MOTOR DEAL.

Taranaki Daily News, 1 December 1923, Page 7

MOTOR DEAL.

A HAWERA CASE. DAMAGES AWARDED. JUDGMENT FOR PLAINTIFF. Damages totalling £577 were awarded by the jury in the Supreme Court last night to Martin G. T. Priest in his action against the partners of the late Parke’s Carrying Company for the recovery of the suny of £1525 general and specific damages. Priest alleged that by fraud he had been induced to combine with the defendant company, and that their subsequent actions had caused him the loss of his business and a Leyland motor truck and had necessitated the expenditure of £125 in repairing another trudk which had been abused by the defendants. The jury found that there had not been any fraud and did not award damages on that part of the claim. The action was commenced on Thursday and was heard before Mr. Justice Salmond and a jury of twelve. Mr. L. M. Moss appeared for the plaintiff and Mr. J. J. Houston for the defendants. Vvnen the case resumed an order w’as applied for and made, amending the writ by the substitution of the names of the following as defendants instead of the Parkes Carrying Co.: Messrs. D. J- Williams, Mere Mere, farmer; W. R. Burgess, Hawera, motor mechanic; J.' Hopkirk, Hawera, engineer; and G. M. Galloway, Normanby, storekeeper. Continuing his evidence Alfred G. Anderson. managing clerk for Moss and apenee, recounted his negotiations with the company with a view to obtaining compensation for Priest, the company advising that representatives had been appointed with a view to settling the matter amicably. The subsequent negotiations, however, were privileged. Telegrams were read between Mr. Moss and

Leyland Motors, Wellington, regarding tlie seizure of the Leyland truck which Priest had had before joining the company and which was used in its service. The Leyland people advised that they were formallj r seizing the truck, but would agree to a conference, later telegraphing that no useful purpose could be served by a conference, and that the truck would be seized. The witness afterwards learned that the truck, had bten sold to the Parkes company. Cross-examined by Mr- Houston, witness said that Priest had not told him prior to the first meeting in January Mat he knew .that the books of the Parkes company were in an unsatisfactory state. He could not state definitely whether the statement of affairs produced by Mackley at the January meeting mentioned that the lorries were taken in at cost price, but he did not think it did. Mackley had told him that the general position of the company was good, as there was a considerable surplus of assets over liabilities. This closed the cae for the plaintiff. CASE FOR THE DEFENCE. Opening the defence to the claim. Mr. Houston said it was submitted that all the liabilities of the company for the use of plaintiff’s plant were discharged by virtue of the document signed by plaintiff on April 28- On this date they ceased to he responsible for payments upon the Leyland truck, and if it was seized it was because of the default of Priest himself. It was denied that he had been prevented from carrying on his business, and the allegations as to the fraudulent misrepresentation upon which Priest wm said to have been induced to go into the company, were empnatically denied. Cyril Mackley. accountant, who was noting an secretary of the Parke’s company at the time 'Priest joined the concern, said he became secretary in January of this year and terminated his engagement on April 28. When he took over, the books of the company were in a chaotic condition. His instructions were to investigate the account*, ae the partners were not satisfied with the state of affairs. The}’ did not know their exact financial position. The books had not been written up to date and witness subsequently found that many liabilities were not recorded He prepared the -statement of affairs in January and read it to a meeting of the partners, at which Priest was present.

