SUPREME COURT. —Wednesday. CIVIL BUSINESS. [Before his Honor Sir G. A. Arney.]
The civil business of_ the Supreme Court commenced this morning at eleven o'clock, at which time his Honor took )va sent on the bench. * Tho cause Henry Eoberfc Russell v. George Perkin, for alleged damage to a bull during transhipment in Auckland harbour, was iixed to be oalled on to-mor-row, at ten o'clock A special jury has been summoned. Mr. Whitaker appears for tho appellant, and Mr. Gillies for the respondent. Tho < remaining special jury cases were also fixed for Friday week, viz., Ilenry Lowson Brewer v. Itobeit James Creighton; and Alexander Mill v. John Carsley Morriti and William Baker, The Jurors and witnesses in tho cases were liboialed until that day. Tho cause John MoLood v. Wra. Viokery and Thomas Taylor Masefield was fixed for Tuesday, on the application of Mr. Gillies, who appeared for plaintiff, and Mr, Brookfield for defendants. WILLIAM WUNTER AND GEORGE DENNETT Y. PETER STOIUUEK MACKENZIE. Mr. JBiookfiold appeared for plaintiff in this causo, and Mr. Weston for defendant. A com moil jury having beon sworn, Mr. Brookfield stated that his learned fiicnd, Mr. Woston, the counsel for defendant, confessed judgment for the amount olaimed, £72 ss. Ctl. Tho jury returned a veulict accordingly. HECTOR ALEXANDER DRAKE Y. IiEORGE FRIEND AND OTHERS. Mr. Brookfield appeared for plaintiff, and Mr. Wyuu for defendant. The following issues wero proposed by the plaiutifTs :—: — Tho plaintiff alleges, and the defendants deny — 1. That the defendants are members of a society called the Auckland Club. 2. That, in consideration that the plaintiff would enter into tho servico of tho defendants and of tho other membeis of tho said Auckland Club, for tho term of six months from tho 22nd day of July, 1863, in the capacity of secretaiy and manager, at the wages of £60 for tho said six months ; tho defendants, for themselves and on behalf of the other membeis of tho said club, promised the plaintiff to retain him in the said servico during tho said six mouths in tho capacity and on the terms for tho term aforesaid, 3. That the defendants, for themselves and on behalf of the other members of the said club, did, at the time of their to making the promise hereinbefore alleged, further promise the plaintiff that in the event of the said Auckland Club flourishing and increasing in its intended capacity after the said 22nd day of July, and during the time the plaintiff should be seiving as aforesaid, he, the said plaintiff should continue in the service of the said defendants and of tho other members of the said club for the further term of six months, and to on for f uither terms of six months, iiutil he be lawfully discharged, and be paid an increase of salniy. 4. That the plaintiff enteied into the said sci vice in tho capacity aud on the terms aforesaid, and so continued thbiein fora poiiod over and , above the said term of six mouths, to wit, for the term of one year aud one month or theieabouts. 5. That tho said Auckland Club did flourish and iuciease after the said 22nd day of July for the futthor space of six months G. That on or about the 22nd day of January, ISO J, the defendants, for themselves, and for and on behalf of the other members of the said club, promised to the plaintiff that, in consideration the plaintiff would serve the dcfendenls and the other membeis of the said club for one year, from the said 22nd day of January, in the capacity aforesaid, he, tho plaintiff, should receive and be paid tho sum of JBI2O per annum. 7. That in the consideration of the last-mentioned promise, the plaintiff so continued to serve the defeudants and the other merabeis of the said Club in the capacity aforesaid, until the bieacli of tho said promise. S. That the plaintiff was always ready and willing to continue m the said service during the lemainder of the said year, whereof the defendants and the other members of the said Club always had due notice. 