SUPREME COURT.

New Zealand Gazette and Wellington Spectator, Volume IV, Issue 289, 14 October 1843, Page 2

SUPREME COURT.

October 2, 1843, Before hit Honor William Martin, Chief Jutttce,

Galpin v. Martin, — Mr. Hanson for Plaintiff, and Mr. Gould, for Defendant. This was an action on a bill of exchange. Verdict for Plain, tiff, by consent for £77 6s. 9d., interest, and costs.

Machattie v. Martin, — Mr. Hanson for Plaintiff, Mr. Gould for Defendant. This was an action on a bill of exchange. Verdict for Plaintiff, by consent, for £62, interest and costs.

Writ/At v. Toms, — Mr. Hanson for Plaintiff, Mr. Ross for Defendant. This was an action brought to recover the sum of £54 15s. Ba., for goods supplied by Plaintiff to Defendant. The evidence went to prove that, in November, 1839, Captain Hay, the Harbour-master of this Port, was the agent of the Plaintiff, and that the goods, whilst he was so acting as his agent, were sold by him to the Defendant. After the evidence of Captain Hay, Mr. Ross consented to a \erdict for the Plaintiff for £37 14s. 10d., and costs.

Machattie v. Watt, — Mr. Hanson for Plaintiff. No one -appeared fiorJOefendant. This was aa action to recover £IS2 9s. 6d., for^gooda *old and delivered by the Plaintiff to Defendant, and for money advanced. Verdict for Plaintiff, for £192 93. 6d., and costs.

Barker and another v. Watt, — Mr. Hanson for Plaintiff. No one appeared for Defendant. This was an action brought by Plaintiff aj indorsee to recover the sum of £62 ss. and interest from the Defendant, the maker of a promissory note for that amount. Verdict for Plaintiff for £62 55., interest and costs. -

Eager v. Hurley, — Mr. Hanson for Plaintiff. No one appeared for Defendant. This was an action brought by the Plaintiff* as indorsee, to recover the sura of £24 Bs. 4d. and interest from the Defendant, the maker of a promisory note for that amount. Verdict for Plaintiff £24 Bs. 4d , interest and costs. Wallace v Stobo, — Mr. Hanson for Plaintiff. Mr. Ross for Defendant. This was an action brought by the Plaintiff to recover £42 13s. sd, the vaiue of goods sold and delivered by the Plaintiff to the Defendant.

Thomas Waters examined, — I am a bookkeeper at present ; I knew the Plaintiffs and Defendant in 1841 ; I was agent for the barque Jane ; I recollect some salt being given by the Plaintiffs to Defendant for the purpose of selling tt ; I was present when the agreement was made; I know the Defendant's band writing; the agreement produced respecting the salt ii signed by Stobo ; the firm at that time was Wallace White and Wallace ; the two Messrs, Wallace were here at that time ; the agreement was made with them.

Cross-examined by Mr. Ross, — I alwayj understood Mr. White was in the firm ; I cannot recollect if a document prepared at the same time was written at the time of the agreement; I think the document produced is in the hand writing of one of the Wallace's ; I have been in this country since 1 841 ; I knew the place of business of Messrs. Wallace, White and Wallace ; I have frequently had transact tions with the House ; Invoices sent out have been sent me in the firm of Wallace, White, and Wallace ; I think Mr. White is dead. By his Honor the Chief Justice,— The only question under the plea of never indebted puts in issue as to whether the goods were ever sold and delivered. Mr. Hanson to the Jury-— recapitulated the evidence, and argued that, under the agreement between Plaintiff and Defendant, that as the Defendant, who had the option of returning the bags of salt if he found them unsaleable, never did return them, he had made himself liable for their value.

Mr. Ross, — after-the decision of your Honor, I shall not trouble the Jury. The firm of Wallace and Co., is different to that of Wallace, White, and Wallace. His Honor to. Mr. Ross,— You had your remedy by pleading in abatement, at the tune of making up the issue. Verdict for Plaintiff £40 os. Od. and costs. Rhodet v. Smith.— Mi. Hanson for plawtifl; Mr. Ross for defendant This was an action brought to recover?thVsum of £100. the value of five tons of colonial flour, sold bytbeplainntt to the defendant' 1 * . Charles' Piper eian^nfd.— l 'am clerk to .£• plaintiff; I knpwr the 'defendant Mr. <h<*P Smith ; in JF%&ry last, Ij^^f* f fejf}: dant at the pliffiK »tore, WHNBWf «*•*■'•

