FRIDAY, 15th JANUARY.

Otago Daily Times, Issue 4029, 16 January 1875, Page 5 (Supplement)

FRIDAY, 15th JANUARY.

before His Honour Mr Justice Chapman and a Special Jury.)

A. 11. MAUDE V. R. C. FKASKit,

Tho plaintiff in this fiction, who in :in auctioneer and commission agent, carrying pn business in Oaniaru, prays that defendant, a farmpr an<} ljjnd.p\v)ipr at Otepopo, may tie required to render a just and true account to plaintiff of nnd concerning- the purchase and sale mentioned in the declaration, and that failing such au account being so rendered the Registrar may be directed to take such an acc-.unt. Further, that the defendant may bo required to pay to plaintiff what, upon taking such account, may be found to be due to him, and that (Mendant !))ay be deereod to pay plaintiff's costs of «uit.

The declaration sets forth that, on the 7th January last, plaintiff and defendant bought together, on joint account, 143 acres of arrowingl crops of oats at Ote; ppo in the Province ol Otajp, at £2 Gs an aero, upon tho agreement and understanding that the crops should be harvested, reaped, and threshed by defendant and afterwards sold for the joint benefit of plaintiff and defendant: and that the clear net profits realised by such sale, &f &t i]gluctjn£ tlio original cost of the growing crop, and tho expenses attending tlie harvesting. rcEping-, and thresl:i 'g, and the sale and conversion in/.o money of tho crops, should be equally divided between plaintiff and defendant. Thtf defendant, ifi pur^uanei' of the agreement and understanding:, took possession, harvested, got in, anii threshed t]ie ei'flp, and smbsequenti}-, in the month of February, sold the in s at a lares profit, and had since received payment, therefor, and retained the proceeds to and for his own use ; that the plaintiff was always ready and willing to pay one half the original coit price of the growing crop, and to contribute equally towards the expense of harvo-.ting, &c,,and all other expenses reasonably eonnaoted therewith, ol wliioVi thp dofemdnnt had notice. That since the sa'e of tho crop by ilefondant, the p'aintiff had applied to and requested him to render, and the defendant had neglected stud refused to render, a just and true account of all monevH paid and received by him (defendant) in connection with the original purchase and subsequent fiile of the crop, and for an account of the cfear'nef profits which haa b'den made by n'leans'bf thesale,'and to pay over to plaintiff Kis Jialf 'part or sha'fe'b'f t]]'e: cigar net iyofits Which Kad begnjjmdtf: bnf lMs/t]ie"defendanf had refused to clflVto ijjJi'p'isintyffir.'Tps^ 'aridd^i'niis-il o:( £210. The defendants plea denied all' the i^ateiiiil allegations contained in the fp-egoing dec'aratipn. Jlr Jlacasjjey appeared for the plaintiff; Mr James Smith, \vijh him Mr O'Meagher, fpt th,e defendant i(p Ifaooscpy, liavinir opened the Case fp,r (he Jilainr tiff, palled tbe following wi(,nqpfies i-» Qeorgp Hutchinson stated he wns a farmev rosldtng in the neighbourhood of Otepopo. A fale of growing orops a-id horses was hg'.d athis farm on the 7th January .last, at which defendant was prosont; and plaintiff acted as auctioneer. Piasar purchased 43 acres of oats, at £2 03 an acre. Witness was not present when the second lot of oats was offered for salo. Witness afterwards met Fraser and Maude, and witness said he would not mind going in halves with Fraser for tllO purchaso of thfi J°teHQQa>Wjf \\e (fi-AsetO watnvj W te i vlle P%°> aa Witness had! another form eleven JtillesAway. Fraser replied tliat Maude had already gone in halves with him. Witness was present when the lot:o{ 100 acres was put up atod withdrawn.-■Fmser was also present1' Maude said a stamped letter of arroe' ?!*!!« betWeeii them v,'teld,'> snf}iM ? n!t, r t o'th ft^ w ft 3 na npdjjbslYy ipe a deed M pal^perslHtt 'FrasbTOgreed to'ftjaf." lT»lirti'ae dsVcd'if it was for the lObVcresi-and fraser said tt'waViofthaioti-" >' :l ' v "•• ■-, •■i'--1 Crbss:examiried: '^yitnesb gave Maude a reserve prie'eof'j£2'ss per acre.' FraseiI 'propßsed to buy the I'pO'icresiat the same'pricp at^ylu'ch'he had bought the 43 acres, and/remarked th,a{. it \fOHl(V'siivp"(!oiflifi!Ea|6n for ' Mfttfd,? tn'ereupoji remarked that Fraser had done him out of hjs commission onoe before, and he should not do it awain. Did not hear Frosornaj, "It will be no partnership unless I get a stamped letter of agreement. I havo been taken in before." Witness would not sweir that he did not use those words, Maudo, he thought, charged him five per cent, commission on the tale, A three or four months' bill was to be given. A, S, Maude, the plaintjff, stated that »t (lie sale at