9. That the defendants on behalf of the other members of the said Club, befmo the expiration of the said year, wrongfully dismissed the plaintiff from the said service, and refused to retain the plaintiff theiein for the lemaiiuler of the said year. 10. The defendants allege, and the plaintiff denies, that, before the action bi ought, the defendants paid to the plaintiff, and the plaintiff received and accepted the sum of £150, in full satisfaction aud discharge. Mr. Biookfield, in openm" the case to the jury, said the main question would turn upon the pomt — aye or nay — had the plaintift received a sum of money in full satisfaction and in dischaigo of his claim ? The circumstances of the case might bo simply stated : That on the 22nd of July, 1563, the plaintiff was engaged as secretaty aud manager of the Auckland Club for a teim of six months, at a salary of £60 ; with an arrangement that if tho affairs of tlip ciub flouiished the plaintiff should continue in "tlie service of tlie club. He liatl continued in the employment of the club for the six mouths, and nothing having been said he continued so engaged until after the expiration of the first year. At the expiry of that penod, he still continued employed as secietaiy and manager without anything being said about payment, increase of wages, or dissatisfaction, but was allowed to go on with his duties until some ten or fourteen days had elapsed in the second year. The plaintiff then received notice that his services were no longer required ; and, if a common expiession might bo used, he was "kicked out" of tho place. In consequence o£ such treatment the plaintiff not only felt somewhat aggiieved and demanded payment of his wages, but also something for wrongful dismissal. In reply to such an application made by him ho received a letter from the defendants, dated the Sth of August, 18G4, and signed by threo of the defendants. Enclosed iv the letter was a cheque for £150, iutended as payment of Mr. Diake's salary for twelve months, and three months' salaiyin lieu of notice for that period. Tho payment of £30 iv lieu of three mouths' notice plainly indicated that tho defendants considered him entitled to notice befoip dismissal ; but he (Mr. B.) contended that plaintiff was not only entitled to tluee months' notice, but to six months' notice, or six months' payment of salary ; that he was entitled to the sum of £90. Upon that letter of dismissal his learned friend would no doubt base his defenco that tho sum of £150 was paid and received in full payment of all demands ; but the letter forwarded by plaintiff would prove that ho acknowledged the receipt of the sums on account of his salary only, and not in full payment. The rules of the club were put in and read, also copies of letters which had passed between plaintiff and defendants. Evidence was then taken as follows : — Hector Alexander Drake deposed : I am plaintiff iv this action, and remember being engaged to act in the service of the Auckland Club. That was on the 22nd July, 1803. I was engaged for six months, at a salary of £60. By Mr. Wynn : Tho contract was in writing. It was signed by two members. By Mr. Biookfield : No contract wai signed by me. The engagement I entered into was that I should receive] £60 for six months' service j and if, after those six months, the club was found to bo iv better circumstances, tho engagement should be continued. The engagement was first proposed to me by Dr. Dalliston, who was at that time a member of the club. The arrangement was fiist entered into by Dr. Dalliston, and I afterwards saw Friend and Williamson, two of tho defendants. I had no conversation at that time with the defendants. To tho best of my recollection, I afterwards saw the defendants in the club. I told them that Dr. Dalliston had said tome, "Will you become secretary to the club?" and I had answeied, " Yes." I made no mention of the terms which Dr. Dalliston had proposed. This occurred before I actually entered on the servico. I believe I asked them whether they agreed to my being appointed secietary. I had another interview with tho same parties on a subsequent occasion, on the 22nd July, 1863, I had told them on a former occasion that I wished to have a written authority from them of my engagement. It wai on that occasion that the letter produced was written :—": — " Auckland Club, 22ud July, 1883.— H. A. Drake, Esq.— Sir, wo beg to inform you that at a general meeting held yesterday you were appointed general manager and secretary of this club, and we beg that you will assume your duties as quickly as possible. — James Williamson, George Friend." I then entered upon my duties as clerk and manager, I had no conversation with the defendants as to tho terms of the engagement until I was about to leave. I remained in the service of the club until tho Ist of August, 18G4— a year and ton days after my fiist engagement. During the whole of that time the defendants weie inembois of the committee ; but I believe Dr. Dalliston was not a member of tho managing committoe, although a member of the club. I did not leceivo any payment of salary during my cngagment. I svns summarily dismissed on tho first of August by Mr. Campbell, 'Mr, ITarrUon, aud Mr, Friend. They assigned no oiwso at that time, but simply told me to go, Th»y wore at) that tiwo rn.emb.eri3 of tho
