TO-DAY'S PROCEEDINGS

Poverty Bay Herald, Volume XXXVII, Issue 12410, 21 March 1911, Page 5

TO-DAY'S PROCEEDINGS

i PAIRTNERSHIP CtLMM. The first case taken was that of -^f red Friers, of flisborne. fisherman, plaintiff (Mr Burnard) v. Thomas Bell; of Giabprne, fisherman and trawlerowrie*, a&fandant (Mr Stock with Mr R H. Mann), claim for a declaration of partnership and dissolution of partnership as on December 6th, taking of'accounts, anil the determination of the rights of plaintiff; or, Alternatively, £130/ for, balance bf services rendered aadliin lieu of notice. ; The statement* bf claim, which was Tead by Mr Burnard 1 , sets out that . plaintiff and defendant Verbally agreed to enter into , partnership as fishermen' and to shore the net profits. In pursuance of the agreement they both proceeded to Napier, and through the m BtMHttentAh'ty of thfc ' plaintiff defendant purchased' the trawler Swan: On his return »frotn Napier plaintiff fitted out the Swan and commenced fishing operations, continuing until December 6, 1910, when defendant wrongfully terminated the partnership and refused to allow plaintiff on board the yessel. The plaintiff has drawn the aiitk of £16 out of the partnership. The accounts had not been -taken, and defendant had not receive*! 411 moneys due to him. Plaintiff- a therefore prayed for' a declaration thftt> the Iplajntiff and the defendant werd Mi ' December 6, 1910,. partners; that- the said -partnership be declared to have been dissolved on December 6j 1910; that the accounts of the partnership be taken, and the business thereof wound up by, the Court; that the rights *>f. the- plaintiff with regard to the matters referred to herein may be determined; for such .further and other Relief m the premises as shall seem just. an the alternative the plaintiff says t "The plaintiff for and at the request bf the defendant performed services for the defendant m negotiating the purchase of the Swa,n on behalf of the defendant and m fitting out the said vessel ,' and acting continuously as master of the said vessel and m carrying on trawling '"operations between the Bth day of September, 1910, and the 6th day of 'December, 1910, on which day thfi plaintiffs employment was terminated by the defendant without notice. The plaintiff received from the defendant the tfum of £18 ,jn respect of all the said services, and no other sum. < The said services were reasonably- worth £82 m addition to the amount paid by the defendant to. the plaintiff and the plaintiff' was entitled to a reasonable notice. v In his statement of defence, defendant denies that < thei^e waa fcny partnership agreement. He admits that they' both went to. Napier, but denies that the Swan was purchased through the instrumentality » of plaintiff ; but says' he engaged plaintiff to go to Napier m connection with the purchase, and arranged to 'pay him 30s 1 and expenses for such services^ and that he did pay plaintiff £9. Defendant admits that plaintiff fitted out the Swan * and commenced trawling, -but says plaintiff was working for him on weekly wage. Defendant further states tha,t „. plaintiff on December 7, 1910,/ *efuse.d 'to continue his .duties unless the defendant allowed him' a share m the, business, which defentfa^t f deisHned i$ do, anl.Hhereupoh the plaintiff refused jio continue any. longer m the defendant's employment. The defendant then paid , plaintiff £28 , for his' services. As a further defence,

defendant says that' plaintiff fajsely represented' himself as being duly competent and qualified to take charge of theifrawlef, and the Marine Department refused to aUowthq plaintiff to act as master and by reasons thereof .defendant had to engage another person. Mr 4 Burnard'" said that the plaintiff was a thoroughly competent fisherman, which th© defendant could not claim to be. The ..former was m negotiation foi> a/ :pa£tiie&hiti, wjsn f 'defdpdan^ toiggeatetl itnai plaintiff should go inio -partner - ship twitlThun 10-tyer to provide' the';, vessel and to hawk the fiatf; and plaintiff should give hii Services aa ai working partner, hiß share of the profits £o . go towards paying his ahare s^^ ilie tSpital. ' The vessel was purchased through plaintiff's inßtquinen* anlhife and brought to Gieborne by him! Asjraefendaiit would not do anything m regard to 'submitting the agreement to piper »y breach occurred arid gf^dually wideneJl. 'Plaintiff threatened to throW th^r defendant overboard .If* he 'iftterfered ■vTi^^the work. Gorte^poridenCo ensued » d^ffendartt/ giving plaintiff notice of tdf nfinaitron of' engagement. ' [ : ' '■ Counsel ''wont on to Bubmit there could be , lip f doub^. r^egarding plaintiff '» certu BcaJte^ojT service, although such had beeti gf r4ißg.d by the ' Department recently: TbißJ .hjqwever,.' t waa-^ ; . matter to^Mon bje did.not a,ttach any importance ab> it coiuld i only incidentalJQr arise. The main question' was as to Whether partnership could- be established^'^nd this, he submitted, would 4be fully borne out by the evidence to b,e called. /Alfred Fft«rs,' • -plftintiff, fishing and tr«wling master, produced certificate of service pnder the Shipping and Beamens' AJoti .', 19(X3,, a. first class engine drivers' certificate , for stationary engines, and also ? a.i certificate of competency for river steamer. He l^ad had 11^ years' service and had ,be«n, five years ''master . . He war at'ptesent' working as an ordinary deck hand on the Gosford. Plaintiff went on to. state t^at prior, to entering into negotiations with defendant he had been negotiating for a partnership for the purchase of a vessel with others. Defendant approached him about Sep-

