SUPREME COURT.

Poverty Bay Herald, Volume XXX, Issue 9848, 15 September 1903, Page 3

SUPREME COURT.

81-ANNUAL SITTINGS. (Before His Honor Mr Justice Cooper.) PRICE V. DELAUTOUR. The hearing of this case was continued in the Supreme Court yesterday afternoon. James Price, plaintiff, stated defendant, did not tell him what he intended to do with other people regarding the timber on Waihora. Plaintiff did not consent to defendant dealing with the timber on Waihora D. ' He did not know the terms of any dealings that defendant may have had with the Karaka Sawmilling Company in connection with Morns aud Orr's timber rights. Plaintiff had heard that defendant had asigned some portion of the timber rights in Houamatuku No. 2to a Mi* Gibson. He liad been offered £60 as payment for his rights on Waihora D, but witness refused it. When defendant settled up for the purchase of Waihora in November, 1902, he admitted that plaintiff had an interest in Hou- j amatuku. He took no steps in obtain- ' ing timber rights from Horsfall, Orr, and Morris, except as a partner. j By Mr Nolan : There was no prior ; agreement, in Houamatuku 2 to the one produced, dated August 12th. The signature on the,document produced by Mr j Nolan was witness's, but he did not remember seeing the document before. | He was not present when any agreement in connection with Houamatuku was can- | celled. Witness did not know that the ! second agreement (read by Mr Nolan) was in existence. Plaintiff could not remember being present in defendant's oflice on August 23rd, 1902, when both i agreements were cancelled. Defendant and plaintiff went to Mr Morris's by themselves on one occasion, but on other ■ occasions some of Mr DeLautour's friends were present. Plaintiff first made arrangements in regard to a partnership when he first put Waihora D into defendant's hands for sale, the terms being £1600 cash and a half share in the timber. Witness asked defendant to get a deed of partnership drawn out, but de- ; fendant stated that Mr C. A. DeLautour was too busy. j James Orr, farmer, Rangatlra, stated he had negotiated for the sale of the I timber rights on his property with ' Messrs DeLautour ' and Price. They fin- j ally agreed to a royalty of ls a hundred for the timber. This was in April 1902. Plaintiff and defendant had offered 9d for the royalty, but Mr Nolan, acting for witness, finally arranged for a shilling. Mr Price had not himself stated he would give ls. Wiliam Morris, station, owner, Karaka, stated that he had received an offer of 9d from Mr Price as royalty for his timber rights, and Mr Bell gave him an offer of ls. Defendant afterwards told witness that Bell would not stand iu their way if he got weekly wages. Witness arranged with Mr DeLautour to come down to Gisborne to see if Mr Bell consented •to give up his rights. Mr DeLautour told witness when he arranged for the purchase of the timber rights at ls royalty that Mr Price stated Mr Bell had consented. ' By Mr 'Nolan : Mr Price, introduced Mr DeLautour to witness. When witness came to town Bell stated he was satisfied and told witness to deal with Mr DeLautour, with whom witness completed arrangements. At this stage the Court adjourned until to-day. The hearing of this case was continued at 11 a.m. to-day. For the defence, Mr DeLautour stated that before opening his case he proposed to move that plaintiff be non-suited on the ground that no partnership between , the parties had been proved. He submitted there was no evidence of any . kind to connect defeudant with plaintiff , as regarded the offer re Waihora. Also, there was no evidence in plaintiff's favor in relation to Houamatuku other than the offer of August 12th. That agreement did not refer to timber at all, but simply provided that Horsfall was to , sell his interest tojplaintiff and defen- : dant for £200 in Houamatuku.. 'There ; was nothing in ;t about timber, or any ' arrangement tliat plaintiff and defendant were to enter into any partnership as sawmillers. Regarding ; Houamatuku,. there had never been any. dispute remiT_mg flint land, it being intended that it was to be purchased jointly. A' Eartnership, or at least a trust, must ' e proved by plaintiff in connection with Ins claim, but this had not been done. Mr DeLautour proceeded to quote authorities iu support of liis contention, : and then read from the correspondence between the parties. ' Mr DeLautour, continuing, stated that all the letters from defendant to plain- ' tiff were emphatic denials of any partnersliip. If there had been such mate- ' rial claims outstanding as Orr's and Morns they would expect to see some reference to them hi the correspondence. All the evidence produced yesterday amount- ; ed -to the fact that plaintiff rode about the country with defendant. Having disposed of his interest in Waihora to defendant, tliere avos sufficient iu the fact of the friendly relations between the parties to accouut for plaintiff endeavoring to assist in obtaining other timber rights. In the box plaintiff had been pressed to give a statement of the alleged partnership, but could, give none. He knew nothing about the .documents and could give no coherent statement of the alleged partnerslup. Mr