he hud purchased the potatoes, and subsequently received and disnosed of the total quantity of potatoes as norchased. They were sent to Australia, and after the realisation of the shipment of 200 tons, there was a deficiency on the sale of £256 10s 4d. The plaintiff Coinnany now sought to recover from the defendant halt hi-» loss ou £120 5s 2d. The plaintiffs alleged that they had communicated with Meyers, as accent of defendant, on tile receipt of the account oales, and subsequently, when the salt* of the potatoes was complete, Evans, who had purchased wheat vn ihe Company's account from&nltb, through Meyers, called Smith's ■attention to the loss on potatoes shipped, Hβalleged onjuint account of the plaintiff company aiii the defendant, and wished to set off defeudaut's share of the loss against the price of the wheat purchased bythe plaintiff company from the defendant. This, however, the defendant declined, alleging that Meyers hid not acced as his agent in the matter. Hence the present action. The whole question Oβ* fore hit) Honor, therefore, wus to decide whether in this transaction with the plaintiff company as regarded the potatoes, Meyers acted as the agent of the defendant. It was agreed between the parties that no question as to the accuracy or otherwise of the figures in the account sale* should toe raised, but that the whole of the evidence should be directed towards the question of agency, or no agency, on th« parfcef Meyers as regarded the defendant. Mr Fisher then called wituesses.

AC fiio close of Mr Fisher'a case,

* Mr Gresson submitted that the written contract of the 22ud July, alleged by the plain tiff to have been made by Meyer* on behalf of defendant to take half Bfiare in the venture, was not borne out by the evideuce. All that had been brought oat in evidence was that Smith was to go 'Infor flfy tons on joint account, and chat ihe plaintift'conipuny were to lake 150 tons Oα their own account. He submitted that 'thei'plaintiff must be non-suited, as what ihau been proved was contrary to their declaration. His Honor pointed out that under the rales they did not non-suic now for Mr Gresson would then proceed with lls case. The defence was a denial, on the part of the defendant, that Meyers ■was in any way his agen , and the defendant would give a complete and positive denial to this. The delendant would tell the Court that Mevers owed him money, aud he allowed hiiii to set off auy comuiis«QUß against this sum. Evideuce was then led for the defence.

.His Hocor, at the conclusion of the caso for the defendant, summed up the evidence, pointing ouc that the plaintiff hud relied upon tbtj letter written by Meyers to the Company, which clearly act forth the "transaction under date of 22ud July. But vrLen Meyers came into the box he not Onl¥Autedatedtheletterbyamouth.butalso eattrely altered the amount of the joint speculation on defendant's part from 100 tcaatooO tons. Thus the plaintiff ComSin? was driven to rely upon a totally fferent agreement to ibe - one set forth Iα their declaration. Tho qneation was whether the Company bid satiseed the Court that the agreement said to have been entered into with Smith as to the fifty tons was ratified subsequently by Smith himself. He was quite satisfied that the plaintiff had not fulfilled the onus which laid upon them of proving that Mr Saiith tod ratified the agreement. Hence toe judgment would be for the plaintiff, Smith, for £128 5s 2d, the •Woaoßwitu that paid into Court sued «B\?J Smith for wlmat sold by him to the Company. Ou the counter claim the Jadgmenc "would be for the defeudaut omith. Fall M*tß would be allowed on tae counter claim. l&e Court thea adjourued till 10.30 a.m. tfrOey.