NEW SOUTH WALES. SUPREME COURT -April 20.

Daily Southern Cross, Volume XIV, Issue 1030, 12 May 1857, Page 3

NEW SOUTH WALES. SUPREME COURT -April 20.

(Before Mr. Justice Dickinson and a special jury of twelve.) J. S. M'Fa»lanb v. Mcrnin. This was >n action brought against the defendant, in his capacity as the plaintiffs general agent, for the anamanagemdnt of the plaintiff's affair*.

Mr. Martin and Mr. " W indeyer appeared for the plaintiff; the Solicitor- General and Mr. Wise, for the defendant. . , The declaration contained six counts, alleging tnat the defendant bail been retained as the plaintiff's general mercantile agent in Sydney, to buy and sell goods, to receive moneys and deposit the same to the plaintitt s credit in the English, Scottish, and Australian Char s tered Bank ; to pay moneys, bills, orders, and debts, for the plaintiff, whenever the defendant should be proyided with sufficient funds or goods ot the plaintiff's for that purpose, and generally to look after and pjotect the interest and credit ot the plaintiff. The breaches alleged were that though the plaintiff provided the defendant with money to pay certain notes and bills, and though the defendant in his accounts charged the plaintiff with the full amounts of the said bills, yet the defendant did not apply such money to those purposes, but retained it to his own use. 2ndly. That though the defendant received mone)'s from divers persons at different times for and on behalf of the plaintiff, which he ought to have paid into the bank to his credit, yet the defendant did not do so, whereby the plaintiff was greatly injured in his credit and reputation. 3rdly. That though the defendant received from the plaintiff goods which he ought to have sold within a reasonable time, yet the defendant did not tlo so, but retained them for three months, and iailed in applying the proceeds to the payment of tertain debts owing by the plaintiff. The second count stated that the plaintiff retained the defendant as hi» agent to retire certain bills drawn by the plaintiff when and as they became due, provided that the plaintiff should supply the defendant with goods and moneys for the purpose ; that the defendant promised so to do, and that the plaintiff supplied the defendant with sufficient funds for the purpose ; but that the defendant failed to keep his promise, and purchased the said bills for much less than their value, by representing the plaintiff to be in embarrassed circumstances. The third, fourth, and fifth were common indebitat-us assumpsit counts. The sixth count was for slander, and alleged that the defendant slandered the plaintiff's credit by telling the holders of his notes that the defendant had no funds in hand to meet them ; that the plaintiff owed him a large balance, and that he. the defendant, had great doubts whether the plaintiff could meet all his liabilities. To this declaration the defendant pleaded two-and-twenty pleas, traversing every allegation m the declaration. The plaintiff was a merchant trading between Sydney and Auckland, the defendent a Sydney merchant, well known in the mercantile community. In August, 1854, the defendant purchased from the plaintiff a third share in the Heather Bell, trading between Sydney and Auckland. Shortly after the purchase an agreement was entered into between the plaintiff and the defendant to the effect that the plaintiff should act as the agent for ; the vessel at Auckland, the defendant as agent in Sydney ; a written memorandum being made to that effect. Shortly after this arrangement, the plaintiff in his evidence stated that he entered into further arrangements with the defendant, by which the defendant agreed to retire all the plaintiff's bills as they became due, for a commission of 2§ per cent.; the plaintiff also stated that he at the time gnve the defenJant a list of his liabilities then outstanding. This second agreement the defendant positively denied ever having entered into, and tiatly contradicted all the plaintiff's evidence on this point as well as his assertion with regard to the list of liabilities. Soon after this alleged arrangement the plaintiff sailed for New Zealand, and whilst there remitted the defendant money to meet his engagements in Sydnty, as also fifteen tons of oil, which he directed to be sold for the same purpose. The oil was kept for three months before it was sold, and there was evidence on the part of the plaintiff to show that the oil had wasted very much through being exposed to the sun and want of cooperage. On the part of the defendant, evidence was given to show that he had acted for the best in keeping the oil, the market having previously been low, and that he did offer it at Mort's, but withdrew it on account of the price offered not being so high as he thought the pla!ntiff expected him to get foi it by a letter which was in evidence on the point. Theie was a great mass of correspondence put in evidence by the plaintiff, in order 10 show that the defendant had not made any objection to the account current furnished him by the defendant, and that there had uevei been any such agreements entered into between them as alleged in the fiist and second count? of the declaration. The plaintiff insisted that from September and December, 1851, the defendant had ahtivs been in funds to meet hi-, notes :is they became due had the defendant not debited him the different amounts complained of in the account, as