I recollect five tons being delivered to defendant on that day; a man of Mr. Smith's came first, and then Mr. Smith himself, to ship the flour, then other persons were sent to assist me; the defendant was at the store at the time ; the defendant waited afterwards at the wharf, and took a note of the bags as they were sent off; the price of the flour was £20 a ton. Cross-examined by Mr. Ross. — The document produced is in my hand writing ; I know Mr. J. M. Taylor; the flour was delivered to Mr. Smith on account of Bowler and Smith, as I supposed ; the five tons of flour mentioned in this invoice is the same as that of which I am gpeaking ; the invoice is made out to Mr. J. M. Taylor; when I first went up to settle the account, I took a bill of particulars, made out in the names of Bowler and Smith ; Mr. Smith said Mr. Taylor would give hia acceptance for it; I never understood that, the flour was purchased by Smith as the agent of Taylor; I understood it was purchased by Smith on account of Bowler and Smith ; the bill was made out for Taylor by the authority of Capt. Rhodes; there was an account of J. M. Taylor's against a Capt. Bruce, which was allowed to be deducted from Taylor's account; Capt. Bruce had given Mr. Taylor an order on Capt. Rhodes to pay it, and the amount was deducted in the settlement of the account, and Taylor's acceptance was taken for the balance; Bruce 's accoiint was £31 or £32; I was present when Taylor settled this account by acceptance ; all , thp transactions of Bowler and Smith have ahva>s been entered in our books in the name of Taylor; invoices have been sent in to Bowler and Smith, though the transactions appear in our books in the name of Taylor; about this time we sold a ton of flour to Bowler and Smith, .and were paid by Bowler and Smith for it; Captain Rhodes holds, at this time, Taylor's acceptance, of which I have spoken ; I went home and a,sked Captain Rhodes if he would take Mr. Taylor's acceptance, and if Mr. Taylor would give his acceptance, of course I would alter the bill; the one ton of flour was paid by on acceptance of Bowler and Smith ; I have never- heard that Captain Rhodes was suing Mr. Taylor; neither the names of Bowler and Smith, or Smith only, were upon Taylor's acceptance. Examined by Mr. Hanson, — I tonic the first Bill. of Parcels to Bowler and Smith's house; I saw Mr. Taylor; Mr. Snvth said, there was an account against Captain Bruce which if Captain Rhodes would allow for Mr. Taylor would give his acceptance for the difference;' Mr. Taylor's acceptance is over due and has "been so for borne time, and no part of it has been paid; I understood that Mr. Taylor was giving the acceptance cdaccountofthedefendant; Mr.Smithpurchason the one ton. He agreed to purchase all (he flour that was left ; Mr. Taylor was not in Wellington at this time; the transaction of the one tone of flour, did not differ from the transaction of the five tons, except as to price.

James Davis, labourer, examined. — I remember some time in February, carrying oui flour from the store of Captain Rhodes; 1 know Mr. Smith ; I saw him there at the time ; Mr. Smith was standing close to the scales taking an account of the different weight of the bags; to the best of my belief tlie hags were weighed on coming out of the stores ; Hfizlett the defendant's carman was attending the scales as I was carrying the flour out of the htore ; Captain Rhodes remarked to Smith, that he had better take them without weighing, as \\i had a great mind to take the overweight out of the bags; Mr. Smith paid me for my work in carrying the bags out.

Mr. Ross called for the defence, John Mathew Taylor who stated, I am a merchant in Wellington; I know the defendant Mr. Smith; he was not generally acting as my agent; In February he bought some flour for me of Captain Rhodes ; I trade at Taranaki ; ..when I am absent Mr. Smith manages my business foi me ; I took the five tons of flour purchased by Mr. Smith to Taranakiandsoldit; the purchase by Mr. Smith was made on my account solely ; I was in Wellington at the time it was delivered; it was delivered at Rhodes' wharf for shipment, and was at once sent away ; I requested Mr. Smith to attend to the shipment ; the date of shipment was I believe sometime in February, it was •hipped on the Shepherdess, and I proceeded in the Shepherdess with the flour to Taranaki, after the shipment of the flour I did not see Captain Rhodes, till I returned to Wellington; Mr. Piper brought the invoice to me at my store; I had had no conversation with Captain Rhodes about the flour before Mr. Piper brought the invoice ; Mr. Piper brought an account to me, made out in Bowler and Smith's name, about a quarter of an hour before he brought the invoice made out in my name ; I told Mr. Piper he had made out the invoice wrong, it ought to have been made out in my name ; I begged him to alter it, that I had an order of Captain Bruce on Captain Rhodes, for j£32 which if he would deduct, I would accept for the difference ; I sold goods to Captain Bruce, and he paid me through Captain Rhodes ; the name pf Smith, or Bowler and Smith, was not on the bill which settled the account; Mr. Smith bought the flour for me; the flour did not turn out according to sample, and I refused to pay the bill ; Captain Rhodes served me with a copy of a writ at Nelson, on the 2nd of September ; I was served with a writ on account of the Bill of Exchance which I gave for the flour, but which did not turn out good,

