JOYCE V. KINROSS AND GRAHAM.

Poverty Bay Herald, Volume X, Issue 1831, 26 January 1883, Page 2

JOYCE V. KINROSS AND GRAHAM.

His Honor gave judgment in the above case this morning, as follows : — This is an action brought to recover the sum of £139 55., being the principal and interest due on a bill of exchange in the following form— Wharaurangi, December 27th, 1877. Mr. Fraser, Please pay Mr. E. P. Joyce the sum of One hundred pounds, and charge the same to my account. £100. (Signed) Pi Tau. fstamD ) Witness— Lk Pattrick. t awm P-> (Indorsed.) December 31st, 1880. Accepted and acknowledged by me as correct. Duncan Fraser. Witness — W. Summers. In the year 1877, when this bill was given, Duncan Fraser was carrying on the business of a sheepfarmer, in partnership with the defendants in this action, but in his own individual name. Fraser had the sole management of the ■sheep-farming business, his co-partners, Messrs. Kinross and Graham, carrying on an independent business as merchants, in Gisborne. In December, 1877, the firm of Duncan Fraser were indebted to Pitau, one of their landlords, for rent due in respect of the sheep run ; and, according to tne plaintiff's evidence, the plaintiff, at Fraser's request, supplied Pi Tau with goods, Fraser undertaking to stop their value out the rent. The plaintiff then obtained Pitau's signature to the bill now sued on, and about a month afterwards presented the bill to Fraser for acceptance. Fraser declined to accept, and alleged as his reason that Pitau was indebted to the firm, and that the bill must therefore be held over for a time. No further presentment for acceptance or payment was made either to Fraser or to his copartners until the month of Dec, ISSO, although the matter appeared to have been mentioned on several occasions, both to Fraser, and to the defendant, Mr. Graham. In 1879, misunderstandings arose between the members of the sheep-farming firm, and proceedings were taken for the settlement of the differences between them. — The nature of these proceedings are not in evidence, and are not material to the decision of the action. In December 31, 1880, Fraser ultimately accepted the bill in the form already cited, giving as his reason for so doing " I accepted it at last because I thought, as differences had arisen, it was better to settle with Joyce." In October, 1881, Fraser became bankrupt, and the plaintiff proved against Fraser's estate for the amount of the bill, and which proof, however, he afterwards withdrew. The plaintiff seeks in this action to recover the amount from Fraser's co-part-ners. In order to entitle the plaintiff to succeed, it is necessary that he should rebut two presumptions of law which are raised against him. 1. This being an association of persons for farming purposes, there is, prima facie, no implied authority for one member of the partnership to negotiate bills of exchange so as to bind his co-partners. 2. The business being carried on in the name of an individual member of the firm, and the bill having been accepted in that name alone, the transaction must be presumed to have been entered into by Fraser in his individual capacity, and not on behalf of the firm. If this second point were the only one raised in this case, I should be inclined to say (I do not speak positively) that it ought to be decided in the plaintiff's favor. The law on this point is laid down in the judgment of theC.P.D. in the Yorkshire Banking Company v. Beatson, a case relied on by both sides in argument, 4S L.J., Q., li., 422, in the following terms (p. 432) :— " In the last edition of Lindley, on Partnership, p. 342, the learned author lays down the law as follows : ' Again, persons may carry on business in partnership in the name of one of themselves, and if they do they will be liable on bills accepted by him in that name if it was in fact used to denote all the partners, but not otherwise.' This doss not mean that the liability of the fi n depends simply upon the question whether the person accepting has in his o.vn mind an intention of improperly making his p.ivtners liable on bills accepted for his o.vn accon- nocL.tion ; the meaning is that the firm will be bo and if the bill was given for the partners'iip purpose, or for what purports to be a partnership purpose, and was not known to be otherwise by the person taking the hill." Now, in this case, I think that looking at all the circumstances of the transaction in respect of which the bill was given, it must be held to have been for a partnership purpose. It is quite true, as Mr. Brassey contended, that the purposes of the partnership did not include the supply o f goods to natives ; but on the other hand, Fraser in suggesting or undertaking that the value of the goods supplied to Pitau should be stopped out of the rent, purported to be acting on behalf of the firm, and the plaintiff, when giving credit to Pitau, relied upon the security of the money due from the firm to Pitau. Tf, therefore, Fraser had authority to negotiate bills, at all, on behalf of the firm, I should be inclined to say that this bill was negotiated for a partnership purpose. But had he any such authority ? Prima facie, no. This is a farming partnership, and, therefore, if any such authority existed, it must either have been express — of which there is no evidence — or implied, from the special circumstances of the case. Now, what evidence is there here from which such an authority ought to be implied ? Fraser, it is said, had been in the habit of drawing on Messrs. Graham and Co. (/.('., the mercantile firm of which the two defendants were the partners), for station accounts. This, however, seems to me a very different thing from a general authority to negotiate bills. Messrs. Kinross and Graham were members of two independent firms ; in the one they were the only members, in the other they were in partnership with a third party, Mr. Fraser. Advances, no doubt, had to be made from time to time to meet the current expenses of the sheep station, and as a matter of mutual convenience it was arranged that Fraser, who managed the sheep station, should draw on the Gisborne firm for the amounts required. It would be a very wide, and I think unwarranted assumption, to hold that from that arrangement a general authority could be implied, and the same remark applies to the banking account to which reference was made in the c% r idence. Great stress has been laid upon certain admissions alleged to have been made by Mr. Graham, and also by Mr. Goudy, who as liquidator of the partnership estate would, I suppose, be competent to make admissions in some cases, so as to bind the parties whom he represented. As to Mr. Graham's admissions, what do they amount to? The plaintiff says that he made a distinct promise to pay ; but this, as explained by Mr. Graham himself, takes a very different and I think more probable complexion. He admits having said he was afraid he was responsible, and, if so, would rather pay than take the matter into Court, which seems a prudent disposition on the part of a business man, who prefers not to enter into a

contest when he is sure to lose, but does not amount to an admission of liability. As to Mr. Goudy's statements, I see in them nothing more than the expression of a desire to settle the matter amicably. I do not think they can be construed into such an admission as, in the absence of other evidence, could render the defendants liable in this action. Another circumstance must not be lost i sight of. At the time this bill was accepted, differences had arisen between the defendants and Mr. Fraser, and therefore, even supposing that at the time this bill was first presented for acceptance Fraser might hs-ve had authority to accept on behalf of the firm, I doubt very much whether such authority could be held to subsist at the time of the acceptance. It is alleged in the pleadings, that the plaintiff obtained this acceptance in collusion with Fraser, and in fraud of the defendants. Although it is not necessary for the decision of this case, to express any opinion on this point, I cannot refrain from saying that the evidence does not seem to me to support the charge. The plaintiff was, no doubt, anxious to obtain the money that was due to him by somebody, and he adopted this course with the idea that, by so iloing, the defendants would become liable. Although he was in error in that respect, and has failed in his object, I do not see anything in his conduct that is inconsistent with perfect bona fdes on his part. The plaintiff will be nonsuited, with costs, £8 9s.