NISI PRIVS.

Star (Christchurch), Issue 180, 9 December 1868, Page 3

NISI PRIVS.

Tuesday, Dbc. 8. (Before Mr Justice Gresson and a Common Jury.) His Honor sat in the Old Town Hall, at 1 1 o'clock this morning. BELL V. WHITB. Counsel for plaintiff — Mr Wynn Williams. Counsel for defendant — Mr Cowlishaw. Mr Corbett William Cooke was appointed foreman of the jury. This was an action brought by the plaintiff, Samuel Lee Bell, against William White, of the firm of White and Co., Christchurch, to recover tbe sum £201 19s 3d. The declaration alleged that in 1864 and 1865 the plaintiff carted certain timber and goods for defendant, and that for such services he was indebted to him to the amount of £608 18s 6d. It set out a set-off for certain sums of money and goods supplied to the plaintiff, which plaintiff alleges go the length of reducing the item £608 18s 6d to £201 19s 3d. The issues were — Ist, is the defendant indebted to the plaintiff in tbe sum of -C2Ol 19s 3d, after giving credit for any sum to which defendant is entitled, as in the declaration alleged, or any other and what sum ? 2. What sum, if any, is the plaintiff entitled to recover from the defendantin respect to the matters in tbe declaration alleged? Defendant denied all the material allegations which the declaration contained. The following evidence was given : — Samuel Lte Bell : lam the plaintiff. In Sept. 1864, 1 was residing in Christchurch. I first had transactions with the defendant about the beginning of October. I agreed to carry Mr White's timber on Lake Forsythe and Lake Ellesmere. One-and-sixpence ahundred feet was agreed upon for carrying the timber from Little River to the bottom of Lake Forsythe, and 2s 6d per hundred from Rocky Point on Lake Ellesmere to Orari River and Hart's Creek. From Lake Forsythe to Rocky Point, the cartage was 2s 6d per hundred, making altogether 6s 6d per hundred. The arrangement made was that I was to take the timber from Little River to the bottom of Lake Forsythe, and McAra was to work on the big lake. He was also to do the carting between the bottom of Lake Forsythe and Rocky Point. None of that work is charged in my account to Mr White. In December, 1864, Mr White came down to Little River. I told him that McAra and I had arranged in this way — that I was to carry the timber on Lake Forsythe, employ men and pay tbem on my own account ; and that he was to do the same on Lake Ellesmere. Mr White said it didn't matter what arrangements we came to, so long as he got the timber delivered at Orari and Hart's Creek ; and that he wouldn't pay for any timber until it was landed there. The original landing place agreed on was Rocky point. In the beginning of June, 1865, there was a great storm, and the road was washed away. Mr White'B manager said I would have to convey the timber by Birdling's Beach. I refused to do so, as there was not water enough to use the punt. He said he would send his men from the mill to cut a channel, and I told him I would make an additional charge of Is 6d until the channel was deepened. Nothing definite was arranged. Mr White's manager said he thought the extra charge too much, but told me that Mr White would pay me what was right. I commenced work. Cross-examined by Mr Cowlishaw — I believe tbat Mr Bishop was present during the negociation for the carriage of tbe timber; no document was signed ; a verbal order was given. I was to have timber from defendant for building punts, at 10s a hundred. In December, 1864, it was arranged that McAra and I should work separately. McAra was to charge Mr White separately, but he didn't do so, as he didn't work there long. I had nothing at all to do with the Drill Shed. I never made any claim in respect to it to Mr White. I sued McAra in tbe Resident Magistrate's Court for the Drill Shed. I couldn't get the money from the defendant, and because I couldn't get it, I sued McAra for it. I don't know who received the money from the Government for the Drill Shed ; I didn't get it ; I never saw any one receive money for it. I did not send in a tender for building the Drill Shed neither on my own behalf nor in conjunction