tomber 1. Defendant asked him if h was true he was negotiating for anothei trawler. He (plaintiff) said jfchat wa» so. Defendant remarked that having dissolved partnership with MV Franks, of the Gosiord, he was thinkirjigof enter ing into partnership > for the purchase oi another vessel. He desired to artangt with. -a person with previous expefiehci ajLthci work,. and asked if there- was anj liKWi^jpd of their arranging matterY "between themselves. H6 (plaintiff) r& plied ">jh«>, had beeh negotiating „witji others, arid having a trawler herefvunsuitable for the work he was not then m a position to put money into a con'C9*n of the kind. He could, however, ,hud- a jJarty • who could do' so. DefendaVit stated that having obtained hit money out of the Gosiord, £700 01 "£BOO, he was willing to put the same m a suitable vessel, and come to some arrangement with him (plaintiff) " at a later stage. A few days" later he told defendant he had been considering the matter, and for two reasons had approvIcd of his (defendant's) views, m that defendant had taken, a keen interest m the hawking of fish and would relieve him (plaintiff) of that portion of the ►business, and. by thus coming to an arrangement it would obviate another vessel coming to Poverty Bay and overdoing 'the industry. He (plaintiff) then agreed to. enter into an arrangement with defendant, but on the condition that ho (plaintiff) was to have not less than *, naif interest. Defendant was quite m agreement with the request. Defendant said he had the capital, and was prepared to find the same, and he Tvanted- a man with experience and ■knowledge. They discussed the subject right through. He (plaintiff) was to receive half the benefits of the net work* mg of ibe vessel, but was agreeable ,td accept a barb living, the balance to go towards paying his part of the principal. H£ "mentioned his willingness to pay the. usual interest, six or seven per cent: Defendant said he was quite willing, provided it- was only between the two of them. He then told defendant of the conditions regarding a vessel of- which -Messrs Clare and Clare held particulars as "to dimensions. Defendant was anxious , to complete the sale before anyone else, and they went to Napier together, ; They looked over various trawlers, defendant taking a keen interest m one particular vessel, although double rthe price, -He-told -defendant he did not approve of the same, and although offered. £100 commission if he could effect the sale v recommended defendant not to touch * this" particular vessel. '.^He introduced defendant to Mr CranbjH owner of the ''Swan/ the ,boat they htfd gone to Napier^ purchase; Mir GJranby said the price had gone up to £550, but as he had been negotiating with him before, Mr Cran by agreed to sell the boat for £500. v The sale" was effected two days later. Defendant suggested' they should complete their agrement, but owing' to the shortness, of time they left it over till a later 1 opportunity. After fitting; the trawler out he brought the. boat on to Gisborne. For a short while he did some towing, and continued until December 6. as master of the vessel, and conducted fishing operations. About September 19 defendant was still willing to reduce to writing their. former agreement. A few days later defendant stated ho had taken tho Harbor Board's towing contract, and was going to employ two crews, one to tow m the day* time and the other to trawl at night. He. suggested taking one Cotterill on a quarter share. He (plaintiff) disapprov-, ed of the yproposal, and intimated his disagreement to taking V Cotterill into partnership. Subsequently he met deteridant, and said he wanted an understanding. From what he could gather he understood defendant had told Cotterill that he (plaintiff) was agreeable to taking Gotterill into partnership. Ho told defendant that the - best thing he could do was to pay him (plaintiff) a fair wage from the start and a little commission, and he 'would get out of it, as anything less than a half share would not suit him. Defendant said he was pleased that they had had matters cleared up, and he would see and have the original arrangement fixed up. Defendant stated that he did not want to lose him l-(plain-tiff). He did not see defendant for about a and when defendant came' down, to the boat, he- oould ' 'sec that something was . wrong. Defendant, stated that he had heard a gYeat-.do!