Cross-examined by Mr. Hanson,— Mr. Smith acts forme as my agent occasionally when I am away; I don t give him any commission, ne does iHn a friendly part for me ; we have dealings together,- Mr. Smith and myself, and oi course he has an interest in some. If we enter into a speculation together, of course we share the profit; I sometimes act as his agent, *nd charge him commission for the sale of his goods: I don't recollect that Mr. Smith ever Paid for his own goods by a bill of exchange given by me ; I was a month or five weeks away in the Shepherdeu; the bill was accepted the the flour wa * bought i Piper brought Si 1"*1 "** 1?*1 ?* « ffi ?. e i Mr. Smith Ld myfelf were there, Mr. Smith banded the bill to me ; Srita' * g Mta« waoVout.in Bowler ani MMth s na,me,; F said to Pipe* this is- for me ItSLWS 9 a l te * cd ' deduct lP «*i upon **pwiß llbodet from Capt&inlßruce, and I*

will accept for the difference ; lam quite certain this was said by tfte, and not by Smith : I* was not alone in this speculation of the flour, Messrs. Bowler and Smith were joined with me in it ; the flour was purchased forme : they had an interest in the flour arising from the •speculation at Taranaki. Re-examined by Mr. Ross,— Bowler and Smith had an interest in goods they found, I considered the flour as my risk; I considered that I bought the flour, and was to pay for it, and that I only was to pay for it ; they were to derive an equal share in the profits ; they had some goods, but were not particular as to the amount; Piper went away with the invoice, and returned with it as I suggested, and I accepted it; the reason I asked Mr. Smith to buy it was that I was busy, as I was justgoing to sail; Mr. Smith told me that he had seen the flour shipped on board. By Mr. Hanson,— lt was before the chartering of the Shepherdess that we entered into a joint speculation ; the proposal was first made by me ; in fact there was no proposal made, I chartered the ship on my own account; I put Bowler and Smith's goods on board with the concurrence of- Mr. Smith; nothing was said at that time as to goods that I was to put on board ; as we had speculations before, it was understood, if I took their goods, they were to have a share of the profits; I think the day on which [ accepted the bill was Saturday; I sailed two days after I chartered the Shepherdess ; I chartered her on the Friday or Saturday morning, and sailed on the Monday evening; I said I will charter the Shepherdess, and go myself ; Mr. Smith was present, and did not object to my putting his goods on board ; Ido not know any occasion in which I did not take their goods; I took whatever suited the market ; in my first trip, there was no arrangement as to the fir3t goods shipped; at the time this speculation was made, Mr. Smith bought the goods and received a share of the profits on the whole of the cargo.

By the Chief Justice.— lt was understood that Bowler and Smith were to share in the profit and loss of the whole undertaking, including the flour which was sold at Taranaki. Mr. Hanson, in commenting to the Jury on the evidence adduced, argued that a partnership existed before the purchase of the ffour, from the fact of Smith having ordered the flour, and consented to share in the profit and loss of the | speculation. Mr. Ross, in reply, urged that it was merely a friendly act done by Smith for Taylor, and that, from the fact of Captain Rhodes having made out the bill subsequently in Tayloi's name, and after deducting Captain Bruce's order, having received Taylor's acceptance for the balance, it was evident that Captain Rhodes regarded the transaction as between himself and laylor, and that he did not consider Mr. Smith in any way responsible; it was quite impossible, therefore, to regaid him as a partner. The learned Judge summed up, and put it to the Jury, that if at the time the purchase «£ flour was made no partnership existed the defendant was not liable ; but if they were of opinion that a partnership had existed before the flour was bought, then the defendant was clearly liable for the amount. Verdict for the plaintiff, £68 and cost*. Foster v IVade.—Mr. Hanson for the plaintiff. Mr. Ross for the defendant. The case involved an account between the plaintiff and the defendant. The plaintiff brought the aciion to recover the sum of £40 6s. lid. on an account rendered, but the defendant went into proof to shew that a Bill of Exchange, drawn in plaintiffs favor by plaintiff on defendant, had been omitted in an account between them. A great deal of evidence was gone into to support the defendants set-off-no evidence was offered on the part of the plaintiff.

Mr. Ross, in addressing the Jury, argued that the non-entry of the bill in the ledger, was an omission in the course of his business. Mr. Hanson deprecated, in severe terms, the conduct of the defendant, und argued that the omissiou was not entered in the ledger until within the last month or five weeks, and after thig action had been commenced, and that he was supported in his argument by the fact of the entry in the ledger being made in a different kind of mk. Yerdictfor the defendant.