with others. I withdrew the case against' Me Ara ; he said he didn't owe the money to me,- but to White. I got £25 from him which I had lent. I never acknowledged Mc Ara as a partner; he was not a partner ; I had no arrangement whatever with McAra as partner ; I never looked to White to pay me for McAra's work ; lam sure of that ; I employed Dr Foster 3 years ago last September. I furnished him with accounts to mak' my claim against White. I believe I furnished the account produced. I give White credit for McAra's work in that account. Mr Cowlishaw handed in reoeipts to show that the plaintiff a_d McAra were partners. Tbe plaintiff denied that he was ever in partnership with McAra. He had never told Noah Walters or anybody else that they were partners. McAra was in debt, and he ran I away. Witness never told anybody that he wanted to buy McAra out. He got a statement in writing from Mr White showing £19 as being due to him. Witness said he would not take the amount. Mr While said to him that he couldn't get any more without going to the Supreme Court, and that he knew he hadn't the money to go there. Witness told him he would wait until he had money,, and then see what he could do. Never asked Mr White for an advance of money to buy McAra out of business; he had nothing to buy out. Never went to White with McAra about timber for a drill-shed. Re-examiued by Mr Williams : I told White tbat McAra was no partner of mine, and that if he thought so, I would stop work. John Bell: lam plaintiff's son. The handwriting to the receipts produced is mine. I was running timber down Lake Forsythe for my father. I know Mr Coop. He said they could not keep a man on the big lake just to sign the book for the receipt of the timber, so I signed for both Bell and McAra. McAra was down at Lyttelton when the first receipt was signed by me. I know McAra personally. John Radford : I was working for Mr White in February, 1865. I had some conversation with Mr White as to the boating on the lake. He said he had made arrangements with Mr Bell for the carriage of the timber. Cross-examined by Mr Cowlishaw : I have heard Bell say that he was not a partner of McAra. This was plaintiff's case. Mr Cowlishaw submitted that the partnership between Bell and McAra had been fully proved, and there was, therefore, no case to go to the jury. His Honor expressed an opposite opinion. Mr Cowlishaw Btated his case to the jury. He would prove the partnership between Bell and McAra, and also between Coop and White. William White : I remember Mr Bell and Mr McAra coming to me in 1864. We required some one to cart timber from Lake Ellesmere to Lake Forsythe. Bell, McAra, and myself had some talk about it. They went away, promising to return again ; they returned, bringing with them a man named Gravel, who, they said was their mate. I told Bell and McAra that I would not make a bargain with Mr Gravel, as he didn't look like a working man, but that I Avould make a bargain with them, and for a commencement give them Is 6d a hundred for bringing timber down Lake Forsythe, and 2s 6d for bringing timber from any point to any other point on Lake Ellesmere. I told them that I would pay for carting according to distance. I named two points — from the bottom of Lake Forsythe to Birdling's Beach, Is 6d. They left aud returned, and agreed to my terms. They said they were short of money, and asked if we would supply them with some stores and timber for punts. We went to Mr Bishop and an order was given. The specification for the timber required was given by McAra. Afterwards McAra and Bell came to me aud asked me if I would give them timber for a Drill Shed at the same price as I had given it to them for the punts — namely, that they were to work out the price. It was agreed to on the understanding that they shouldn't delay supplying me with the timber that I required for the tramway. The order for the Drill Shed timber was given into Mr Bell's hand by Mr Bishop. JSome time afterwards, I went up to Little River and saw Bell there; he was loading his punt. I said that they had neglected to supply me with the tramway timber to such an extent that I was compelled to obtain some from the Bays. I mentioned that the reason of this was their supplying the Drill Shed timber. He said he wished that he never had anything to do with the Drill Shed timber, as he feared that his partner or mate would bolt and leave him to bear the loss. I was afraid they would bolt, so I instructed Mr Bishop to apply for the Drill Shed timber money ; he did so ; Bell and McAra asked for time, promising to pay. Bell asked me to lend him money to buy McAra out. McAra made me a similar request to buy Bell out. I never agreed that the contract between Bell and McAra for carrying timber should be dissolved. We never squared up ; I told Bell that I could not agree to a dissolution until we had a squaring up, and that afterwards he could go on with the work on his own account. This was after McAra had bolted. I believe that in the account submitted, all the joint work of Bell and McAra was included . Bell now says that the cartage from one place to another has nothing to do with the original agreement. The work done by them was done jointly. Against that cartage I have a set-off, in stores, materials, and the Drill Shed timber. lam in partnership with Mr W. Coop. I have frequently told the plaintiffs that Mr Coop was my partner. We have been trading together for some years. We were partners at the date of my transactions with the plaintiffs. The Court adjourned. This Dat. The hearing of this case was resumed at ten o'clock this morning, but It was not concluded when we went to pressj