*! about his (plaintiff's) s antecedent^ and when asked about fixing, up the agreement defendant Baid m consoquence Qf what he liad heard he did not know how to act. ; They had another discussion later, when defendant said he- had not fixed ur> the matter, as he was a little short of capital and he wanted- to bring m another partner. He asked dofendant why bother about capital; as the vessel was already equipped, and would bring m a return towards paying working expenses. H© 'then asked defendant if he ran the vessel for a month, ' and she showed a profit over and above working expenses, would he (defendant) be willing to comply with their first understanding and -arrangement." Defendant said it would be a more satisfactory position if he (plaintiff) could show the boat was making a profitable return then be would fix »th© matter up: The month was satisfactory, and although, he made several arrangements; to meet defendant he did not succeed m, doing so. The catch for the six weeks totalled 4205 1 bundles. The fish should have, been retailed at Is per bundle, making £210 for the six weel*. The running. of the vessel' would be £10 per week. Of this £5 10b went m wages, and the balance went m fuel, oil, etc. The vessel showed a profit of £150 (not including interest) for\ the six weeks. Plaintiff went on to state that during the 14 weeks he had received J822. Defendant sold all the fish and kept the books: In the end he (plaintiff) had really to force his £2 per week out of defendant, being m arrears. He afterwards asked for a definite agreement, stating that the vessel would: not go to sea until he saw, how these things were going to be fixed up. They agreed to meet at 7.30 p.m. at the post office*. He Waited till 8.45 p.m., and there was still no sign of defendant. He told the engineer 'not " to get .up steam m tho morning, as they would not go to sea. At 9.30 next morning he met defendant m town. Defendant remarked they were rtot out at. sea. He (plaintiff) asked wliy he had not kept his appointment the previous night to come to a definite I arrangement. Defendant explained ho had lost^ his horse, and coifld not find jitt Defendant asked him if ho intended igoing x out, and ho told defendant ho ;wfr» not' going to do so until they had had an understanding. He had. been working 1 for 1 three months m the dark, arid it was time they had some under-Jh^^&^-v "parked that if. !hs'W&ftiH^wW «&& the v\jssi| out ho /would, Moon* get someone whs wfculd. V Pb> ; 'dlsttnlt^: 1 . told defendant that if he put anyone on board, or camff on b6ara the Vessel liimself,' he (plaintiflf w >uld throw them overboard until hi* rights, had. been established. The same* from ■ dof endan^ i srtnWpor'isSncellinlf fits' engagement, ' and warning 1 him from 'impeding the/working of the trawler. He approached his Bolif citors., and ; next day received a letter fromrthe Marine Department (produced). Bolides ithe £22 mentioned, he had received £2 on going*, to Napier, £1" being for the fare. "' His expenses at Napier were, paid. Plaintiff J.went pn,to refer to t>ne| necessity for pr&cticaLr knowledge required m ' the selection of a vessel suitable ' v f on ! Qfiflborne. . He? was at, prosent only receiving £2 10% with the usual commission and overtime/ amounting to £3 6s. ' *' His Honoi}: Ibi, it, a' paying. ■ business. t —With as, h. suitable vessel} of right draught and dimensions, I ctinsider it is a very encouraging business. Questioned as to the brobable earnings for the year, plaintiff remarked .that he, was unable to say,* owing Ho his previous' unfortunate experience.. ,. : ' ... His Honor : Have any fortunes been made at this industry at Napier? — Yes, your Honor, I think so. Hia Honor : ,But are . there not* 4 ! Ibbb boats .at Napier than previously?—^ Plaintiff admitted that' this Was, so, but [the trawlers followed the seasons,, and were, not limited /to . the waters ,of Hawke'o Bay. . > ■ Plaintiff went ;'on to . state, that the captain -of a trawler earned £20 a monthy and up to £25 and £26. Mr Stock :. ! Has any, money been made m iGisborne' at trawling — I could nbt say. • Ib the. 'boat you, are at present working on paying?— ' No. I don't know. I

