DISTRICT COURT.

Otago Daily Times, Issue 4011, 24 December 1874, Page 6 (Supplement)

DISTRICT COURT.

Tuesday, 22nd Deobmbbb. (Beforo Jl'3 Honour Mr John Bathj&to.) CAKIUCK V. PYKE. Action to recover £200 damages alleged to havo been miltaincd by plaintiff for breach of contract, as follows: MeiidaiiUein-about to start a weekly newspaper ; ZTthc MSSutHn Dnnedta, made proposals to the tained by plaintiff towards a sum of £400, at which iture and on contribution of which sun), he Bhould be entitled to a quarter-interest in the concern. Srayraeiitof £400 would entitle him to a fourth si arc o/the paper. Plaintiff further stated m his proS that he calculated be would be able to pay up the £400 within two years. Shortly after the receipt of said letter, the defendant, it was alleged by plan - t'ff agreed to plaintiffs proposal, and plaintiff in all thin^fperiorn^d his contract. Plaintiff advanced defendant lit, and left £65 in his hands. On the 23rd Tilav defendint transferred the whole interest of the J ereury to the Guardian Company, thereby approurntin-' plaintiff's quarter interest in tho paper. DeSav t tod not paid the £24 or £05, and plaintiff clahu'd tleso turns, and such a further bum as would wake up tho amount of £200; tho largest amount of (lninii'cs hB could recover in this Court. ■■ The lefenaant's plea was that he had never contractedwith plaintiff as alleged; that he never made any proposals to pteintifE; but ho admitted that the nlaiuW made such proposals to him ; and that ho SS not agree, either verbally or otherwise, with the proposals of the plaintiff, but simply engaged him as SvnyWser, ard to make himself generally iwaful. That the arrow of salary was now due, and a small amount for trSluK expenses, which would be paid, ani Wh'oh defendant had always been ready and willing to pay on the plaintiff giving a proper account, which he Mr Haggitt for defendant. Mr Barton stated the case for the plaintiff. EubWcarrick, shorthand writer and general re«orte?,Wwhodeseiibed himself as at present etlitEnV conducting a Provincial journal, biu4 tbathe mlt Mr We in Wellington about the close of tho Sonof is?3-about the month of September. Mr , jffii«l««WQ allusion to tho fact that he had exSd to be made editor- of the Guardian, and that in ?hat he had been disappointed; also, that he. had a * little bit of an arrangement in view," which, ho thou"ht, would pay back tho Ouardian-would opcrato aSst it in sonieway. They returned to Dunedin m ?fie same steamer i» October, 1873. _ JlrPyke^said that t'° ~o ; n n - UD to Lawrence to finish his " WiJd Will Ind^and PaUo/'Don't take any situation tilt I weyouiuDunediiion my return." Subsequently, S»}ptia- uud defendant had a., interview, at reauest of defendant, and defendant toM him [hit W3 intention was to start a weekly newspaper. Defendant, s»id, " It must be kept ft profound beorot. j J^ndektdnd the Guardian Co are making preparations to start ft weekly in connection with, their daily. They must, be anticipated. That can only be done bjr the utmost diligence, and the most profound secrecy." Defendant either said that plaintiff was the only^arty tl ia t knew about it or ths* }¥bepler and plaintiff onW dicl. Defendant slid, "You are m » P°'ltlon d out how this Guardian project stands. You find out, and keep me well pastel up. as the mper nupt bemto the field before them, and the dateof P"b!l«f a °" ", U depend upon how they are situated, Witness accord.iS put himself into communication with parties—Mr Haggitt wantod to know what this had to do after interview took place, and VitolSted him up in information, which was of «aa? service to him. Witness also, at defendant's reMt estimates for him of the probable cost of •* *•' » thtTrSv and the probable revenue, and the f^ up by "itnes ß was adopted by defendant, draft drawn uppy • » pro i )aWe Ifi y C nue, V£ ft*? e^nVatoneoft &k i<3 S H- T This waa *C i-w Lthiiate On Thursday, ?oth November, a x*f frr^i lt?j& sxsw thou-ht over it and submitted the proposal in writ-. fog^Wch heieft at defendant's hotel., He«.r A* fsnAnnt nuxt dav Defendant said, I got yoi,r St^ tot rightwho" I returned homo.. The pro, «S vwi ma'jo U a perfectly reasonable one. You seem to liave carefully considered it. I accept it, and we will act upon it." Witness then walked over tn the Athenaeum, and at once made a short note within two or three minutes of the time tho words wereVid It was arranged that the prospectus wafto be printeti at the Star oißco at midnight on tho JXtin^Frday.aud on Saturday, by arrangement, deondSntwls to start for the Goldflelds, and plaintiff tS for the Bluff,, exch to canvass. Witness was 2.5 days cauvasHin?, and his expenses were £24. The first number of the paper was published on the Ist . January Witness continued till the 26th May iu the servicedl of the papor. Witness entered at a salary of £ W a year aVagreed upon, and drew £S a week, the romain^er to go toward 3 Phi S s]mce of the paper. vVitness el™med£2s for salary before time,o startmg■ rt^tho naoar- £24, canvass ug exponses, and £40, being x,l po?week of htx salaiy not drawn. Rumours went about that tho Mercury hod been transferred to tho Guardialvbut Pyke kept out of the way, and w.tmas could not ascertain the accuracy of them. When wit ness found it had been transferred he wont to Pyke to "peak to him on tho matter Pyke seemed .to have anticipated what ho came to him to speak about and when witness went up to him he said, "By-the-bye, Cm"ckl have transferred the Mercury to the GuardS Company ■ you'll publish it this week as jwual." Up 3ft witness had R aid nothing. Witae* thonsaid: " Oh, you have transferred it, have you? T?P>iid- "Yes- and I will moke the best arrange. ■ inents for your interests that I can. In the meantime vou go on to the reporting staff of the Guardian, see "Mr Crei"hton (the then editor of the Guardian), and aWe° itwith him." Defendant then went away without "iving plaintiff an opportunity of getting a briber explanation. Defendant kept out of his .way. Whenevefde U.nt did not wish to prolong an in^^er■Jlbw ho know how to cut it short. He had tact that wav llr Crelghton took witness on at the same Sdary h" had been gotting-iis per week. Defendant v»n^iirovßOUtforMrPvko,butit was ten days be-