W. L. Rees, in reply, dealing with tlie proof of partnership, said the evidence in this connection was a general one. ° His Honor said, regarding Waihora D., it was quite clear from the plaintiff's own evidence and the correspondence there was no partnership. Regarding the others, it was a question whether • tliere was a power of arrangement entitling plaintiff to succeed in a claim for partnership. Mr Rees said that in Waihora D. plaintiff was entitled to relief and to accounts. His Honor pointed out that the form ] of plaintiff's action was that plaintiff ! was entitled to one-half of the proceeds of the timber. . As he read the correspondence there was a sale of Waihora to defendant, plaintiff to receive a royalty. If plaintiff's claim of 6d a hundred royalty were not settled, then plaintiff would be, able to claim a statement of accounts. To his Honor's mind there Tvas evidence' of a partnership in regard to Orrs and Morns', although hot in regard to Waihora, and he could not non-suit at present. The evidence, of course, was unsatisfactory, and he could not say at present what weight he would attach to the evidence for the plaintiff. He would refuse a non-suit. Mr DeLautour said the defence set up was a denial of any partnership, and that all matters had been settled between plaintiff and defendant. Tlie royalty had been tendered to plaintiff, but had been refused. Tlie agreement of August 12th had been cancelled, and any agreement made was in pursuance of fresh arrangements. ° Edward j Lionel DeLautour, commission agent, stated that Waihora D. was put in his hands by plaintiff for sale. He tried to dispose of it without suecess, and finally purchased it liimself. Ihe purchase partly arose through Mr lnce asking him to pay the rates and taxes if a purchaser could not be found. Witness agreed to pay defendant £1600 for the property, and give liim half of the ls royalty, Mr Price reserving four acres one rood for himself. It was afterwards arranged that witness should give plaintiff £40 for the four acres one rood- making the total price of the land £1640. Houamatuku was not fenced off, and as Mr Price had his sheep running on it the question of fencing arose. Steps were taken to purchase Houamatuku, '' and finally Mr Price agreed that the lease should be made out in defendants' name, Mr Price financing. This was about August 12th, the date of the agreement. Plaintiff offered witness a cheque for £84, which witness told him to make ' out in favor of Pomare Horsfall. Wit- ' ness cashed the cheque and handed it to Mr Nolan when the lease was made 1 out. The cheque was drawn on August i 12th. and cashed on the 16th. Regard- ' ing Morris' timber rights, defendant ar- ' ranged with Morris himself. Price told , witness that, he had been some time be- ' fore arranging with Mr Morris for that i timber. As nothing had been done in that, a man named Bell had been trying i to make arrangements. Witness found i that Morris had made a promise to Bell, and would not go back on his word unless witness could get Bell to give it up. Finally witness made an arrangement to give Bell 12 months' work if lie stood out, which satisfied Mr Morris. This had been carried out until lately altered. Price had nothing to do with this contract with Morris. After witness had seen Mr Morris he went up to Orr's, but could not come to any arrangements. When witness came into town and saw Mr Nolan, Mr Orr's solicitor, and ultimately made arrangements with Mr Nolan regarding the bush. Price had nothing to do with this. Apart from the royalty on Waihora D. and the timber rights which Horsfall was acquiring, witness made no arrangements with Price. By Mr Rees: After the sale of Waihora D. witness made no arrangements with Price, for obtaining other timber rights and opening a sawmill. Price was always asking witness when the mill would* be started, as he had sold witness his bush and would get his royalty. Price suggested King's mill, wliich was juiced at £1050, but witness considered it was too much. It was suggested that timber on Houamatuku would come in for the mill. .Other mills were threatened to be erected in the valley. "I think you were going to put up a mill these yourselfj Mr Rees." Mr Rees : Don't drag me into the case. Mr Nolan is quite enough. Witness, In further evidence, stated that Mr Price lent him the money to no into Houamatuku, and plaintiff was "to stand in" witli defendant, or to take a part." V

IN CHAMBERS.

This morning in Chambers, the case of Albert Elliott (Messrs W. R. Robinson and W. L. Rees) v. Thomas Hollywood and Edna Eliza Hollywood (Mr C. A. DeLautour) was heard. This was an application by defendant that the action should be dismissed on the ground that two separate causes of action were joined in the statement of claim. After hearing argument, His Honor dismissed the atpplication, and ordered the case to be set down for Thursday next, defendant to file a statement of defence in the meanwhile. In the matter of the will of Percivnl Barker, deceased (Mr DeLautour), His Honor granted that on behalf of the beneficiaries named in the will "tenants for life," power be given to dispose of the Wliataupoko property at not " less than the land tax value.