COURT OF APPEAL.

Otago Daily Times, Issue 6503, 15 December 1882, Page 4

COURT OF APPEAL.

The following is the judgment in the case M'Kay (appellant) v. Connor (respondent): —

This is an appeal from a judgment of Mr Justice Williams, discharging a rule nisi for a new trial herein. There haying been already two trials in this matter, with practically the same results, the appellant must make out a very strong and clear case before this Court would order a third trial. (Fox v.'Clifton, 9 Bing., 117.) The grounds on which a third trial is nought are threefold—viz., that the verdict was against the weight of evidence, that certain evidence was improperly admitted, and that the learned Judge who presided at the second trial misdirected the fury. Before a new trial could be granted on the ground of the verdict being against the weight of evidence, the preponderance must be clear and overwhelming. The main question in dispute between^ the parties was as.to the right of the plaintiff_to charge against the firm payments made by him to Stevens, and on account of timber transactions. The plaintiff swore distinctly to having: made thesepayments(whichindeed was scarcely disputed), and to have made them on tho firm's account and on account of the firm's business transactions. No evidence to the contrary was given except the correspondence between the parties. From that correspondence it was argued on behalf of the appellant—first, that a dissolution of the partnership took place in December, 1874, and therefore that all the transactions of the plaintiff after that date which were not merely realising the assets of the firm ought to be excluded from the plaintiff's accounts. Now it is true that from the correspondence may be gathered proposals for a dissolution and expressions of willingness to dissolve, which, if the question of dissolution were still at large, might induce us to fix the date of agreement to dissolve at a somewhat earlier date than that of thfi decree of 4th July, 1879, but we think that the consent of parties to that decree for dissolution " as from that date " binds the parties and the Court, and that the learned Judge in the Court below properly admitted that decree in evidence. But it was further contended that even assuming that as the date of dissolution of the co-partnership, the timber and other transactions entered into >y the plaintiff after 1874 were not assented to by the defendant, and that he ought not, therefore, from the nature of the original partnership agreement, to be charged with them. Now it is true that the original partnership was only in regard to such enterprises as the partners might agree upon, but from time to time that original agreement was evidently drifted away from. Each partner seems to have gone into anything he thought would pay without consulting the other, .and a sort of general, rather than a special partnership in denned and agreed-on transactions seems to have practically resulted. The timber business, which Stevens was sent by both partners to inaugurate, in the first instance, as an accessory of their New Zealand contracts, seems to have drifted into a general timber speculation,. of which neither of the partners had much knowledge, and over which neither exercised much control. Stevens, as their agent, took the whole management of this business on himself, and although the defendant was in 1874 dissatisfied with his conduct before plaintiff's return from England, yet he took no steps to remove him or to put a check on his unsatisfactory proceedings. Nor did the plaintiff upon his return, or after receiving the letters of the def( ndant repudiating liability for the continuance of this timber business. In these circumstances it was quite open to the jury to find that all these timber transactions were partnership transactions, although,- perhaps, some of the members of this Court might havo been inclined to come to a different conclusion.' It was_ a question for the jury, and two juries having come to the same opinion, we do not think that their verdicts should be disturbed. It was further argued, however, that plaintiff by his own admissions had been guilty of such a degree of negligence in paying to Stevens the amounts sought to be charged as to disentitle him to claim them. No doubt he has been guilty of egregious negligence, but it is impossible to say now much of the loss incurred was attributable to that negligence. When plaintiff first took charge in Western Australia, it is admitted that the firm was then is serious difficulties (defendant's letter, 18th March, 1874), and we cannot determine how much of the ultimate loss is attributable to the state of things when he took charge. The expressions in some of his letters to the defendant as to the debts in Western Australia having been cleared off do not necessarily mean that all losses previously incurred had been wiped out. The sums paid to Stevens by the plaintiff were paid to Stevens aa the agent of the firm, and, as plaintiff believed, were expended by him in the business of the firm. If the defendant wished to charge the plaintiff for losses occasioned by his negligent management of the firm's business, an issue, should have been submitted to the jury as to whether plaintiff had been guilty of such negligence, and if so,. what amount of loss had accrued to the firm in consequence. The Court, below may perhaps take the plaintiff's negligence into consideration in considering tne ques tion of costs, but it is too late to raise it in any other manner. Taking the whole circumstances into account, we are not prepared to Bay either that there was no evidence upon which the jury might not have founded their verdict, or that the evidence on behalf of tho defendant was so overwhelming as to lead us to override this second verdict. Nor do we think that the evidence objected to was improperly admitted. In a complicated matter of this kind it is difficult to say that any facts which at all throw light on the matter should be withheld from the jury. The objections taken to the misdirection of tho learned Judge who presided at the trial arc virtually dealt with in what has been already said as to the weight of evidence. The misdirection objected to is principally non-direction to the jury as to the time and effect of the dissolution of the partnership, and as to the effect of the plaintiff's own admissions of negligence. On the whole, we think that tho judgment of the Court below must be affirmed, and this appeal be dismissed with costs.