cury, and PykoTo^Uod, ."Oh, I ani very busy just no\y. We, won't quarrel about tho arrangement wo.' havo made. See mo again." Subsequently witness gave'defendant a statement ot his expenses, and made repeated -applications to him week after week for payment, but was invariably put off. ;Pyke went to Wellington, and on his return—the matter was now lying over for five or bix months—witness was at him. tenaciously ' for a settlement until defendant wrote him a letter dismissing him from his situation on the Guardian. When plaintiff cculd get no satisfaction he instructed his solicitors. The Mercury, when handed over to the Guardian, had a circulation of 1500 subscribers at £1 2a (id each per annum. The subscriptions were coming in so rapidly that Pyke wanted all tho subscriptions in advanco and quarrelled with plaintiff for not taking money in some cases. The Mercury was rapidly approximating to a pormanent success—so imu'h so; that the Guardian abandoned the idea of bringing out its weekly paper and bought tho. Mercury. Witness would have willingly paid £500 for his fourth share, and the balance of the money for the whole of the share, he would hive been able to pay in the month of September. • - I By Mr Haggitt: Witness wa9 not engaged as canI vasser, but merely as sub-editor. He canvassed for tho paper before tho first number was issued. Witness never took any of 'Pyko's moneys and applied them to payment of his own accounts, and Hyke never at any time charged him with doing so. A country canvasser was appointed for the Mercury. During the tune the canvasser was away on business he drew a lot of orders on plaintiff for moneys due to him by the Mercury Office. These wore sent down to witness, who retired them from money in his hands at the time. Witness hadsome of these orders still, which Mr Pyke had not yet paid, aiid which witness intended to sue for. Pyke never at any time censured him for raising his (Pyke s) monoy. Witness knew Mr Drumm. Mr Drnmin was now present in Court. Ho never recollected any occasion that Drumm was present when Pyko reproved him (plaintiff) for misapplying money. If Mr Drumm was prepared to swear that Pyke so reproved witness, witneaa would contradict him emphatically. As to an order for the payment of £4 not produced, witness was in debt to Powell, of Queenstown, for £i. It was arranged that Pyke should pay £4 to Powell on witness s account; but instead of that, he had apparently given Powell an 10 U for £4, which was.subsequently collected. Witness had given Pyko credit for the sum of £4. Witness, thinking that Pyke was going to pay Powell, at once gave him a receipt for PA. Tho matter was simply thia : ' He gave Mr Pyke a receipt for £4 that he might pay Powell, and instead of paying him gave him an lOU, and afterwards Powell went to Queenstown, and sent down an order for its collection. Witness, who before said that he had never appiied any of Pyke's money to his own use, now explained that whenever Pyke was owing him money under the agreement by which he drew £3 a week, he took the amount he was entitled to. Witness expected to get more than a fourth of tho cash Pyke got for selling the Mercury, as ho sold it without plaintiff's concurrence, and did not make a similar arrangemont for him (Carrick) like what he made for himself (Pyke), namely, a three years' engagement at £050 per year. Witness had been quite prepared to pay tho balance m September for his share. But it was not likely he would pay Pyke tho £400 after the paper had been sjld, unless he had a guarantiee. He would not trust Pyke with £400 unless ho had a guarantee, nor would any ono else cither.—(Laughter.) As Pyke accepted his proposal without the slightest hesitation, witness did not get his acceptance in writing. He merely took the precaution of making a note of the verbal acceptance at the time Pyke having verbally accepted tho agreement, and tho agreement being acted upon, witness thought his position was perfectly good. If witness had been in Court before, Mr Pyko's experiences of litigation more than balanced his. The receipt for £10 (produced) was for "travelling expenses," but if that were applied towards travelling expenses, witness would be £10 short of the sum of, £3 per week. This closed tho case for the plaintiff. Mr Haggitt submitted that tho plaintiff must bo non-suited on the second ground of defence, stated in the particulars, namely, that the Statute of Frauds affordod a complete defence to the action, as the plaintiff having failed to prove an agreement in writing of a partnership to commence at a futuro time, he must be nonsuited. As to the point that there was a part performance which showed there was no agroement, every act of the plaintiff was quite as consistent with his being a hired servant, as it was with the story ho set up; and he (Mr Haggitt) would go further, and say it was more consistent. Mr Haggitt also drew attention to the fact that the receipt"! given by plaintiff were for "salary," showing that plaintiff was a paid servant. Sir Pyke had never denied his indebtedness, but had not paid, being unable, owing to the conduct of the plaintiff, to ascertain the amount he owed him, plaintiff having never rendered a detailed account. Defendant could not pay into Court tho amount of money he conceived to be due, because by'paying in monoy he would make admission of an agreement for a partnership. Mr Haggitt then said that tho agreement entered into- between plaintiff and defendant :wae a verbal ono, that plaintiff should get £5 a week. 'Mr>Barton argued against the non-suit p-.iut raised by Mr Haggitt, contending that this was not such a contract as required to be in writing. Mr Haggitt replied.

At hnlf-patt i p.m., His Honour said the case could not be gone on with anyfurthor during the day. To allow the nonsuit points to be looked up, he would adjourn the case till the next regular sitting of the Court in January.