REFUND OF DEPOSIT

Hawera Star, Volume XLVII, 25 June 1928, Page 11

REFUND OF DEPOSIT

CLAIM BEFORE COURT. HOTEL SALE NEGOTIATIONS, PROSPECTIVE, BUYER AND AGENT. The hearing of the claim made by Nicholas Aiurtagh lUcCarthy hotel proprietor- of Wanganui, against- Francis Gordon Tie week, land agent, of Hawera., for the recovery of £ 150 was resumed before Mr R. W. Tate, S.M., in c n-8 Hawera Court to-day. The case had bean partly heart at the

previous sitting of the court, when it was contended in evidence brought in support of the claim that in December of last year defendant, a,si tbe ageut ,ci plaintiff in the prospective purchase ol the Commercial Hotel, Stratford, had 'received Liso as a deposit on the price which plaintiff had offered on certain conditions, which included that the .price should he deemed satisfactory after an inspection of the books. An inspection of the. books was made in January, arid as plaintiff was not satisfied lie demanded tbe return of the deposit. It was also contended by plaintiff that since the commencement of court proceedings defendant had offered to sett 1 © by paying the amount claimed.

For defendant, it was contended that the contract had been fulfilled, and he was entitled to £137 10s as commission, and that he was not trustee on behalf of the purchaser, but was vendor’s agent, and as i&uch he accounted to the vendor. Regarding the offer to settle, it was contended the .intention was that the amourit of ‘the commission should be placed to the credit of plaintiff against charges in respect of possible future transactions on plaintiff’s behalf by defendant. DEFENDANT’S FURTHEREVIDENCE. When the hearing wa s resumed today defendant Treweek, under ci.ossexaminabion by Mr Houstop, said that the hotoi: bad been sold, but lie couid not- state the price. Re-examined by Mr Spratt, defendant stated'; that -after interviewing Mr B. McCarthy in February, he (defendant) went to- Stratford, taking Mr Spratt with him. Tbe books were inspected, and defendant found that tbe average weekly turnover exceeded the average of £125, .shown in the form of authority. Defendant had had considerable exeprience as an hotel broker and a company secretary and accountant. He did not think that the books had been properly examined by plaintiff. The compromise previously referred to had been suggested with the object reaching a, settlement without gping to court. Defendant was convinced in his own mind that he had- completed his contract. It was in liiisi mind that the commission of £137 10s n ight be placed out of the £l5O to the credit of plaintiff against possible future business. It would he necessary to, get the consent of his partner, List, to isnch an agreement. It would not, however, be necessary to obtain List’s consent, to an order on the £SOO held by Bernard! McCarthy’s firm on behalf of the partnership a,si defendant’s ©hare would more than cover the sum involved. Mr Houstin: Then when two men are in partnership one could give an order without the consent of the other?— Decidedly. AVERAGE TAKINGS. William Power, accountant, who. had kept the .books of the hotel for the licensee, H. Bodley, gave evidence that he was interviewed on Ja.nuary 11 by plaintiff and Air B. Mcarthy, and books inspected. These showed that from July 4 to September 30 the average weekly average takings were £llß ss. That was the only period over which he could then supply data, though lie had shown that tbe income tax paid in respect of the hotel business during the previous year had been paid on £6700, this showing a weekly average of £129. Witness later investigated the accounts over a larger period and found that from July 4 to January 11 the average weekly takings were £126 and from January 11 to March 21 it was £1.25, with approximately £3O over. These figures Iliad not been disclosed by witness to plaintiff or to Bernard McCarthy. Recalled, the witness, Bernard McCarthy, said he had not informed defendant at their interview oh January 22 that he (witness) was satisfied with the figures. To Mr Spnatt, witness said he could not recall being told by Air Power that the average for the previous year had been £129. Witness' denied that he had had the bank pay-in book, but from a small ledger book shown witness by the Licensee, witness had worked out the average weekly takings for the Hirst three months from July at about £lls. For the next three months over the new year the average was- about £l2O. Witness 'Understood the book he received from the licensee was the book of takings. Figures for both bar and house were shown. Question as to his notes on the averages worked, out, witness said he 'had not filed the records. There were other features beside® the actual takings which were taken into consideration. As the ledger he viewed contained details of cash transactions only the discrepancy between his reckoning and that given the court by Air Power might possibly be accounted for by book debts.

John Charles Bayly, clerk employed by Treweek, deposed to having been present at an interview between Treweek and Bernard McCarthy in Treweek’is office on December 23, and to having sent a telegram on behalf of Bernard McCarthy to plaintiff at Wanganui. (Proceeding.)