MAGISTRATE’S COURT.

Otago Daily Times, Issue 20583, 5 December 1928, Page 15

MAGISTRATE’S COURT.

Tuesday, December 4. (Before Sir J. B, Bartholomew, S.M.)

Judgment was given by default in the following cases:— Dunedin City Corporation v. Thomas W. Dolmnore, claim £5 7s lid, rates due, with costs (£3, , 14s); same v, R. M. Robertson, claim £ls 18s, rates due, with costs (£5 11s) j same v. Sydney L. Wood (East Taieri), claim £4 Os 9d, with costs (f 3 7s); M. E. Maxwell v, Janies Trainor, claim £l3 Bs, rent due, with costs. (£2 16s); Thomas D. Jamieson v. George Haworth (Pottobello), claim £57 16s lid, good supplied, with costa (£1 13a 6d); John F. Wilson v. Gilbert William Dodds, claim £l3 7s 4d, rent due, with costs (£2 16s); New Zealand Breweries, Ltd., v. B. H. Richardson (Wyndham), claim £2, or the return of two five-gallon kegs, with costs (£1 5s 6d); C-i ter’s Motors, Ltd., v. Francis Robert Turner (Outram), claim £SO, on the purchase of a motor lorry, with costs (£4 Is 6d); Hogg and Co. v. Robert Watt Brown, claim £3 16s 4d, on an account stated, with costs (£1 4s 6d); Dunedin Industrial Co-operative Society v. John William Jacobson (Tahakopa), claim £6 9s 7d; good supplied, with costs (f 1 12s 6d); Wanaka Motors v. Matthew Winders (Pembroke), claim £lB 11s Sd, good supplied, with costs; (£2 14s); Reddell's, Ltd., v. Frederick MTSay (Cl nton), claim £5, goods supplied, with cost.-; (£1 3s 6d); M’Callum and Co. v. J. M'Narey, claim £l2 11s 6d, goods supplied, with costs (£2 14s); William James Bevis v. R. C. Johnston, claim £2, on an 1.0. U., with costs (£1 5s 6d); Davidson, Gillies, and Co., v. Roy Matheaon (Kaikorai Valley) , claim £ls 4s Bd, work done ancl poods supplied, with < costs (£2 16s); H. Wise and Co. v. Eric James Green (Wairoal, claim £2 2s. charge for advertising, with costs (£1 3s 6d).

’ AN INVOLVED CLAIM. Alexander H. Smith (carpenter) v. Graham Fox O'Neill, claim £2OO, advances made and wages due. Mr L. G. Cameron appeared for the plaintiff and Mr A. G. Neill for the defendant.

The point at issue was whether Smith was a partner in a duco painting business at South Dunedin or simply whether he had lent money to the concern. Plaintiff, in evidence, said that he met the defendant in 1927, and fie told witness that he had a good business proposition. Witness took it that O’Neill was the proprietor of the concern. O'Neill said he had £l5O in the business, and witness agreed to put in £BO. The money had been , advanced as a los-, or as a paymenJt if _ witness desired to go in for a partnership. The defendant told him that he had rented premises from. Anthony Heffernan. Witness commenced working for the firm, and he was to receive £3 per week. He looked on W. E. O’Neill, the defendant’s son, as the manager of the business. He was paid his wages regularly by W. E. O’Neill for about three months. After that he received his wages very irregularly. In March, 1.925/the defendant had come into the business, taken the books away, and said he would close the business up. Witness had handed in another £2O to help the business. He had had nothing to do with the books of the concern when the business got,into trouble. Witness agreed to forego his bach wages. It was for a portion of the back wages he was now suing. Witness gave further evidence to prove he had never had a partnership) in the business.