if he had actually paid them in cash, whereas he had, it appeared, gi\pn his own notes for them at three months, thus making the plaintiff appear in his debt whilst he was actually iv his credit. There were five items of this nature. The first item in *he accounts which the plaintiff contended ought not to have been charged against him was one of £289, the amount of certain freight and passage money, the proceeds of a -voyage made by the Heather Bell, in which the defendant held a third share with the plaintiff and the captain. It appeared that the vessel left Sydney with the above freight, but on her return, did not b"i ing it with her, it having been absorbed by repairs effected upon the vessel at New Zealand. However, the whole amount of the freight was immediately debited to the plaintiff, who now contended he ought only to have been debited with his third share. The next item was one of £1300, the amount of two bills drawn by the defendant at Sydney, ci one Salmon, the plaintiff's partner in New Zealand in favour of the plaintiff; these bills were not paid by Salmon, but were accepted by one Platt, for the defendant's honour, who on hearing that they had not been paid, immediately debited the plaintiff with them. He at the time wrote to the defendant. The plaintiff objected to his being debited with this until the bills were dishonoured. The defendant also on hearing that the bills were not paid did not pay into English, Scottish, and Australian Chartered Bank, a sum of £1000, which had been sent by the plaintiff from New Zealand for the purpose of meeting his notes as they fell due. For this defendant gave two reasons— first, that it hnd been agreed between him and the plaintiff that he should consult with one Browning whether it would be advisable to pay this money into the bank, and that on consultation with him they agreed it would be best not to pay it, as it would be taken by the bank to pay certain bills which were then due ; and, moreover, he thought he had a right to protect himself against the £1300 bills by impounding this £1000. The next item was one of £605, charged by the defendant to the plaintiff's account for goods supplied by him to the plaintiff. It appeared from the evidence, that the defendant had bought these goods in Sydney upon three months' credit, giving at the same time his own notes for them, but had debited the plaintiff with the amount immediately upon the goods being sent to him ; and the plaintiff now contended that thedefendant bought as his agent, for commission, and that whatever credit the delendant obtained ought to be allowed him. Two bills also, amounting to £540, due respectively, one on the lsth December, the other on the 12th January, held by one Webster, had been bought by the defendant on the 3rd November, at a discount of two and a-half per cent. These bills were debited to the defendant, on the 3rd November, and a similar objection was taken to this as had been taken with regard to the date of the other items charged in the account. Two bills of £365 each held by Smith, Campbell, & Co., one due on the other on the 14th January, were also bought by the defendant, the one on the 14th December, the o her on the 6th January, with his note c less a discount for the first of five per cent., the second of ten per cent. To this transaction the same objection was made that they ought not to have been charged to the plaintiff as if paid in cash. His Honor directed the jury that unless they saw some thing in the actions of the parties from which they could infer it, there was no evidence of any such agreement as alleged in the first count of the declaration, and sought to be established by the written agreement in evidence. His Honor then went through the accounts showing what money had been received by the defendant in 1854, and said it appeared to him that the defendant was in'fuuds to meet all the bills due before January 1, 1855. As to the item of £289, he thought it ought not to have been charged to the plaintiff's account. He could not see how it was a debt specifically owing to the defendant; certainly it was not such in point of law, as it arose out of a partnership transaction; the defendant could have uo moie light to charge him with the whole amount than he could h?ve to charge the third partner with it. With regard to the £1300, his Honor said ;t; t was not "a debt then due, but glowing due, that it was no part of the defendant's duty to pay bills before they came due, and that as the £1300 was not due when he charged it to the plaintiff's account it ought to be struck out. As to the item of £603 for goods supplied by the defendant to the plaintiff it was not chargeable to the plaintiff's account till the defendant was called on to pay, and therefore it also ought to be struck out. His Honor also said that there was no disguise used in the accounts or any false account of any transaction to sustain a charge of fraud, but that the defendant had in these transactions merely exercised a wrong judgment. With regard to the other items, his Honor ruled in * limi

lar wny tlut if the defendant paid by his own notes it Wa» nol a payment in cash, and he had no busine«» to charge the plaintiff at the time he gave his notes as if he hud paid in cash. Alter retiring for five hours, the jury returned a verdict for the defendant on the blander and certain other count*. ; for the plaintiff on other issues. Damages £3428.