COURT ENTERS NON-SUIT

Taranaki Daily News, 1 August 1935, Page 11

COURT ENTERS NON-SUIT

ONE DEFENDANT IN CASE LENGTHY JOE BROS. LITIGATION. defence of another heard. Reserved judgment on an application by one of the defendants for a non-suit was delivered by Mr. W. H. Woodward, SM, in the New Plymouth Magistrate’s Court yesterday, when the involved litigation concerning a Chinese fruit shop at Stratford, adjourned from May, was continued. The claims were made by : flve firms against Joe Bros., fruiterers, New Plymouth, and yesterday was the third full day of the hearing. Joe Joy, New Plymouth (Mr. W. Middleton) was successful in his application for a non-suit K and the claim heard yesterday was against Joe Wai, Palmerton North. Five witnesses were examined, and Wai himself has yet to be crossexamined. The examination and counsel’s addresses • will be held this moming. The claims against Wai were by G. O. McCutcheon and Co. Ltd. (Hastings), • £2B 12s; Turner’s Supply Co. Ltd. (Auckland), 10s 9d; James Parnell, nurseryman (Wanganui), £l9 9s 9d; Bhana Unka, fruiterer (Stratford), £6 12s 3d; L. B. Webster, auctioneer (New Plymouth), £7 7s 6d. „ . • ' Mr. R. J. Brokenshire appeared for plaintiffs and Mr. Middleton for Wai. The trend of the evidence yesterday was to dispute allegations of partnership between Wai and Jimmy Shack, variously known as Y. D. Shack,- and Shack Toe, who conducted a fruit business at Stratford under the name of Joe Bros. It was alleged that Shack, whose evidence of the partnership between himself and Wai was taken on commission at Auckland ■ some time ago, was the/sole owner of the ’ business at Stratford, and as such was solely liable for the claims. Shack has since left New Zealand for China. The action is important from defend* ants’ point of view, Mr. Middleton stating at the original hearing that, although the amount involved in the six claims was only £62 12s 3d, there was over £6OO at stake altogether. SOLICITOR’S EVIDENCE. His firm had prepared the lease of the property at Stratford, said Cyril Hendry Croker, New Plymouth, solicitor. In 1932 he was informed that. Joe Bros, had assigned their interest in the lease to Y. D. Shack. It was then acknowledged that Joe Bros, would remain responsible to the owner. After July, 1932, the receipts were" all issued in the name of Shack, and a receipt dated April 20, 1933, was issued to Joe Bros., per Y. D. Shack. To the extent of the rent reductions to Shack he released Joe Bros. Shack, at an interview, said he had purchased the business from Joe Chaam, one of the original lessees, Joe Wai not being mentioned. On the occasion of an interview at the time of the renewal of the lease Shack was insistent that Joe Bros at New'Plymouth had nothing whatever to do with him. Later Shack objected to Joe Bros, interfering in his affairs.. Cross-examined by Mr. Brokenshire, witness said he had been informed verbally of the assignment of the lease, but he had consented by letter. His firm had no contract with Y. D. Shack and had never made one. He denied the suggestion that Shack had a greater chance of having his rent reduced if backed by Joe Bros, at New Plymouth. Charles Edward Monaghan, solicitor, said he had been associated with Joe Bros, at New Plymouth since they had opened in 1931. He remembered the opening of the Stratford branch by Joe Joy and Joe Chaam. There was no bank account of the business at Stratford. Joe Chaam left for China about August, 1932, Joe Joy returning to the New Plymouth shop. Shack thereupon became the owner of the Stratford business. Later, he desired Joe Joy to take over the business. Joy refused and pressed for payment of £ll4 owing to him by Shack. Witness assumed that the sum represented the purchase price. When the renewal of the lease was discussed, witness was asked if Joe Bros, would join with Shack in the lease. The request was refused. On April 10, 1934, witness received an urgent telephone call from the health inspector at Stratford saying that the shop had been abandoned and the fruit in a state of decomposition.' Witness went to Stratford, but the conditions ■were not as bad as he had thought. To Mr. Brokenshire, witness admitted that a summons issued by an Auckland greengrocery firm for goods supplied to the Stratford shop had-been served on and settled by Joe Joy. PARTNERSHIPS NOT SUGGESTED. Partnerships had never at any stage been suggested between Joy and Shack, he continued. A sum received by his firm from Croker and McCormack, the surplus from the sale of the goods in the shop, had been credited to Joe Bros.’ account, and if the money was due to Shack .it was Joe Bros.’ duty to pass it on, not the firm’s. William R. J. Blinkhom, commercial traveller for A. B. Donalds, Auckland, and C. H. Slater, Hastings, fruit merchants. said he knew Shack from July, 1933. He remembered having received a post-dated cheque which was dishonoured, and when inquiries were made Shack definitely stated he was the owner of the business. Joe Wai had told Blinkhom to be careful with Shack's account, and not to trust him. On April 10, 1934, he called at Shack’s shop at Stratford, but found the premises closed, inquiries at several Stratford fruiterers failing to reveal where Shack had gone. He visited Croker and McCormack the next day with some goods, money and belongings of Shack. The firm would not take anything, but sent him round to Monaghan and Middleton. This firm had refused to take the money, but took possession of the keys. The money was accordingly sent to Slater’s and credited to Shack’s account of £l9. ‘ A balance left was still at Slater’s awaiting Shack. Joe Joy had never ordered goods from the Stratford shop from him, Blinkhom told Mr. Brokenshire, and Stratford had not ordered for the New Plymouth shop. William Guey, Chinese interpreter at Wellington, said he had been consulted by Shack in regard to a proposed claim : by him against Joe Wai for wages. Shack ' had attended a normal school at Auck- I land about 17* years ago and ws a fluent : speaker of English. Shack told Guey ■ that he intended to “break” Wai by - taking him to court in various actions. < Guey agreed with Mr. Brokenshire that it was quite possible for Shack to have some knowledge of Wai that, on disclosure, would prove extremely uncomfortable for Wai. Joe Sim, Palmerston North, gardener, through Henry Chong, an. interpreter, said that through Joe Wai he was engaged as assistant by Shack. He went to Stratford and saw Shack in his shop, Shack going out immediately, and Sim having tea on his own. Sim did not know that Shack was going to Auckland that night, nor was he told by Shack that Joe Bros., New Plymouth, would be responsible for him. At the end of a week the stocks were fairly depleted and Sim was forced 'to close the shop. He received no word from Shack, and on return to Palmerston North, where he took ; the cash, keys and some papers, he gave ; the cash to the commercial traveller Blinkhom. He deducted £3 for wages and fare, an amount to which he considered he was entitled. To Mr. Brokenshire, Sim denied that he had refused to pay an Indian helper ;

because the money had to go to New Plymouth. Efforts to find Shack were unavailing. He did not seek goods from New Plymouth, and did not ask Joe Joy to take the keys. Joe Wai, manager for Joe Kwong Lee at Palmerston North, giving evidence through the interpreter, said Shack went to Stratford on his advice. Wai had heard from Joy that he wanted a man. Joe Chaam was Wai’s brother, but he was not a partner of Wais. Shack had not asked him as a partner to go through the books. Shack had repaid £37 of a personal loan of £4O. The loan was not made as from one partner to another. It was not a fact that he had with Shack to carry on the busmess at Stratford as partners, nor was it true that he had carried on the business himself. He had never seen an agreement signed by Joe Joy and Shack. He had not agreed to pay the accounts, nor any part of them.