In cross-examination witness said that he only considered W. E. O’NeUl as the manager and G. F, O’Neill, another son. as the foreman. W. E. O’Neill used to Order material, after consulting with the defendant. Witness had never : suggested that he was being robbed by anyone. He was r in partnership with W. E. O’Neill at the present time in a similar business. He had not signed the minutes of a meeting held at the office of Neil M'Namara, the secretary of the firm. If his signature was there he did not know how it had got there. Mr Neill then nroduced thc minutes, and .witness admitted that his slcrnature was at the foot of the document. The minutes stated that witness agreed to foipgo his back wages. Witness said he agreed to forgo his back wages because he did hot want his employment to cease altogether. He was drawing about £3 per week; He had been prepared to forgo £BO in back wages, in order to secure £3 per week. Certain moneys drawn out, and said to have been paid to firms, and which had not been received by the firms, had not been drawn out by witness. In October of this year the bailiffs had taken possession of the premises. Re-examined, witness said he had not paid the £BO to W. E. O’Neill. The money had been paid to S'. 0. O’Neill. His wages were handed to him by W. E. Q’Neijl. He had started his present partnership with W. E. O’Neill on November 10, 1028.

Walter Ernest O’Neill, car painter, saidthat he had got a start in Oameron street, South Dunedin. Wit".<*is was an undischarged bankrupt, bat his father said he would fix that. His father had mentioned Smith’s name, and in March, 1927. Smith, he was informed by his father, had advanced £BO. The money was paid to his father. The goods for the business wore bought in the name of G. F. O’Neill, and G. F. O’Neill handled the bank account and signed the cheques. Witness never signed a cheque. His father .had made all the arrangements for putting the new premises in Broughton street in order. In further evidence witness said he regarded his father as the proprietor of the concern. To Mr Neill: In March he was free to go into business, as he got his discharge from bankruptcy in February, 1927. His father paid the costs of his discharge. The £BO received from Smith had been paid into the business. For 10 months no rent had been paid to Heffernan. Mr Neill said that it was quite clear on the evidence that there was an agreement for (either a loan or partnership between Smith and W, G. O’Neill, and it had not oeen established in any way that G. F. O’Neill was the proprietor of the concern. Counsel held it was entitled to ask for a nonsuit.

His Worship said it was not a case for a nonsuit. They had had a pood deal of evidence with regard to ambiguous situations, and there was a certain amount of evidence to support the claim. Graham Fox O’Neill, fruiterer and confectioner, said his son had been away 10 years, and they had never heard anything of him. He did not know at the start that his son was an undischarged bankrupt. Witness gave details of the agreement signed by Smith under which Smith paid over £B6. All this money went into the concern. He had nothing to do with the running of the Duco painting business, Witness had become very annoyed .when he had seen in the newspapers that judgment had been given against him in the court for goods supplied to the firm. That was the first he knew about it. In January of this year Smith had come into witness’s shop and 1 had asked him to get Walter out of the business/ as he was robbing them right and left, and put in William. Smith had. never asked him for a shilling, and this was a surprising thing if ivitness really owed him money. Cross-examined, he said he too’ the books away from the business after he had seen his name in the newspapers. Smith had aske ’ him to take them away. The trouble had arisen through Smith asking witness tc protget him. His son, Walter, was not telling the truth if he said he (Walter) had not received the £BO. Witness had paid £4OO into the concern. Neil MacNamara, accountant, said, ii the course of his evdence, that Smith knew Walter o*Neill was his partner. Cross-examined, witness said that ther was no definite arrangement between himself and Smith and Walter O’Neill that he should keep'the books. They simpß consented that he should write them up. The magistrate said he did not warn any further evidence. It was hopeless for the plaintiff Smith, in view of the materia’ put before the court, to contend that therwas no nartnership. His Worshir traversed the evidence, and said that it was sufficient for him to sav that then was a partnership between Smith and O’Neill, jun., whatever the position of O Neill, sen., was. He was not concerned to solve that position at the present tinn Plaintiff must he nonsuited. .Solicitor. ' costs £lO and witnesses’ expenses 30s.