Supreme Court.

Evening Post, Volume XXXII, Issue 129, 15 October 1886, Page 2

Supreme Court.

CIVIL SETTINGS. This Day. (Before Mr. Justice Richmond and a jury of four.) MORLEY V. DUNN. This was an action in which Thomas Frederick Morley, of Wellington, sued Walter Dunn, of Roxburgh, Otago, for the recovery of damages for breach of agreement. The case for tho plaintiff was that on tho 11th ot last June the plaintiff and defendant entered into partnership as homoeopathic and dispensing chemists in Wellington for a period of three years as from the Bth of May last. Tho agreement was that tho defendant should have tho sole control of the business, but that both partners should exert themselves equally to promote the business. It was further stipulated that during the threo years neither of the partners should engage in any other branch of business. On tho 11th of August the defendant ceased to take any part in the business, and refused to do anything further under the agreement. The defendant has now taken up his residenco in Roxburgh, Otago, where he is practising as a doctor. Tho plaintiff claimed .£5OO as damages for breach of agreement, or, in the alternative, he asked that the defendant should bo made to perform the contract, ■ and should be restrained from carrying on business for the balance of the three year.", except with the plaintiff. The defendant, in his written statement of defence, alleged that he was induced to enter into partnership by the plaintiff falsely pretending that he was a chemist, and qualified to act as an apothecary and medical ! practitioner. The defendant subsequently ' ascertained that the plaintiff could not 1 legally carry on as a medical praotitioner and apothecary, whereupon the agreement was void, and convoyed no rights in any Court. The defendant further pleaded , that the stipulation that neither party should engage in any other business was a restriction of trade, and was therefore void. Mr. R. N. Cowan was chosen foreman of the jury. M.r. Skerrett appeared for the plaintiff, and Mr. Jellicoe for the defendant. ! The plaintiff deposed that he was a hoinoeopathiat, and on the 11th of June, he ' entered into partnership with Dr. Dunn, who had previously been in Hastings, Uawkes Bay. The agreement was that they were to be in partnership for three years, and that they were to divide the profits [ and expenses. On the 11th August Dr. 1 Dunn went out of the business, saying that ' he would get .£l5O a year from the lodges in I Roxburgh and. about JB6OO by private practice in that township, as there was not then a doctor within 50 miles of Roxburgh. Witness remonstrated with the defendant about leaving for the South, and Dr. Dunn said he would soon squash the agreement. During the time they were in partnership accounts amounting , to £65 were booked, in addition to which there were some cash takings. For a new business this was a satisfactory result, and Dr. Dunn appeared to be satisfied with it. j By Mr. Jellicoe— Witness induced Dr. [• Dunn to come from Hastings. Witness had I been practising in Wellington as a homoeot pathjst for about 2£ years, He had had some medical experience, He gained his '. experience under Dr. Irvine at Nelson. I About two years ago he went through the Bankruptcy Court. About that time there j was a confectionery business on Lambtonquay which was carried on in his name. Dr. Dunn was aware of that fact, also of the fact that witness had been insolvent. Before he became insolvent he was in Auckland, where he practised as a homceopa^hist for about 12 months. He then came to Wellington as agent for a biscuit factory (Bycroft's). Prior to going to Auckland he was in Dunedin, where he also practised as a homceopathist. When he first came to , Wellington he was traveller for Mr. A. Lindsay, boot manufacturer. Subsequently ' he entered the service of two other boot manufacturers. He sometimes visited Dr. Dunn's \ pationts, and when he did so he prescribed ' homoeopathy. Dr. Dunn was appointed surgeon of a lodge of the British United : Order of Oddfellows, of which witness was a member. He would swear that he did not | sign Dr. Dunn's game to ft lodge certificate. He was not expelled from the lodge. He could not be expelled, because he was never a proper member, as Dr. Dunn swore he had never examined him. Dr. Dunn received £Q or £7 in cash during the time they were in partnership. Witness did not know that it had cost Dr. Dunn .£l2 to get the £6 or £7. Witness was prepared to attend any sort of a case except a surgical case. By Mr. Skerrett — He neyer told Dr. Dunn that he was a registered chemist. He believed that Dr. Dunn, before entering into partnership, made enquiries as to his character. He told Dr. Dunn about his bankruptcy. This closed the case for the plaintiff. Mr. Jellicoe, for the defence, contended that the business carried on by the plaintiff was unlawful, inasmuch as the plaintiff was not qnalified to act as a medical practitioner, and therefore the agreement was contrary to the policy of the law. Mr. Skerrett submitted that any person could carry on the business of a medical practitioner so long as he did not pretend that he was a registered practitioner. His Honour' said he was ot opinion that the agreement was invalid under the 23rd section of the Pharmacy Act. The parties agreed to become partners, and carry on the business of medical practitioners. It appeared to him that by the agreement Dr, Dunn undertook to assist Mr. Morley in carrying on the business, while on the other hand Mr. Morley undertook to assist Dr. Dunn. It was submitted that Mr. Morley eonld act as a medical practitioner so long as he did not pretend that he was registered. He (Mr. Justice Richmond) was not disposed to accept that contention. The contract was that both parties should hold themselves out to be medical practitioners and general dispensing chemists, and it was assumed that Mr. Mfjrley was a qualified medical practitioner. Until Mr. Morley became a registered practitioner it could not be held that he could legally carry on the business of a practitioner, and for that reason he must be nonsuited. Leave to appeal would be given. Mr. Jellicoe said he would take costs on the lowest scale. Mr. Skerrett explained that bis client had come into Court because b$ considered he had been badly treated by Dr. Dnnn. Mr. Jellicoe said that Dr. Dunn considered he had been badly treated.