Blathwayt v. Hay and others.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 3, 26 October 1844, Page 2

Blathwayt v. Hay and others.

This was an action brought by the surviving partner of the late Mr. Brewer to recover the amount of a bill for services performed in conducting an action in the Supreme Court. There was no dispute about the services or the amount, but it was contended for the defendants — Ist. That they were Trustees, and the person really liable was Mrs. Young, and that the late Mr. Brewer admitted this on tbe" face of the bill ; 2nd. That, supposing the defendants liable, they employed the late Mr. Brewer, and not the firm, so that the proper plaintiff was the Executor. On the first point, the learned Judge ruled that, as Trustees, the defendants were necessarily parties to the original record, and therefore that they were liable, and no evidence was admissible to contradict the feSordf* On tEe other point there was evidence" oh' both sulesj, and the Jury found for the defendants. Mr. Hanson afterwards moved for a new trial, on the ground that as a deed of partnership was produced for the plaintiff, and evidence was given that the services were performed during its continuance, no question could arise as to whom the defendants employed; and that as it belonged to the Court to construe the legal force of written instruments, the Jury should have been directed, if they were satisfied of the performance of the services, to find for the plaintiff. On Monday last judgment was given as follows — Judgment. — I think the plaintiff* in this case has disclosed no ground for a new trial. The action was brought by the plaintiff as surviving partner of the late Mr. Brewer, to recover j£26 for services performed for the defendants, in conducting an action in this Court at their suit. To prove the plaintiff's right to sue, an agreement for a partnership between himself and Mi. Brewer was produced, and evidence was given to show that the sprvices. were done during the continuance of the partnership. For the defendants it wai contended that they employed Mr. Brewer alone, and that consequently the action should have been brought, not by the surviving partner, but by the Executor. To prove this, the warrant to sue was produced, which was to Mr. Brewer alone ; the writ was also indorsed in Mr. Brewer's sole name ; and, - finally, the .bill of costs was in Mr. Brewer's name also ; besides which, part of this bill was in Mr. Blatkwayt's -own>hand writing.- It to contended, that the constructions of the instrument of partnership belongs to the Court, and that no question but the actual performance of tbe services snould have been left to the Jury. , I told the Jury that the instrument was conclusive evidence of the fact of the partnership, but the contracts between the parties was a question altogether distinct from the construction of the instruments, and was a question for the Jury. I called the attention of the Jury to such parts of the evidence as showed when the services were performed, but there was no evidence that, during the progress of tbe suit, the defendants had instructed Mr. Blathwayt, so as to show a recognition of the firm ; and all the documentary evidence being in Mr. Brewer's own name, I cannot interfere with the verdict of the Jury. As to the respective rights of the surviving partner and the Executor under the instrument ot partnership, should the latter recover in a new action, I pronounce no opinion. Rule for a new trial refused.