Managing Comtmtteo, They saut for ma to a room in the Club-house. Mr, Hai rison asked mo if it was true that I had shown a repoit of the general meeting to any person who was not a member of the club, aud I said " Yes." JJe then told me that I would bo required to leave that day week. They were sittiug at a table, and Mr. Harrison acted as spokesman. I wished to know why I had been so summarily dismissed j and also said that I did not think I could procure a house within that time. I was residing in the Club-house at that time with my wife. I left the club on the Ist of August; tho conversation which 1 have narrated having taken place oiii the 25th July. On the Ist of August I had a conversation with the defendants about the terras of my ongagemont. They were presont in tho room. I told them that Dr. DalliBton had told me I should receive £60 for six months' salary, and at the expiration of another six months I was to receive a fair remuneration for my services, provided the aff.iirs of the Club were in a better position than they were in July, 1863. Mr. Friend said their agreement with Dr. Dalliston was that I should receive £120 a year, and which was confirmed by Mr. Williamson. They offered me £150 for one year's service, and three months' salary in lieu of notico. I did not accept that offer. At a later period of tho same day I left the Club. The Club did not become very flourishing, but theie was a oousidorablo improvement whilst I was employed by the club. On the Bth of August, I received a letter enclosing a choque for £160. The letter was worded as follows :— " The Committee of the Management of the Aucklaud Club enclose herewith £150 (one hundred aud fifty pounds), in full liquidation of Mr. Drake's salary for one year, at the rate of £120 (one hundred aud twouty pounds), aud three months' salary at tho same rate, in lieu of notico for that period.— F. E. Campbell, J. H. Habkison, George Friend, James Williamson." T kept the cheque, but did not accept it in full payment of all claims. I sent a reply to the letter, and of which I have a copy :— "Wynyaid-street, Grafton Road, 9th August, 1564— 1 beg to acknowledge receipt of cheque for £150, on account of my claim for salaij', but not in respect of full liquidation theieof. J shall at ouce take proceedings for the payment of the remainder due to me. — I have, &c , 11. A, Duake." I have not lecoived any further sum of money, and I now claim £90 for the lesidue of salary. Cross-examined by Mr. Wynn : I have endeavoured to obtain a settlement of my claim. Dr. Dalliston was a personal fiieud of mine. I have not the cheque in my pocket. I cashed it at tho bank. Messrs. Campbell, Harrison, and Fiiend were piesent on the 25th July. Mr. Williamson, I believe, was not present. The arrangement made was that I araa to receive £60 certain for six months. I undei stood if the club were to be broken up I should be dismissed. It was not flourishing when I left ; but it had impioved, and was impioving daily. In the report drawn up by the three gentlemen for the general meeting thcie were many complaints. They wore very unaccountable complaints. I showed the report to Mr. Jackson, the holicitor, aud he mentioned tho chenmstanoo to Mr. Campbell. Re examiuod by Mr. Brookfield : The club was in a better financial condition during my management than when I fiist took the situation. This was tho plaintiff's case. Mr. Wynn addressed tho jury for the defendants, and contended that there were nothing in the hiring which would ontitlc the plaintiff to any notico. There was no responsibility upon the defendants to give such notice, and tho hiring had not been a yeaily one ; but, ou tho other hand, if there had been a yearly engagement, no damage had been proved. The hiring had been for a specific peiiod, and tho engagement was terminable or lenewablo at the pleasure of the defendants. On tho day of his dismissal only, the plaintiff had stated to the defendants what weie the terms of his arrangement with Dr. Dallibton, who, it must be reinerabeied, was not a member of the managing committee. Ho would call evidence to show that Mr. Drake had never been hired on a yearly engagement, but that tho arrangemeut was for six months. John Sangsfcer Macfarlane said : lam a merchant, residing in Auckland, and a member of the Auckland Club. 1 know the plaintiff. He was residing at the club, and acting ns secretary. I was a member of the club at the time the plaintiff was lirat appointed. I know