Resident Magistrate's Court, Foxton.

Manawatu Herald, Volume III, Issue III, 4 July 1891, Page 2

Resident Magistrate's Court, Foxton.

(iieforo H. W. Brabant Esq, R.M.) Wednesday, Ist July. J. Gardiner v. McMillan, Rhodes & Co., AND J. BIRCHLEY. (Continued,) . . . Mr Hankins said the evidence showed that McMillan, Rhodes & Co were partners to Ist May, but had. then -settled all, accounts 1 ; they had then let the iriill ; there was no, community of profits between ' Birchley, Gray, Nemoe > and Turley and McMillan Rhodes •; he contended that' rid partnership' was thus established. .. ; Mr Fitzherbert contended that if it cpukl he.shown that them was any division of profits there was a* quasi partnership established, ;, he quoted Ijinney.pn partnerships ; th 6 objection was noted, and j. Birchley was fui'ther. examined; the . conversajbi6n> mentioned by Ga.rdinef ..took 'pjace two^mpnjjhs ago ; after ./every tiling of the old debts was paid' to McMillan Rhodes, they and himself were to share ; he, two months ago, had said that the £12 a ton was paid to him and any balance went to liqui,date th©:>^ old . debt ;- at. this time (March 1890) he . was iUdt io . have anything to do with the mill till it -was clear ; there wafi an agreement drawn up, but not signed ; the mill was sold to Hopkirk Brothers three months, ago ; McMillan .Rhodes took all the money; McMillan Rhodes, after sale of mill, gave him a clean receipt for £90 owing on a private account,, so that he should have no further claim on the mill ; the partnership was suspended' for a time ; he ga^e no notice in writing to the creditors. J. Gardiner, recalled' said, that two months ago I irchley jmd told him the conditions of working the mill, and what money was over was to be divided between Gray, Jliichley, McMillan and Rhodes; he always knew the firm he supplied as Birchley. & Co. f it was'entered so in his bpoks, except part w^s entered as Sohp mill;.. had ijQyev; had^Q ( tice that McMillan Rhodes were not in it; never heard till the mfll' was*

[ sold that McMillan Rhodes were not partners. By Mr Hanging — Have only one book at the hotel, the ledger ; had received payment up to Ist May, 1890; had conversation with Gascoigne of Shannon about this action, he is sharing some of the cost of the action ; Mr Hay. is bearing a. .share also ; Gray called on him at Shannon about future; operations, after the accounts had been paid : he said the mill was going to continue as usual and. asked for meat; before" the items. claimed for were incurred did not renjember if he had seen Birchley ; understood' Gray was a partner insbine way ; went . to the mill to see Birchley arid Gray febout getting the money for the meat supplied ; (book produced, but on turning \up the account it was found without dates, and Soho mill was in debit £8' odd); when he went to mill, Birchley and Gray owed £80 odd, and he told them he would supply no more meat until he had some more money; Birchley skid he. had none and McMillan and Rhodes did not care to^ advance more than the cost of turning out the fibre ; they said they were going to Foxton to make some different arrangements about turning put the fibre; they reckoned they were not getting enough ; he came to cbn-, elusion that the mill was in a bad way ; lie understood that., Birchley was manager for McMillan Rhode? ; he ,dkl, know, when' the milj was stopped, Bivchley and Gray Was ; to turn the fibre out at £12 a ton ; they did tell him thai, they were getting in a bad way and that. Jie must decide if he would continue, supplying, and he had agreed to go on supplying if a portion of his account was paid; onoe or twice Birohiey gave me an order on McMillan Rhodes ; he could not say how orders signed as he did not read, them ; he would not say they were not signed Birchley and Gray ; never sent any but to McMillan Rhodes.,; Birchley and Gray hacT a meeting .with Gascoigne, Toomath, Hay and himself ; he might have said at the meeting " it might as well be worth trying a shot at McMillan Rhodes & C 0.," he would swear that neither Gray or Birchley had informed him, after the mill had stopped, that McMillan Rhodes had nothing to do with it. George Gray — The mill was stopped about March, 1890 for a month or five weeks; prior to March, Birchley, McMillan and Rhodes were the partners; mill was stopped because it was not paying ; fresh arrangements- were made with Gardner after the mill started again ; It was Birchley, Tin-ley, Nemoe and himself who would, have to pay ; our contract went by the name^bf Birchley, Gray & Co ; he got nothing when the mill was sold ; Birchley told me he was a partner ; up to the other day when mill was sold he was under th"c |mpression Birchle.y was a partner. E. Gascoigne said that from the time when McMillan and Rhodes came in to the Soho Mill to the other day he was not aware of any change in osvnership. He gave credit upon the strength of McMillan and Rhodes. By Mr Hanking— Lived two miles from the mill ; he may have rendered ac -omits in the name of Birchley and Gray.i (Mr Hankins he'r-e ;• produced 4 accounts as delivered to Birchley - and : Gray' between the periods from, May 1890 and onwards.) This concluded the case, for the plaintiff. Mr Hankins said that Messrs McMillan, Rhodes & Co had bought out Daniels and were for a time partners VifcU Birchley; 'At the end of March the mill was- found to the bad, some 4*700 or £800 ; McMillan Rhbdes> paid all liabilities and stoped the mill for a month or six weoks ; when'inill .was thus settled "McMillan and Rhodefe idld™ Birchley he ;could have no more to do with it and the land .was , transferred to them; when this was settled they let the turning out of the fibre to the; men who have been mentioned ; Birchley t and Gray will swear, when they took the cpntracl tliat^they told rGardiper .that McMillan and Rhodes had nothing to dp; with >the 'mill and asked^ him to supply meat on the usual terms. After a time, when in difficulties, they told Gardiner about it, and he after a payment had been, received on account, continued doing so ; the true test as to partnership was, "did McMillan and Rhodes share in the profit of producing the fibre ?" The only way that Mr Fitzfaerbert relied on to connect McMillan and Rhodes with these people was on the strength of former dealings ; It was perfectly clear that 'Gardiner did know of sonic alterations havingbeen'made. \ J. R. McMillan saad-r-Hisf firm purchased Daniel's share in the Soho mill in July I§B9 ; At the end of a year they found it was not paying, and the mill was closed fpr 4 or 5 weeks. They paid £600 or £700 liabilities ; they told Bircbley that the mill was, to be ours; the land on which the. mill stands was conveyed ; they made a contract with Nemoe, Turley, Gray and Birchley to produce tlie fibre and they have been paid for all ; they have drawn orders in favour of Gardiner ; they have itever ordered' any of the'nieat the subject of the claim ; they haye. never lifld a dferaand until the letter from