“BOOKS UNRELIABLE.” Witness said he explained the sheet to Priest and told him that the figures were subject to verification. He also said that the assets were stated a* given to him, and that no allowance had been made for depreciation. Between January 17 and 20 he saw Priest at least once a day and the statement was discussed. At the meeting ftt New Plymouth, at which Anderson was present, the witness said that he stated that the books were totally unreliable and that he was engaged in writing up a new set. The difference in the bal-ance-sheets of January and March, the first one showing a profit of £2OOO and the second a loss of £2OOO. was explained by the fact that in the second Balance-sheet £1350 had been written off for depreciation and by the discovery of a number of liabilities which had not previously been ascertainable, fie had suibsequentiy advised Priest that he could not have anything better than the second balance-sheet. Cross-examined by Mr. Moss, witness said that in view of his qualifications and his experience as an investigating accountant, a statement made by him should carry some weight, fie could not eav definitely how long it took him to prepare the 'first balance-sheet, but it was between the date of his appointment on January 15 and the meeting of January 17. He had had access to some of the books, however, before his appointment was minuted. The witness was asked by His Honour as' to why he had put the signature “Duff Wynyard and Mackley” to the balance-sheet. Mackley answering that he was a partner in that concern, and the proceeds of his work would go into the partnership. He believed that it was the usual practice to put the name of an accountancy firm to the balance bheet, placing below the signature of the partner who actually did the work. THE COMPANY’S POSITION. continuing to Mr. Moss, Mackley said that on January 27 the company had tinder consideration the appointment of.

a receiver. There was pressure on the company from Parkes for about £3OOO, but he was not sure that Priest was aware of this. A proposal was made that the book debts should be sold for 75 per cent, of their value so as to get' money to meet their liabilities and to buy a truck or trucks. The purchase of trucks was not the <crux of the position. Witness had not taken any share in the company. The cross-examination was continued with reference to the entries in the minute book. He could not say why one set of minutes was not dated. He admitted showing the £20.00 profit balance sheet to the Bank of New South Wales at Hawera, but could not state definitely whether it was shown to any prospective lender of money. The company was deeply involved. On February 14, £5OO was lent by a Miss Mclntyre and the money was used to pay current accounts. To His Honour: He knew that the company had not made a profit of £2OOO when no allowance had been made for depreciation. F- V. Lyeone, motor mechanic, Eltham, gave evidence as to Priest’s Leyland truck being a reconditioned machine, while James McKinlay, of Opunake, said that Priest’s Thorneycroft lorry was in poor order when it was in the company’s service. To Mr. Moss, McKinlay said he did not know what the Thorneycroft was like in January, blit it was in bad condition w’hen it came to Opunake. He 1 ad no knowledge of the fact that it had been continuously on the road for two months prior to the time he saw it. Cyril P. Hutchison, fitter’s labourer, i.awera, said that Priest had remarked that he did not think the Parkes company was .worth joining and that he did not intend to join. He also corroborated the evidence of Lysons and MeKinlay concerning the condition of the Thorneycroft lorry <(

Thomas Kelly Moody, accountant of Hawera, and manager of the General Transport Company, successors to the Parkes company, said he took Mackley’s place when the latter resigned. He was present at the meeting on April 28 when Priest appeared a little excited. Priest offered to cancel the agreement he had entered into and voluntarily signed the new agreement made that night. He denied, in answer 40. Mr. Moss, having said to Priest “Hullo, here is the pigeon.” William Robert Burgess, motor engineer, of Hawera, recounted his overtures to Priest that he should join .in with the Parke’s company of which witness was a member. The statement of affairs produced in January and showing a profit of £2OOO was the only one he had ever seen. He did not believe that a profit of that amount had been made and when he first read the statement, said it was more likely that there had been a loss of that amount as the company had had great deal of trouble. THE JURY’S VERDICT. The jury retired at 9.48 p.m. and returned at 10.51, when the foreman said the jury wished a further direction on the question of fraud. The point that some members of the jury were concerned about was whether to constitute fraud the statement or act had to be intentional. His Honor replied in the affirmative, adding that the action had to be false and designed to get some person to act upon it as if it were genuine. The foreman also asked whether damages could be awarded for negligence. H ; s Honor replying that damages for negligence could not be awarded in the case before the court. The jury returned a few minutes later with a verdict for the plaintiff for £125 in respect of the Thorneycroft lorry. £350 for the loss of the Leyland, and £lO2 balance due to Priest when he left the company. Judgment entered accordingly, with costs totalling approximately £7O in addition to witnesses’ expenses and d : «- bursemente.