A PARTNERSHIP MATTER.

Poverty Bay Herald, Volume XLIV, Issue 14244, 12 March 1917, Page 4

A PARTNERSHIP MATTER.

CLAIM FOR. SOLICITOR'S COSTS,

A civil action of an unusual nature was investigated at the Magistrate's Court b v Mr. W. A. Barton, S.M., today, when Charles Jl Claytaii (Air. Dunlop; proceeded against 'George R. liiiscke (Mr. Burriard) to recover the sum of £7 8s Bd, .being half the amount 4rt paid by plaintiff to Messrs Hees Bros paid by plaintiff to 'Messrs Hcos Uro?.. cd, wa« jointly duo by plaintiff aild defendant a« partners. la opening Ma 1 . JJiuilop said the c^aim was for half the amount of solicitor's cojsts paid by plaintiff on behalf of himself and the defendant. The circumstances arose out of the financial difficulties accompanying Clayton and Buscke. Ltd. Tim company was indebted to a timber company for £)800 odd, and the creditors .pressing, plaintiff arranged with Mr. JP. liall for him to pay off the amount. Plaintiff, who wa« more financially sound than defendant, M-as called upon to give his per-sonaJ guarantee for th© repayment of the amount to Mr. tl&ll. He entered into an agreement with Mr. Hall that, in the brent of Mr. 11*11 being unable to collect otherwise, plaintiff Avould mortgage to Mr. Hall his (plaintiff's) interest in a town property fcefcupied by RossboUiam anc» Searle; tailors. The firm of Clayton and Buscke, I/fjd., went into liquidation, and Mr. Hall claimed upon, plaintiff, who was cojnpe'led to make good. The present claim is in . connection with the costs 6i that transaction. The plaintiff was inHebted to him for considerably larger suhis than were raised upon his personal credit, but he did not consider it woMh. going to the heavy costs of a Supreme Court action. The present action was t'> recover this small amount towards recouping him. The moneys were not raised by Clayton and Buscke, Ltd., but 'by plaintiff and ■ defendant personally and .-privately. Plaintiff guaranteed payment of the amounts upon a promise of indemnity from 'Buscke; that was, they raised thie amounts as joint contractors. ' Mr. Burnard said in view of his fl'ifend's opening remarks he thought it right at this stage to call the attention of the Court to the fact , that on his friend's opening it appeared to be a case of splitting demands. Section 31 of the Magistrate/s Court Act provided, that an action ihay nob be divided for the purpose of bringing two 6r more actions or a 'counter-claim. As he understood his friend's contention, Clayton and Buscke Were the principals and sole members df a company ; that that company was in difficulties, and that the two men personally and ,not as a company .arranged with Mr. Hall for a loan, and that they became, personally responsible for repayment.. As -he" (counsel) under, stood the contentions of the other side, as the result of this transaction along with a series of other transactions defendant became liable to plaintiff. If this was so it was really "a partnership matter, and th© ascertainment of tho amount properly duo was a question for 'some tribunal. It was impossible for his ! friend, to ..pick out one amount to claim , for. Buscko might s&y he paid other ac- ' counts. Another . ppint -was^hat Clayton Sid, not pay these moneys at all, ibut that it was provided out of a fund to wMch botli parties had. proper access. It was provided out of tue liquidation of Clayton and Buscke, Ltd. I btr. Dunlop saud when he stated there , were larger amounts due he did not propose to produce any particular evidence as to that. It was not a question as to splitting demands, for each transaction st^o<l alone. Tin's particular claim arose out of a bill of costs, a payment separate from the oilier transactiong.

His Worship said he would hear the evidence..

' Arthur Searle, tailor, said he .had been closely associated with Mr. Clayton in his business. He was a party to the raising of the £825 from Mr. F. Hall for Messrs Clay kbit and Buscke. He was not actually present when the transaction wc\s made. He was in the country at the time. Witness asked defendant why he induced plaintiff to jledge the. property while he was iway, and defendant said^he was agreeable to pay his. proportion with Mr. Clayton. —To Mr. Burnard : Mr. Buscke tried to do , this about two or three weeks before* he took witness along to Mr. Coleman's office, a.nd when witness found out what it was for he walked out of the office. There were cheques in the book that showed that witness paid moneys on Clayton's, and Buscke's behalf, Mr Buscke's snare would be about H'Aa) or £300. The loan after the interest was added on .to it came to £903. He knew that the £14 17s 4d had been paid to Rees . Bros and BrightCharles Edward Clayton said the amount; £14 17? 4d, was paid out of one of the dividends due to him. .It was paid after the £825 was paid ito Mr Hall. Witness said defendant and him;elf raised the £825 front Mr Hall, and he gave Mr Hall security for the unount. Mr Buscke promised that whataver difference there was between them!ie would make it good. The amount jf £14 17s 4d was not included in the iquidation account. — To Mr Burnard: Ypart from this actio,ii .witness. 'claimed' that defendant was liable to him for ibout £300. The deficiency was made ip of various items raised from Mr flail and such items as tho costs in question. Thcv»a transactions all arose out >f the borrowing" of the 1 £525 frbhi Mr Mall. Thev both thought at that time vhcru would be no deficiency. The money .vas borrowed in 1913, and the liquidation was about twelve months later, Mr Buscke said he would make up the . delciency. It was really Mr Sjarle's dividend, because he paid the money on witness's behalf. The money was really noney that should be paid to Mr Hall. Neither Mr Buscko nor himself have ever had a settlement as to their liabili-

Mr Burnard said in addition to the points previously raised it seemed plain 'hat plaintiff had no right of action, fho only person in whom the right; of action was vested was Mr Searle. This .van not an action in a court of equity. Had Rees Broa and Bright not deducted tho costs from the dividend, Searle would have received the money and not plaintiff. Tlie costs were daducted as being properly payable out of i fund provided by Clayton and Buscke Limited. Mr Burnard submitted plaintiff had not proved ho paid the -moneys, half of which ho claimed back.

Mr Dmjlop said .he wa^s npt prepared with lejjal argument* as to the question L>f .splitting demands and he would; ask for lima to look into it. He submitted that each Citno a payment was made, \ separate cause of action arose. Although it was actually Mr Searle's cheque that had paid the amount, it was Clayton'« security. It appeared Mr Hall put. in a tlaim at the .time of , the liquidation and received a dividend, which when paid in were Mi' .Hall's property. When Searle paid .Mr .Hall off he (ook over the securities and, the dividends that came into the solicitor's hands. Tho amount, in question was paid out of onfl of these dividends belonging to Mr Searle, but that. was i\ot to Bay tliat Clayton did not . pay the amount because Searle had charged it on the security given by Clayton. After Mr Burnard had replied the rase was adjourned until to-mborrow for further argument as to the question of splitting demands.