R.M. COURT

Marlborough Daily Times, Volume X, Issue 314, 21 July 1888, Page 2

R.M. COURT

Before J. Alien Es p, R. M,

Friday, July 20

D. J. T. Creech v. Chas Avis, a claim of LSO. Mr M’Galium (instructed by Mr Sinclair) for plaintiff. Mr Me’Nab (instructed by Mr Gully of Wellington) for defendant.

Mr M’Callum asked for an adjournment till momlay next, as Mr Sinclair was absent in Wellington. Mr M’Nab objected. He had no intimation to adjourn, and his client had come from Wellington, and was present in Court.

His Worship pointed out that the case had originally been an application for evidence to be taken in Wellington, but this had not been applied for until “the ninth hour,” Mr M'Calhnn said that his side had adjourned previously for the convenience of the defence. He asked that the costs should be made “ cosrs in the cause.”

An argument then ensued between counsel on the question of costs, and liis Worship decided to hear the evidence of the defendant.

Charles Avis, who stated that he came from Island Bay on Wednesday last. The return ticket to Welling! on was 30s. He had lost about three days, and being a laboring man ola’med Ss per day. His Worship : Why did you not make your app r cation to have you • evidence taken before tho 27th ? You received the summons on 21st, and thus six days have elapsed. The case was set down for hearng on tho 29th. Witness replied that ho put the case in tlio bands of Mr Gully at onoo. His Worship decided to allow Ll Is (3 days labor), steamer fare, Ll 10s , and professional fee of L2 2s. Tbo costs had been allowed to the other side, and therefore lie would allow it to the defendant. Mr M’Callum said he was wil’hig that that course should be adopted. His Worship remarked on the length of time that had elapsed between the service of tho summons and the application for taking of evidence. He did not think it was any fault of the defendant’s. A lawyer shou’d have known better, and ought to have made tho aoplication earlier. Mr M’Nab said he had nothing to do with that He had only lately been instructed by Mr Gu’ly. His Worship said he was quite aware of that fact, but still, he thought it was best to make mention of it. C. J. W. Gciffichs v S. P. M’Nab, a judgment summons claim of L 26 19s 6d. Mr Conolly (instructed by Mr Rogers) appeared for pla’ntiff. Defendant conducted liis own caso, and expla’oed to His Worship that plaintiff owed h :, n a sum amounting to more than the amount c’a’med. The sum referred to was professional fees in the case of Regina v Griffiths, heard some time ago. Mr M’Nab said he had been in doubt as to whether these fees were recove able m New Zealand. Ho had obtained advice on the matter, and had acertained that he could recover them. Mr Griffiths said that was the first be had heard of the contra account. Defendant bad promised week after week to pay, but he bad never done so. Mr M’Nab said he was wi'ling to the order being mr.de, but he would like to go to taxation on it at ono. Mr Griffiths was astoundedat, this, and considered it was some legal dodge of M • M’Nab’s. Ho had never heard of anything whatever of tho contra account.

Mr M‘Nab said there was no “ ,’evnl dodge ” about it. lie did not know until lately that ho could recover the fees.

His Worship said he could not t:. -3 the contra account into consideration, at present, Sir Griffiths nointed out that Mr 31‘lNab bad paid L lO on account.

His Worshm therefore made an t rder for the payment of the balance. Ll.fi !0s C.i , within one month from date ::: default, one month’s imprisonment in Picton gaol. .Mr M'Xnb : Now, Mr Griffiths, vd’ l you consent to go to taxation to-moirr.fr? Mr Griffiths : J. have got nothing tc do with vou, and I don’t want to. Mr*M‘Nab : All right. T. Smale v. Thomas Brimne", a eliim

of Lo 10s Gd for ba’ance of account for goods supplied.—No appearance o: dt.’i ndact.—Judgment by default for plaintiff for .amount claimed, and 11s costs. Charles Harp and Co. v. J. Harris, a

cVm of Ll 17s Gd for goods supplied.— No appearance of defendant. —Judgment by default for plaint! If for amount claimed a id Gs costs.

T. Stnalo v. George Armstrong, a claim of Lo 19s Gd on a judgmeut summons. Pi'v’utitf stated that ho believed the defer daut had been in constant work since judgment had been obtained against b : .n Ho be’icicd he had a contract for L'l 2, and as red that an order be made f >v payment of the account. Defendant denied that bo h’dacoa tract. He said that when judgment was obtained against him, the judgment summons was taken out against Idm oa’y a day after, and thus only a day bad elapsed. Mr Sraale had not tried, to make any ar-l’i-ngemeuts with him.

