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SUPREME COURT – CIVIL SITTINGS., Issue 7972, 30 July 1889
SUPREME COURT - CIVIL SITTINGS.
Monday, Jitly 29.
(Before His Honor Mr Justice Williams.) St'HMEDES, ErBSLOH, AND CO. V. W. K. Bubbow and Co.—Claim, Lll4 3s 2d, for goods supplied and interest due. Mr F. R. Chapman appeared for plaintiffs ; Sir R. Stout for defendants.
The statement of claim set forth (1) that plaintiffs are merchants carrying on business in London and Auckland, that defendants are merchants carrying on business in Dunedin, and that there is an account current between them ; (2) defendants are indebted to plaintiffs in the sum of LlO5 16s lOd for goods supplied ; (3) that defendants are indebted to plaintiffs in the sum of LS 6s 4d for interest on the account current.
The statement of defence set forth (1) that defendants admitted paragraph 1 of the statement of claim ; (2) also that subject to the set-off and counter claim hereinafter mentioned they are indebted to plaintiffs in the sum of LlO5 16s lOd, as alleged in paragraph 2 of_ the statement of claim; (3) save as herein mentioned they denied all the allegations contained in the statement of claim. And by way of set-off and counter claim defendants said (1) that in 1887 plaintiffs and defendants agreed that the latter should supply to the former the na-nes and addresses of the tanners and curriers who supplied the leather in question, and also give them suggestions in the management of their business as leather merchants, and that plaintiffs in consideration thereof should pay defendants' commission at the rate of 5 per cent, on all such leather sold by plaintiffs in Australia from February, 1888, to February, 1889, and that such commission should not in any event be less than L4O; (2) defendants had performed their part of the said agreement; (3) plaintiffs during the specified time sold large quantities of the said leather, aud were indebted to defendants in a large sum for commission on said sales; (4) defendants had applied to plaintiffs for an account of the said sales, in order to ascertain the sum payable by plaintiffs to defendants, but plaintiffs refused to give any such account to defendants, and had not paid any part of the said commission ; (5) defendants prayed (a) that an account may be taken in order to ascertain the amount payable by plaintiffs to defendants ; (b) that plaintiffs be ordered to pay to defendants the amount found to be payable for such commission; (c) that defendants may have such further relief as shall seem fit to the Court. Plaintiffs' statement of defence to the defendants' forth (1) that plaintiffs denied that they entered into the agreement with defendants as mentioned in paragraph 1 of the counter-claim; (2) the agreement was as follows: it was agreed by plaintiffs that in consideration that defendants would furnish them with the name of the firm which manufactured a certain class of leather known to the parties as East India kip leather, and would communicate with the said firm with the object of obtaining for plaintiffs the best possible terms for the purchase of such leather, plaintiffs should, after adjustment of accounts, pay defendants a commission of 20 per cent, on the net profits made by plaintiffs in their transactions in Australia and New Zealand in selling such leather from February, 18S8, to February, 1889; (3) the amount of commission payable to defendants under the agreement cannot be ascertained without first referring to plaintiffs, who reside in London; (4) defendants have never asked for any account of the said transactions; (5) defendants' claim is prematurely made ; (6) they deny that they are indebted to defendants. Mr Chapman said that the claim was practically admitted, except the amount for interest, and it had been arranged between his learned friend and himself that the question of interest should stand over for the time being, and that meanwhile defendants counter-claim for commission should be gone into. Sir R. Stout, in opening the case in support of defendants' counter-claim, said that the point in dispute was as to whether the agreement was that commission should be charged on the profits of the leather transactions or on the turn-over. His clients said that the commission was to be 5 per cent, on the turn-over; plaintiffs said that it was to be 20 per cent, on the net profits. Evidence was given by Charles Burrow, one of the defendants, to the effect that the agreement made between himself and Mr Nash, representative of plaintiffs' firm, was that the commission should be 5 per cent, on the turn-over, and not less than L4O in any case. William George Lawless, leather merchant, said it was customary in the trade to pay commission on a turn-over; not on profits. His Honor remarked that the latter would be a most inconvenient practice; it would require something like a partnership account between the parties. Thomas Joseph Nash gave his version of the agreement, saying that the commission was to be paid on the net profits, and asserting that he had never promised to pay a lump sum. The claim for interest was next gone into, evidence being given by each party. His Honor said that on the whole he thought that plaintiffs were entitled to the interest charged. As to the defendants' counter claim he had some difficulty, but on the whole thought that defendants' account of the agreement made as to commission was the more probable one. What plaintiffs set up meant really that defendants were to share the profits, and if the agreement was such, and the Court was asked to enforce it, the plaintiffs would be compelled to supply accounts to the Court just as if a dissolution of partnership was in question. He thought that defendants were entitled to an account, as asked for, of the leather transactions, and that should be obtained without difficulty. The question of costs was reserved until the account in question is supplied,
SUPREME COURT – CIVIL SITTINGS., Issue 7972, 30 July 1889
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