Mr Fitzherbert (produced.) By Mr Fitzherbert— They bought Daniel's share of mill ; part was a lease of land with a purchasing clause ; they have had some of the money back, say £200 which would be profit against loss; Hopkirk Brothers purchased the mill for £450. Joseph Birchley said— After he had commenced on the contract he had seen Gardiner at the mill and told him they had taken, a contract to produce fibre, with Gray, Nemoe and; Turkey ; Gardiner /asked if it would pay, and he" told him it would if they had no ill luck ; sometime ; afterwards told Gardiner times were going bad, and he came to the mill and asked him what they should do ; he wanted to stop and he asked Gardiner what was best to be done ; was quite certain he had told Gardiner the contract was on their own account. By Mr Fitzherbert— He had told Gardiner, that there was a fresh account; it was to McMillan and Rhodes advantage that they went on working : he . sold everything :to McMillan and Rhodes ; they said when the mill was clear they would take him into .partnership again ; he exchanged a black horse for <?6me' goods with Gascoigne ; hail no share in a horse called " Dolly." , By Mr Hankins— Borrowed the money from Howe to pay Gascojgne. George Gray said that he had seen' Gardiner: tpld ..him who had taken the contract for turning out fibre ; they signed the orders for payment one time when down the tram Gardiner, .told Bfrchley and: ihiinself that her would not : supply meat . unless he was paid ; as they wanted to conclude contract he agreed to con-: tinufr supplying 1 meat and- :the back account was to be paid as they could ; we' were paid by McMillan and Rhodes for all the fibre they produced at the rate agreed upon ; McMillan and Rhodes were not to take any part of the profit on the £12 a ton, By Mr Fitzherbert — The agreement about the £12 a ton was verbal, only; he considered that if Birchley had given a transfer to McMillan and Rhodes of the section, he* would have put himself out of the mill. Mr Fitzherbert here asked witness if he could show any of plaintiff's accounts charged to Birchley and Gray, but Mr Hankins declined to let him look at the accounts, whereupon Mr Fitzherbert said it was evident Mr Hankins was afraid to have them produced, and he should comment upon this refusal in his address to the Bench. Wallace Turley said — He had been driving the engine at the Soho mill ; was engaged with Birehley, Nemo and Gray in producing fibre at £12 a ton for McMillan ; he never got any wages for the job as the contract had not paid ;, he had only got his tucker ; he haS nothing to do with the arrangement for supply of goods by the plaintiff or Gascoigne, as he was always busy in the mill. By Mr Fitzherbert — The contract to produce fibre was made in May ; he was not in the contract when it was . first made ; he went into the contract three or four days afterwards; he was asked to do a job at the mill and while at the mill was asked to join .the others as partner ; he refused at first, but afterwards consented ; he was to get a fourth share ; there was no written agreement. ■.-■■- Re-examined— he signed one order for wages. William Toomath said — He lodged a claim against Birchley and Gray for work done and goods supplied for the mill ; he offered to comprpmise for £40 cash and to give Birchley and Gray time for the balance ; Mr McMillan promised tp Jpay the £40. in consideration that he should not pressrfpr the balance; he actually paid him £25 ; he sometimes sent his account for work done to the mill to Birchley and Gray and sometimes to Birchley and Co ; the -account in his book is against Birchley and Co.. By Mr Fitzherbert— Birchley told him the arrangement was that the fibre was to be produced at £12 a ton, that it fetched £16 in Wellington, and that the difference between the £%2 and £16 was to go in paying off Birchley "end Gray's old debt to McMillan and Rhodes, and that after this was discharged the profit was to go amongst the partners. Mr McMillan re-called— The £25 paid to Toomath was paid out of monies due to four contractors. It was the balance in their hands of the £12 a ton. By Mr Fitzherbert— He paid this amount immediately he found only ,£25 due to Birchley and. Gray's credit, The solicitors, in consequence of a remark from the R.M., agreed that any judgment should be for £67 11s Id, but that if the defendants proved credits in excess of £82 8s 2d, the amount credited in plaintiff's claim, the excess should be allowed off the judgment. / .After both solicitors had addressed the Court, the R.M., in delivering judgment, held that it had not been shown that Messrs McMillan and Rhodes were partners with Birchley, and he therefore gave judgment against Birchley only for £67 11s Id,' with Court costs £3 6s. He gave judgment for defendants as regards Messrs McMillan & Rhodes, the other defendants, with Court costs £1 Bs,, -

each party to pay his own solioitor. The amoufft of judgment against Birchley was to be subsequently reduced if defendant's solicitor produced receipts showing payments in excess of the amount for which \ plaintiff had giveu credit in his account.