Plaintiff said he thought the coniraot was in Ids wife’s name.

Defendant admitted this, but said that he had got nothing to do with it. If ho gave Mr Simile an order on the contract it would not be recognised. His Worship said he could not take into consideration that fact. IPs wifo did not do the work, even although the coutract was in her name, if the Goiut accepted such statements a man would never bo able to get his debts through the agency of the Court. Defendant said he bad had contract work during the last fortnight. Ho had a wife aud seveu children to support, and it was very doubtful if aujtbmg would be made out of the contract.

His Worship said In would refuse to grant the order this morning, but advised the defendant, if he was .a wise man, to come to some arrangements with Mr Smale. Of course plaintiff could bring the case on at some future date. Defendant would have to come to some agreement, or he would find lnmself iu gaol

Defendant said ho would do liis best, but he did not think there would b» much money left after all expenses in connection with the contract had been paid. D. 11. Pattie r. George Cleghorn, a claim of Ll 00 for alleged breakago of coniraot, which defendant entered into with plaintiff for collecting b : s (defendant’s) accounts.

Mr M’Ca’lum appoared for plaintiff, Mr MMntiro for defendant.

Mr M’Callum hav’ng opened the case for the plaintiff, David H. Pattie, commiss'on agent, Blenheim, said that about December, ISBG, he entered into a contract with Dr Cleghorn to collect accounts amounting to about L3OOO, Defendant carao to wituoss about the matter, and they made out a list (produced) showing the amoum.s to be collected. The debts were estimated to produce LISOO to L'2ooo. No contract was made oxcept as to commission. Defendant gave witness the sole right to collect the accounts. He shuply appointed witness as his agent. He wai to allow por cent for the first LSOO, per cent for the second LoOO, 10 per cent for the third LoOO, lo per cent for tho fourth LoOO, and above that it was to bo up to 30 per cent.. Of course they did not expect to get more than LISOO c - L2OOO. The contract was made with Dr Cleghorn, not with Cieglioui and Porter. Nothing was said at tho time the contract was made about suing, but witness understood that as it was taken at such a low per centavo, he would have full power to sue. Witness went on collecting for about two years, and ho did not hear anything about suing until Dr Cleghorn got a circular printed (produced), intimating that lie intended to suo. Witness paid the money over to Dr Cleghorn periodically. Ha had now cillected about LIOOO, including bills. Defendant complaiuod about the length of time witness was taking to collect tho accounts, and wi>ness advised him strongly to sue, or lie would not be able to recover a large amount of them. Witness then told defendant that if tho agency was taken out of h ! s hands ho would expect compensation. Would not have taken the contract if ho liad not known that ho wool 1 bo allowed to sue. Ton per cent was about the commission allowed for collecting debts, If witness lnd been allowed to sue, he would have got iu about L2OOO. He reckoned his LIOJ loss in two ways: if be bail not beeu allowed to sue he wou'd have charged 10 per cent on the firnt lot of accounts ; also, if ho had been allowed to sue, ho expected to have got LSOO or LIOOO more -LSOO at 10 per cent, and another LSOO at per cent. To Mr MHutire: Was to get 2lt per cent on the first LoOO collected. If I bad not been allowed to sue I would have charged 10 per cent on tho first LIOOO, and 15 per cent on the second LIOOO. I collected about LIOOO. L 985 15s lOd was handed over to Dr Cleghorn. L 271 10s passed though my own bands into Dr C’cghorn’s hands. There were also L 195 worth of bills. I got commission on tho whole account, with the exception of L 195 on bills. Rem mber a payment of Ll sby Dr Cleghorn to me. Do not remember the circumstances, but think tho matter was settled afterwards. Am pretty well certain that it was accounted for. The money was not un obligation, but I believe it was due at the time. It is not customary for agents to receive their c unmission before it is accounted for, but this affair was quite a d’fferent one. The money was owing to mo at the time. I admit thoroughly that I had plenty of time allowed to collect the accounts, with the exception that I ought to have been allowed to sue. If that bad been done, all the accounts would probably have been in by this time. I understood by the circular that I would have tho privilege of sueing. Would not have entered into the contract if I had known that I wou'd not be allowed to suo. It was moro than six months before anything was mentioned about sueing. There was no list of parties made out to suo. Remembered coming to Dr Cleghorn and saying, “ I can do nothing more without suing.” Do not remember Dr Cleghorn thinking the list made out for sueing was made with bad judgment. W r rote a letter to Dr Cleghorn, stating that I Intonded to go round again in company with Mr Barleyman. The circumstances that led up to mj writing that letter (produced) was the fact of Dr Cleghorn coming to me and saying that I should force some of them to pav. The letter was dated Gt’n January, IsSS. Did not then have a list made out of those persons who I thought should be sued. A letter dated June last was also put in. It was to the effect that I would again try to force the money from the parties mentioned. Do not remember an arrangement made with Dr Cleghorn at tbs beginning of this year chat ho > lould take overall the accounts, but I do remember it being mentioned “ If t was n it j allowed to sue.” There was neve • any j arrangement made lor the accounts being [ taken out of my bands. Mr H’.zlett | never waited on me for that purpose. I | deny that an agreement was made with j