Hutchinson's on the 7th the lOOaerelot was the first put up.--, .The, bidding did not come up. to the reserve price, and the lot was passed in. The 43----acre lot was knocked down at £.2. 6s per acre to Fraser^ The 100-aere lot was again put up, and ultimately, Fraser said he would not. mind going in if , scmtuody would go halvos with him,, as il was more than lie wanted himself. ■ Witness endeavoured to persnade somebody to go halves with Fraser,,but nobody would, He "also tried to induce Fraser to take the lot, -butha did not succeed. • Witness then said that he was go certain:'' there was money, in U" that if Kraser liked .he wouldgo halves with him. ■ F>rasersaid, " Jndeed. will you?" and stepped forward to shake hands with him.: .After the shaking of hands, witness said take half everything, but Fraser would have to attend to the threshing, reaping, &c., and he (witness) would allow him what was ie:isoi>able. The lot was knocked down to Fraser at the same price as the others'. Witness asked Fraser whether the agreement referred to the whole crop or only to the 100 acres, and Fraser said to the whole. Witness then said he would draw on Fraser as a matter of accommodation for the va'.ue of the crop at three or four months, with interest, and stated that all that was necessary was a letter of agreement with a shilling stamp. Fiaser snid, "All right" Witness also stated that in the event of the oats not being sold and realised before tlw bill became due, he (witness) would, of course, lake up half .the bill. Fraser and witness ultimately arranged that the former should come to the latter's office on the 10th, and sign the bill. Witness saw Fraser on the 10th, and ho signed the bill for the whole crop. The letter of agreement was not written then. Witness paid HutchWison in cash. Fraser said witness could send the letter by pos-t; and witness answered, " All right," or that he " could call next time ho came in." He next saw Fraser standing opposite the Court House in Oainaru. Witness went over to him, and said, " Good day, Fraser; you have not been in yet to sign that letter—not that io matters much between us, but it may as well be signed." Fiaser replied, "All right; I will be down after the Court is over." Witness did not see him again that day. He next saw him about the 12th of the following month'—February—when he rode over to Fraser's i*.-.m at Otepopo. At that time there was an upward movement in the oat market. The crop was then harvested, and in stook. They were threshing. He asked Fraser how the crop was turning out. He replied, " Pretty well;" and in reply to another question, said he got his sacls ironi Mowat of th.j firm of At.dersou and Mowat Witness said, "All right;" and they then went to the threshing machine, and witness took a sample from t\e machine, lie told Fraser that he had come out thinking that lie (Finer) "might he picked up" by some of the buyers who were then travelling about the country. He went on to say he thought l;e could get 3s for the oats, and that if they could not get more when they were all delivered it would be better to sell. Fraser seemed to agree with that. Witness told Fraser not to sell without seeing him, and Fraser said he would not. On a subsequent occasion witness went again to Fraser's fat m at Otepopo in company with Mr Warren, manager of a bank in Oainaru, and had a conversation with Fraser/ Witness said he rode ovu-r on account of a fur;her rise in oats, and further excitement in the market, as he w<is afraid Fiuser might se:l for a few pence more than he had beforo mentioned. He tuld Kraser that he cuuld now get 3s 4d for the oats, delivered at Kakanui Witness again warned Fraser not to sell w.thout first seeing him, and be said "Oh, no," or words to that etfecr. Witness then asked if he Nhould sell the oats if ho got 3s id, and Fnvsor s-aid, " Oh, no. 1 shall come in t i-morrow to Oainaru and see you." Nothing was said about the Utter on that occasion. Witness next Kiuv Fraser in JlONvat'a private otlice two or three d iys afterwards. Witness said to him—" You're a nice fel low to tjo into a joint spec. Hero you gj and th ow away £100 or so by selling at too low a price, and after all the trouble 1 took to keep you advised as to the state of the market, and after your promise not to sell without seeing me." Fraser replied, saying sjmething to the effect that the letter of agreement already referred to had not been sent. \S itnrss admitted that he had aareed to send the letter. Fraser said he was bt.und by having signed the bill, while he (witness) was not bound in any way. Witness said. " That's all nonsense. You know wc|l enough that if you. had a loss you could got a cheque for it if you cajne'to me. Putting principle out of the question it would not pay me to make a rascal of mysulf." Witness ultimately said, " The long and short uf it is, do you moan to repudiate this agreement or not?" He luiug down his head and said, " I do." Witness said, " You're a pretty fellow to allow me to go to the expense of hiring traps, and going out to soe you to advise }ou as to the" still of the market, and never repudiate this before." Fraser replied, " Oh, if you shake hands and cry quits I will shout the price of a new suit of clnthcs, and give you a cheque now." Witness replied th.it he wouM have nothing to do with Fraser's clothes, and would have half the profit- o: nothing. Witness wei t straight away from Mowat's ollice ty Mr Julim, to his solicitor.

