CIVIL SIDE.

Thames Star, Volume VI, Issue 1836, 20 November 1874, Page 2

CIVIL SIDE.

BTJCHAHTAN V. BINNEY,

This was a claim by the trustees in the estate of Murphy Bros, for £30 which defendant had held possession of. Mr. Brassey appeared for defendant, and said the debt was admitted, and £15 14s had been paid into Court, but a setoff was put in of £13 16s, for work done by Mr Binney. Mr. Macdonald appeared for trustees. A telegram of the 30th ultimo, being the authority of the trustees, M ras put in ; also a letter of authority from creditors in Auckland for Mr. Binney to take possession of Hayden's store (property in the bankrupt estate of Murphy Bros.). The only object being to prove the indebtedness of the trustees to the amount of the set-off-

Edwin Binney, auctioneer, was called, and deposed—That he knew the plaintiffs in the action, trustees in the estate of Messrs Murphy Bros. He was authorised to do certain work for the trustees, and received authority in writing. Received (produced) telegram from ,Mr Buchanan. In pursuance of authority he performed certain work. First, he paid for telegram, 15s; for man in possession, £2; for accountant, on© guinea;

for work performed himself lie charged 10 guineas, which was fair and reasonable. Had received none of the amount.

By Mr. Macdonald. The money may not have been paid all on the 30th of October. It may hare been paid before, or after. The fifteen shillings was for a series of telegrams. All were not sent on the 30th. Sent a 7s, 55,.35, 2s, and other telegrams. Didn't know when he sent the 7s telegram. Could tell none of those that lie paid for after the 30th. The man in possession was Darned Hcald. Mr. Hcald was in witness' store—but not employed there. He was in witness 1 store on the 30th. Paid him on the Saturday after he had done his work. The 30th was a Friday. Employed him on the receipt of the telegram produced. The telegram says the time was 11.49 o'clock. Heald's, employment ceased on Tuesday. The nature of his employment was to see that no goods went out of the store without the money was paid. Mr Atkin relieved him on Monday. Withdrew Mr Hcald as soon as Mr Atkin took possession of the shop. He (Mr Atkin) might have relieved Heald on the Saturday. Continued to employ Heald because there was another place to look after, Hay den's. Had Hayden's under lock and key. lieceived authority for this by the letter. Buchanan and Pulleine received the 'keys from witness—could not say the day. When he withdrew Heald on the Monday he told him to look about the stock and see what they were doing in Hayden's. He knocked, about ontside to see that ifc was all right. Heald might have been about witness' store, but had not done a hand-stroke in it. He would swear that' Heald walked about to see that the store was all right. Witness received instructions to see that nothing, was received. Pretty nearly all the employment of Heald was based on the authority of the telegram produced. Heald never went near the place until witness received that telegram. Buchanan told witness he was satisfied about the £2. The only thing Mr. Buchanan objected to was witness' commission of 10 guineas. He wanted witness to make it 5 guineas. Nothing was said about the £2. Buchanan knew about the amount, because the account was laid before him Witness drew an inference from his not mentioning it. Did not say "It would be precious little of the £30 that the trustees would get." He might have said that he was entitled to the £30—he considered he was entitled to £50 — and if he had known that the present action would be taken he should have made the charge more than ten guineas. He had been asked for the £30 before he rendered the account. Could not say whether it was after the meeting with Mr. Pulleine that he sent in the account. He was asked for the £30 the first time he saw Mr. Buchanan. He made up the 10 guineas for work done in the employment of the trustees. He considered the trustees entirely responsible for everything. His Worship did not see how the amounts were to be separated. It was a bad precedent to be taken by trustees The letter was signed by creditors two of whom were trustees, and the trustees were morally liable for the letter. Mr. Macdonald said a set off could not be filed against any person other than the actual plaintiffs in the action. Mr; Binney could have no claim on the trustees for work done for creditors in Auckland who conceived it necessary from their individual point of view to have some one to look after their own interests.

Examination* continued—The charges were made for work done before and after the receipt of the telegram. Some telegrams were before the telegram was received and some after. The accountant was before; Mr Heald was after.' He looked at the trustees and the persons signing the letter as one, and made a lump charge. Witness considered he was entitled, to 10 guineas from the trustees for having taken possession of 1400 or 15,00 pounds' worth of property for three or four days.

By Mr Brassey : It was not usual for auctioners or commission §^ents to give up possession of money and receive a cheque for commission afterwards.

James Craig was called to give evidence respecting Mv Binney's employment. The charges made by commission agents were acccording to the value of the property.: To take charge of property of £1000, he should charge at least 1 per cent; if he took the valuation he should charge 5 per cent. He considered 1 per cent a fair charge.

Thomas Waythe Gudgeon was examined as to the charge made by Mr. Binney. He considered it very fair. It would not make any difference whether the goods were held for one day or a week.

W. T. Atkin deposed that he had been deputed to take charge of the stock of Murphy Bros. He came down on Saturday, and went to Mr. Binney, who seemed rather nettled at the trustees sending witness down. Witness acted on his authority, and took possession of Murphy Bros.' store. With regard to Hayden's, Mr. Binney retained the key till Mr. Buchanan arrived. Asked Mr. Binney for the £30. Mr. Binney tendered his account for. £14. Witness said he had no authority to deduct anything. Mr. Binney refused to give the £30, and subsequently said it was very little of the £30 the trustees would see. Witness got the keys of Hayden's store from Mr Buchanan on the Wednesday. Mr Binney had the keys of Hayden's store. Witness was supposed to have control of the store. He thought the keys would be as safe with Mr. Binney. Messrs Pulleine and Buchanan considered Mr Binney's charge exorbitant.

John Brooks Mason, Bailiff of the (District Court and general agent, said he had considerable experience in taking possession of goods under bills of sale and other matters. Snpposing he had received the telegram produced lie should have

charged one guinea for going into possession and ]0s per day for bailiffs in each place. It would make no difference to him whether the property was worth £10 or £50.

Mr Macdonald addressed the Court to show that the authority given by the telegram from the trustees-must'bo looked upon as separate and distinct from the letter signed by live creditors. According to the telegram, it appeared that all the business was to ba carried on as usual, thus defining that his work was confined solely to the jkee where Murphy Bros, were carrying on business. He-contended that all charges made before receipt of the" telegram should be deducted and that the charge of £10 should be reduced, inasmuch as Mr Binney must have made up that sum by charges made for work under the authority of the letter. His Worship said it was a very unsatisfactory mode of doing business. Mr Binney had by his own action precluded the Court from allowing the £10 ; had it not been for his evidence ho would have been disposed to allow the £10 ; but taking all the other evidence coupled -with his, he would not be justified in allowing more than £5, and the charges subsequent to tne receipt of the telegram from the trustees, which would make £6 13s 6d, in addition to the amount paid into Court ™ ™ S£ s." The costs amounted to £6 7s. If Mr Binney considered he had a prope* claim against the creditors signing-ttaf7 letter of authority, he could come against them." APPEAL CASES. In course of hearing the cae Buchanan v. Binney, Mr. Macdonald intimated that some negotiations were going on with respect to the appeal cases, and asked for a further adjournment in consequence. The adjournment was granted, and His Worship informed the witnesses that they need not attend on next Court day unless apprised to the contrary in the meantime. : The Court adjourned.