DEED REPUDIATED

Poverty Bay Herald, Volume LXIV, Issue 19335, 27 May 1937, Page 15

DEED REPUDIATED

CLAIM FOR DAMAGES FISH SHOP PARTNERSHIP ALL-DAY COURT ACTION With the prospect of going on until late in the afternoon, if not until the evening, the case commenced in the Supreme Court this morning between Theodore Nicholas and Dominica Moleta, fish shop proprietors and restaurateurs, was adjourned at lunch time with only one witness heard in full, and another part-heard. Counsel had given the Chief Justice, Sir Michael Myers, an intimation that not many more witnesses were to be called, but His Honour stated that he was prepared to sit during the evening if necessary in order to finish the case. rr the claim by Nicholas (Mr. L. 1Bumard, with him "Mr. D. W, lies) was for £6OO damages alleged to have been suffered by him in consequence of the repudiation by Moleta of a partnership agreement; plaintiff also seeking an injunction restraining Moleta from competing with him in the business of a restaurateur. The plaintiff had given evidence that at the instance of Moleta he had taken him into partnership to buy the Imperial Cafe, and .had actually bought the business for the partnership and installed the defendant there when Moleta repudiated the contract. Later, when witness sought to enforce Ins rights under the agreement. -Moleta Had left Gisborne. and to cut his losses witness had been obliged to enter an amalgamation with the proprietors ol tne Regent Cafe, at a loss to himself.

Plaintiff Continues Evidence Cross-examined by Mr. Jeiine, plaintiff stated that he had felt, the competition of the. two other shops, the Imperial and Regent cafes, ou his own business. He believed that if he bought out tlie Imperial he could compete directly with the Regent Cafe. He admitted that he had recently tried to arrange for a monopoly of supplies of fresh fish in bisborne, and had bought and closed a hsbsliop on Kaiti. He did not agree, however, that this left him a practical monopoly of fish retailing. He had employed Moleta, witness continued, hiring him away from the Regent where he was previously employed. Mr. Jeune asked witness how long the Imperial Cafe lease had to run when the partnership bought it. Witness replied one year and nitie months. He held that he had sighed up for an extension of the lease of these premises before Moleta lcJt Gisborne, and not afterwards. Mr. Jeune questioned the witness as to the signing of 1 the agreement, and Nicholas stated that he remembered getting two copies of the agreement from Mr. h. V. Beaufoy, the solicitor who dratted the agreement, and kept them in a drawer at his shop. When the agreement was signed, witness had insisted on several amendments, including one which exempted him from work in the newlypurchased shop. Moleta had asked how the profits would be divided, and witness said "Half each." In reply to His Honour, Mr. Jeune stated that the defendant had seen the agreement only on the occasion oi Ins signin" it, and that he had repudiated it immediately he had legal advice upon its effect. He" had understood it to contain provision for payment of wages to him (Moleta). Si* In reply to His Honour. Mr. Jeune said that'his client seriously contended that the deed was not as he understood it to be, arid furthermore that'the partnership had been terminated as provided for in the deed itself. ."Business Discussed" Further cross-examined, the witness Nicholas stated that he, Moleta, and Boh Zhnie had discussed business, but he Stated that Zame had not offered to sell the Regent Cafe to witness. He know tfiat Bob Zame and his partners had not intended to sell their business outright. He recalled another conference held about a week later, to discuss the lull retail business, and subsequently an amalgamation of his own business with that of the Regent Cafe was effected. He did not remember when this arrangement las" made, but he supposed it was after Moleta left. He did not go behind Moleta's back to effect the agreement. "Mr. Jeune: Did not Bob Zame, Canelos and your own brother agree to bay vou quarter shares of the amount you had paid for the Imperial Cafe.— X*cfl, but my brother paid me nothing. ' Bob Zamo and Canelos paid, though Yes. The company was to pay the rent of the Imperial Cafe?—Yes. There are now five members of the company., all helping to pay the rent?— V es - Counsel: What have you lost? Witness: Don't you think I have lost. . I suggest you lost nothing. You paid £lls for your share in the Imperial Cafe premises, and you are now making enough to compensate you for that? ' Witness said ho would have made more money if the partnership with Moleta had gone on. "Re-examined, the witness said that it was not until after Moleta's departure that he proposed the amalgamation of his own and the Regent Cafe business. Part of the basis of this amalgamation was that Moleta should not be allowed (it start in business again in Gisborne. Pish Dealer's Evidence Joe Cincotta, a fish-dealer, said he had been authorised by Moleta to invite Nicholas to enter a partnership to buy the Imperial Cafe, Moleta agreeing to pity £SOO as his share of the capital. The witness corroborated the evidence ol Nicholas as to the general discussions, arid said that after Moleta went into the lihperial Cafe he had become frightened by threats from the Regent Cafe proprietors, who threatened to reduce the price of meals. Under cross-examination, witness Stated that he had not acted in anyone's interests in particular throughout the transactions. He was the friend of dll the parties. , Stanley Vivian Beaufoy, solicitor, stated that he had prepared the deed Of partnership, which was signed on February 24, when bqth parties attended at" his office. He fully explained the deed, and had less trouble in making Moleta understand than Nicholas. In the subsequent agreement for amalgamation of Nicholas' business and the Regent Cafe, the Regent interests d anded 'that Moleta should b»; barred from competing with them. Mr. deune briefly cross examined the witness, who agreed that the restriction on Moleta was merely to protect their business. , . ._ This closed the case for the plaintiff, and Mr. Jeune, for the defendant, stated that in the negotiations for the purchase of the Imperial Cafe, Moleta •wsw under the impression that he would be getting wages. It was not until after the agreement was signed that he realised that he would be doing all the work, and getting only half tho.profits. Defendant claimed that the whole transaction had been designed to force the Regent Cafe proprietors to discuss sale or amalgamation, through the threat of heavy competition from the Cafe. The partnership Cetwecn Moleta and Nicholas was subject to termination, at t*(*monW.notice, defendant claimed, ■rid he had given notice to terminate

the partnership. His elimination, in fact, had been arranged by Nicholas before Moleta had left. Gisborne. His Honour: Ybu say that Nicholas could not have it both ways. He could not keep his agreement with the Regent people and with Moleta at the same time.

Mr Jeune stated that that was his ease.

His Honour: But that would not prevent his Buffering damage. Mr. Jeune: Put he must prove damages. Wo say he, suffered no damage. He is now obtaining a share in greater profits than before.

Counsel added that Nicholas had had a return of three-quarters of his outlay en the Imperial Cafe, from his three partners in what was how a virtual monopoly of the fish business in Gisborne.

His Honour intimated that at this stage he could see no case Tor anything but nominal damages.

(Proceeding.)