Dr. Dalliston. Ho frequently called upon me, with the plaintiff, for the put pose of seeming my inteiest to have the plaintiff appointed manager of tho club. At the time of Mr. Drake's appointment the club owed £500 or £COO, but we had sufficient assets to cover that. At the time of his dismissal there was a debt of about ■CSOO, and it was proposed that a ceitaiu. number of members would put down £100 each in order that it might bo* carried on. Mr. Drake proposed to put £100 down himself. An investigation of the accounts then took place, and Mr. Drake was dismissed. A report was made, and which led me to the oi)iuion that a larger business was being done ; but as a large sura of money was lequired it was detenniued not to carry ou the club under the existing system of management. A change of management was lecommencled. Cross-examined by Mr. Brookfield ■ I cannot state exactly when the leport was made ; thero were so many meetings and conversations. It would be about thiee or four months befoie the dismissal when the pioposition was made for a few members to subscribe £100 each. The proposition to advauce £100 each was not reduced to writing. I adopted Mr. Drake's ideas, and wished the proposition to be can led away. Mr. Drake proposed that hid salary should be £200 a year from the commencement of August, 18G3. I a«reed to that proposal. The document produced was signed by me. It is to the effect that the salary of the secretary sbonld be £200 a year from August, There are other proposed resolutions on tho document — that if £I,OOC could not be raised the club should be dissolved. (Document read.) John Harris Rodgers Harrison said : I lesido in Auckland, and am a member of the Auckland Clab. I recollect the plaintiff being secretary of tho clnb. I took part in an investigation of tho affaiisof the club shortly before Mr. Drake left. At that time the affairs wcte in a very unsatisfactory condition. The result of the investigation was that Mr. Drake was dismissed. This was the case for the defendant. Mr. Brookfield replied at some length upon the evidence, and quoted a'case from Smith's " Law of Master and Servauts" in support of the engagement entered into between plaintiff and defendants. His Honor summed up very carefully, and the jury retired to consider their verdict. After an absence of half-an-hour, they returned to Court with a verdict in favour of the plaintiff for £30. DONALD MCINNIS Y. DANIEL SULLIVAN. Messis. Whitaker and Russell appeared for the plaintiff. Tho defendant did not appear, and was not represented. Ihe aotion was brought by the plaintiff, a shipbuilder, residing in Auckland, to recover the balauce of £672 45., alleged to be due by the defendant, a manner, living at Dunedin, for a schooner which the former had built for him, in terms of a written agreement. Mr. Whitaker stated that the issues which the jury had to try were : — First, whether the parties had entered into an agreement in writing, in accordance with the contract set out in the declaration ; second, if the plaintiff built a vessel of the dimensions agreed to in the contract set forth in the declaration j third, what amount the plaiutiff was to have received ; and fourth, whether the plaintiff supplied additional work to what was stated in the contracts, figure-head, &c, and whether the prices charged weie fair and reasonable, amounting to £1,372 4s. Donald MoTnniss deposed : I am a shipbuilder, residing in Freeman's Bay. The defendant resided in Dunedin. In November, 1563, I entered into a written agieement with him to build a schooner. (Memorandum of agreement handed in and read ) I built and completed the vessel accoiding to the conditions, aud handed her over to the defendant. I was to be paid £8 15s. per ton. She was 100 tons burthen, which made the amount £1,355. There were extra articles supplied, which made tho total of £1,372 4s. I received £700 on account, which leaves a balance o£ £672 4s. still due. This was the only evidence submitted. •His Honor directed tho jury to find their verdict on the issue set forth, which had not been disproved, for the balance claimed, which they accordingly did. The Court rose at 12 minutes to 5 o'clock, and was adjourned until 10 o'clock to-day.
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SUPREME COURT.—Wednesday. CIVIL BUSINESS. [Before his Honor Sir G. A. Arney.], Daily Southern Cross, Volume XXI, Issue 2466, 15 June 1865
SUPREME COURT.—Wednesday. CIVIL BUSINESS. [Before his Honor Sir G. A. Arney.] Daily Southern Cross, Volume XXI, Issue 2466, 15 June 1865
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