Cross-exainir.ed : Witness would swear that defendant never aiid, "I lijust luvo a stamped agreement, as I have been bitten once before,1 Iho discount charged by witness on the bill given by defendant was 10 por cent. Witness made a ]>rofit of 2 per cent, on the bill, the bank rate of discount being 8 jnr cent. Nothing would have thus been taken out <d defendant'h pocket, because witness could have allowed fur it a hen a settlement toolc place between him ana Fraser.

This closed the plaintiff's case,

A. C. Fraser, the defendant, said he recollected being at Otepopo at the sale of growing crops on January last; that 100 acres were first orl'ercd, and witness offered £'2 ss. Somebody bid £2 4s, and the lot wa3 with(|ran-n. iO acres were then pm) up, and witness ottered £2 Os, for which if was knocked cjown to him. His was the only oitor. Uutchingoii was pissing sonio time afterwards, and witness said to him, "I'll take the rest of the oats at the same price, and save you commission." Maude was standing by, and he Slid, " Come, (jpine, Fraser, don't deprive me of my commission." He replied, "No fear of that—but don't try on any more of your 30 per cent, commission." Maude then came to where witness and Hutchinson were standing and he s id witness ought to buy the oa's. Witness then iaid he was buying them from Hutchinson, and Maude said again, " JDon't, do me out of my commission," and agreed to go in halves with witness. Witness agived to it, and wanted a deed of partnership limited to that transaction to be drawn up between them. Maude objected to that, as such a deed would be very expensive; but witness replied that 1)0 Hurt have a stamped letter, as he had been taken in in a similar tvansacv'mn mice before. Maude then said, "It's all right; I shall hive an acleptanee for four months and the stamped letter re idr when you come to Oamaru." When the 100 acres it oats were first offered Maude agreed to take witness's acceptance for four mouths. Witness considered himself the purchaser of the whole lot of 100 acres. When witness went to Oamaru Maude persuaded him, with uiucli difficulty, to give an acceptance for three months, instead of four months as fir^t arranged. Ho tUen wrote out a receipt for the 143 acres. Witness then said, " I want this .--tamped letter from yi-u." He said. " Oh, it's all right." WUneij-i Jvp'ied', "But 1 must have the starappd letter, bpcausp I'm 'bound by this acceptance. I must hive the fetter pr no partnership." Maude then agreed tosend the letter byp ist that night. Henever mentioned anythingabout calling at the office again to sign the agreement. About three weeks afterwards witness saw Maude opposite the Court House. He was with Warren, a bank manager in Oamaru. Witness said, " You haven't sent me that letter yet, Mr Maude." Ho replied, "Call down at the office in about half an hour and I will Jjave it ready for you " Maude was at this time standing oppn«ito the Court House, and witness went forward to him. Maude did not cross over the street to speak to witness. Witness went down to Mavide's cilice about an hour afterwards and waited there for twenty minutes without seeing Maude. Witness eilled again durimr the day and was told by Maude's brother that he had pone in Taipo. Witness remained at Oamaru, in the immediate neishbourhood of Maude's office, until 8 o'clock, but did rot succeed in seeing him. Witness was in Maude's office six times that day. Witness wanted to sign the ayreement, and to c,et some money for harvest work. Wifness denied entirely tfiiit when the pats y f cre sold bj-'a.i}cfion')|raude tried to induce anybody tp go into jjaV>tnei:shjp with witness. Witness denied whplly fhat Maude saw him on the first day he said he went out to Otepopo to see witness after the sale of the oats. He went out of his house when sent for, but Maude wa-5 then driving away. The next time witness saw Maude was about eight days afterwards, when he eamo out with Warren. Maude sail} fo him flu tha^ i ccasion, " Shall I offer the oats for sale ?" Witnpsg rpplipd, '.'. > ever injnd, l'l] go to Oamaru and sell them myself.'' Tliivt" was all that passed. There was not a word pf truth in what Jl:iude had stat'd as to his having told witness p;i that occ.iBlon t] ( ftt |)p went up in consequence of further excitement in thp pat inarkpt, and f"r tho purpose of warning him not to sell. Rome time afterwards Maude saw witness in Mowat's ofiice, and said to him, " I understmd, Fraser, you're going to stick to the oats yourself.1 Witness replied that he thought he had a'good right to do so, as he had bought and paid for them, that the conditions were that Maude should pay half the cost of harygstintr, ai|d enter into a stamped, agreemont, but t-Hfit |;p had fallfid to fulnl them, And could not expect a share hi tho oats. Maude then became very abusive.

Cross-examined : Witness had many joint ventures in the district. Ho had had a written agreement in two of those instances. In another instance witness lud to his cost no written agreement. The other joint ventures were made with witness's own brother, and he did not think an agreement necessary. Witness understood that ttio stamped hittoi! \yni (.o be signed by Maude only, and that tho hitter wus to have no w> itteii agreement. When Maude and W-rren visited witness in the country the o.its were under offer to Mowat. Witness had had a transaction three or four ye^rs ago, when Maude charged him 30 per cei^t. per annum commission. Ho wanted to get 5 per cent, commission for an acceptance, and 2i per cenf. Thq Court then adjourned till ten o'-clpck next day (Satyrdnj.),- " ■ ■"