Dr Clegiiorn f or the accounts wing 1 handed over to him. Mr Hazlet* oi ’y J called on me casually, and I did no' offer j him excuses for my not attendb g to ; hirn. Received a letter from you, i asking mo to hand over all the mmios i to Dr Clegboru and revoke the ugem-y. Had money in my Lauds at tlmt tune . which was due to Dr Clegborn I then had Lb-f Is in my hand- 1 . I did not pay | it up then, as I only paid periodically. j Was never previously asked for tbs ; money, as I paid it over at regt’Hr ; intervals. Had prrt of the a..is in my i hands for some tone, w ide p;rt of it I j had only for a few days. Have not got , the dates of some of the payments. Mr MTafiro : Tneu, sir, do you mean \ to te . me that is how you keep you j accounts You, a business mui and a ’ comxNslon agent . Do you u.ran to to— j

mo that you never put any datos to your payments ? Witness : Not all of them. I may explain, ho v ever— — Counsel : You are now u ider crossexamination, aud you will expta'n when you are spoken 10, Mr Pattie. Wuness: I miy say hat I recollected these accou its at all times aud in a' 1 .

places. Cross eximinnt’on, continued: Never said to Mr Hazlett that I was hard pressed for in > icy, aid that I could not account for all of tho sum. Tho fact was, Mr Huzletk came iu a hu vy, and I told him that I baduott'mo to lookup the names of those who had paid, and bimply gave him a ch-quo for L2O. I suppose I have kept Ll 3 Gs Gd in my hands without acooo lt' ig' for it for over a year.

’Counsel: And that is tho way in wh'ch you conduct your agency business ! Witness : 1 suppose that particular sum was overlooked. Cross-examination, continued : Tlavo accounted for the paymenis of a man named Barrel.

Counsel: But thee are twm payments —one of 10s aud one of Ll. Witness : I know that I have accounted for one of them.

Counsel: How about the other payment? Is this the way in wh : ch you conduct your business ? Do you keep a trust account at tho bauk ?

Witness : No. Counsel: A l l ono general account? You m : x them all up ? Witness : Yes. If I were to keep separata accouuts I wou’d reqr’ro about 50.

Counsel: Can you account for the letter (produced) written by you, saying that if any receipts were held for accounts not accounted for, you w ou’d he responsible for them ?

Witness: Yes I can. I thought tha perhaps my sub-agrnt had received tbo monoy and neglected to account for it. Counsel: I sea; aud that 's tho way you conduct your affa : \s ? To Mr M’Callum : My books do not account for 10s of Barret’s paj .nents. My books show the Ll payment, and I suppose it has been accounted for to Dr Clegho'M. The 10s r leipt is signed by H. M’Kenzie, but he had no right whatever to receive it. Ho is no agent cf mine, and I never received tho money. M’Kenzio frequents tho office, but he ’* no clerk of mine, and I never authorised him to receive any payments on my behalf.

To Mr M’lntire: I only keep the one book. I have a list of the payments, and also a list of the amouuts handed over i i Dr Cleghorn Cannot find aly record of the L 9 pa’d by Barret. Ino payment in my book is “’Barnett.” Barret’s payment docs not seem to liavo b in accounted for in mf books, although tha receipt is in my hand-writing. Mr Salatnay’s account of 15s is nceount 1 for, and it is on my books. It was handed over to Dr Cleghorn with a lot of others.