know fishing is not too flourishing jus! now

Is -the Swan paying? — No, not just now, under Ml' Heirs management, and I know the reason why; Plaintiff; further »cross-examinedj adihitted'that(his\experierice had not been successful; hisYpre'vipus boat,- tho»'Eridon. having' been ;sold 'utidei 1 • bill of sale. She was .' not, ■■ho.Wßv.el 1 > a suitable class ol vefgfel. He*h«dVpaid ■ s £6oi and £70, its price being £95. He dyd T no! raise the other £153 as' he did not"wanl to. His "ticket," he claimed, entitled him to act as masfeer of ; a trawler foi any size m any harbor of tho Dominion. Mr Cranby did not refuse to have anything to do with him (plaintiff) m the sale of the Swan. He (plaintiff) claimed that he was entitled to a half share m the Vessel. There was a certain amount of his capital m the boat now. His. share was a. working half "share. . Cross-ex-amined, plaintiff admitted that the tern, "working half -share" did not represent an interest m the boat. Defendant told him that ho did not. know that a working half-share meant half tho boat as= well as half the profits. Before they left Gisborne they agreed that he (plaintiff) was to buy m a half-share, but after their return defendant did not acknowledge that he had any interest . m the boat. At different periods' defendant made different propositions, and at one stage offered him a quarter share, which he refused. It was a quarter working share, not a share m the boat. He did not tell O'Connell he had no share m the vessel, and that he was going to run her on shares. If defendant's books? showed that he received his money regularly every week they were wrong. To his Honor : When he had impressed upon defendant the terms regarding his interest m the vessel he disclosed to defendant the details of the Swan and the conditions upon whigh. she could be purchased. • ■ ■ •

Brown, fishing master, deposed that some months ago lie applied to defendant for the position of master of his vosßel. Defendant said he did not want one just then, but his partner was still skipper, and was not working tc hia satisfaction; Subsequently defendant told him that he had offered plaintiff quarter of a share, but he wanted half share. Later defendant arranged for him to join the vessel. The wage was £4_ a week, and Is < j)er 100 bundles. This was the ordinary wage. When the Court resumed at 2 p.m. the witness was cross-examined. Witness admitted that he had brought an action against Mr Bell m the lower Court, but did not bear him any illwill. ■• *

Joseph Cotterill, fishing- master, was called by Mr Burnard. Before . giving evidence the witness, said he knew a great deal about the case, and his evidence would not do defendant any good. „ , His Honor directed the .witness to be sworn, and state what he knew. Mr Burnard explained that witness had been m defendant's employ, .and did not care to give evidence.. Witness deposed that defendant told him he had bought the Swan, and that he . was giving plaintiff a working share m the boat. When the boat .arrived defendant askfed him whether he would take a quarter share m the boat. He replied that he could not take it. He asked defendant what constituted the working share fie was giving plaintiff; was it, a. £5, £10, or £100 share. Defendant explained there was no mention of money at all; it was a half share. Witness then asked if. ho was giving plaintiff a half share of the boat, and defendant replied, "Something like that, He asked defendant how he was giving plaintiff a half share when he had no Inoney to. put into it. Defendant said he had agreed to accept £1 a week off plaintiff's wage and 7 per cent, off the cost of the boat when ready for sea. Playitiff was to pay 7 per cent, interest until half the cost of the boat was paid off to the defendant. Defendant added 'he was going to offer his brother a- quarter share, and he then asked defendant how he was going to make four quarters five, m that he was retaining one quarter, giv ing plaintiff half, witness quarter, wid his brother a quarter. Defendant re marked that he supposed plaintiff would bo satisfied with' a quarter. He met defendant with his brother next day, and they' arranged to take a quarter share * each provided plaintiff agreed to it. He met defendant later, the latter ' corning up from the boat. Defendant said he had put the question to plaintiff, who did not take it very well at first, but he thought he would come to. . He requested dofendant to have the matter legally drawn up. They met every day, but mode no headway. He- met plaintiff, defendant, and the latter' s brother on October 8. Some high words passed between plaintiff and defendant. Plaintiff said he would not alter from the first agreement that he made with hini> and that if- defendant did not like it he would go out altogether. Defendant remarked, "Well, I suppose there has been a misunderstanding between us;' we shall have to go oh as" before." It appeared that plaintiff had all the influence over the defendant. It appeared they left on reasonablo terms. , ■ ■*