Mr R. D. Nos worthy raid tho usual amount of commission charged on sma’l accounls was 10 per ceut. Ha a’’owed tint on bankrupt estates. Ho thought 5 per cent on the accounts collected (taking into consideration that tlioro was L3OOO to co’lect) would bo a fair ehargo. Ho would have b on glad to have taken them at that rate.

Mr M'Cailum said ho did not understand that Lorn Mr Noswortby yesterday.

To Mr M’Oallum: The usual rate for collecting accounts —good, bad aud indifferent—iu small amounts was 5 por cent. This concluded the case for the pla'-itff.

Mr MTuttro thou open l tho case for the defence, and held tnat pla'ntiff had been fairly aud generously treated in tho matter.

George Clegho-n, medical practitioner, (the defendant in the action) deposod that m tho end of December 1 SB‘J, lie and Dr Porter disso’v- d partnership and it "a 3 ag'ced to place the accounts, amounting t>about L3oi ), in the hands of plaintiff fir coMcci’on, at speoi.ied charges. P aiuliff was to go round aid s< o people, but be was not to sue anyone without consulting witness. It was understood that Ibe money was to be handed over as collected. About 1/250 in cash and L 195 in bi!b passed through plaintiff’s band*, the latter realising about LlO5. Aiiout LSOO was paid to witness direct. PlainGff received about LlO in commission. The first five or six weeks plaintiff accounted weekly for the money collected. Some time afterwards plaintiff made out a list of about 20 people whom ho thought it would bo advisable to sue, but on looking over the list witness thought it would bo very unsuitable to Sue people who were po r fectly solrent and who always paid their accounts, and who would have been veiy much annoyed if they had been sued. Plaintiff did not complain that I had misled him. Sa ir plaintiff in January, who said that he intended to get C. Barley man to bavo another try at the accounts. Later on, in reply to enquiries, he said that ha was getting in only a fewpounls. Witness expressed dissatisfaction at the slow ruto in which the money was corning in, and plaintiff replied that he cou’d take them out of his hands if he liked. I replied that I wou'd send Hazlett down to take over the accounts. Hazlett went down next day, but plaintiff said ho had not got the list from Barloyman. It was afterwards arranged that Hazlett was to call on plaintiff at three o’clock on a certain day to tako over the books. 8.-fore that day, however, pia’ntiff wrote stating that lie would not be ready. In consequence defendant eois'i'ted a s dicitor, : n reply to a letter from whom pia’ntiff furnished an account of the money he had collected.

! In reply to counsel, witness said that ho had not received certa’n sums of 10s, Ll, and 15s collected by plaintiff. By Mr M'Calium : There was iro ox- | pressed contract that the accounts were placed in plaintiff’s hands at a fixed ra*o of pe-centago to exhaust the accounts. I first complained in October that the accounts were coming in slowly. After the first six weeks tho payments came ’ r slowly. At one time M‘Kondo was Pattie’s authorised accountant. My notebook was open to Pattie’s -'ospection at any time. It was no par., of my agreement to furnish plaintiff with a statement of the money I had received. H. Hazlett, clerk to Dr Clegborn, corroborated the litter’s evidence. H« ca’led upon pia’ntiff several days in succession and also at intervals of a few days in order to take over the accounts. He was always busv, and I was put of. Svatuay’s aeclunt of 15s was never rereived by Dr Cleerhorn. By Mr M‘Call urn : I gave plaintiff to understand when I called upon hirn that I wanted a snuaring up I should si" that with a pushing co".rotor ab nut iMhO) could be gur, in without Bluing. lam aware that plaintiff had sent out the accounts with footnotes requ •sting pnymc at. Counsel having addressed the Bcu .h, the Magistrate, in giving judgment s .b 1 that the accounts had been in pl.intiiiks hands for lb months, and surely that was a reasonable time ro code d the i.. ,:r-y. Under the c’rcumstances, defendant was justified in withdrawing oho accounts from plaintiff’s hands. The fact that defendant could not get a .statement was sufficient. There was not an atom of evidence to shosv that plaintiff had been n.'sl'.d. Verdict f.>r defendant, costs Ll ss.