BROTHERS IN COURT.

Star (Christchurch), Issue 16906, 4 December 1922, Page 8

BROTHERS IN COURT.

DISPUTE OVER COMMISSION Two brothers, William Wallace McClelland and Henry M’ClelJand, indent agent 3, Christchurch, brought a dispute for settlement before his Honor Mr Justice Adams, in the Supreme Court to-day. William Wallace M’Clelianu, who was employed by his brother Henvv as a commercial traveller, ns plaintiff in the ca.-e, sued his brother for commission alleged to he due, and asked that accounts should be* taken, i iie plaintiff sot out that on December .145. 1919. the defendant, Henry ALClclland. agreed to employ him as a eommercial traveller at £3OO a year and 20 per cent gross commission on sales secured bv him. The agreement was mutually determined on June 1- 1921. The defendant, had paid, in respect to commission between December 3. 1919 and June 1. 1921. £2OO, but had not rendered anv account of the total com- ! mission, which wn.s substantially iu , exf-ecc (! f £-200. The plaintiff asked for accounts to bo taken of the sales secured by him. and the commission duo t, him. Tiie defence was a general denial of the plaintiff's statements, and was an allegation that the defendant paid the plaintiff £IOO in settlement of all commission due. In a counter-claim, the defendant alleged that the plaintiff wa* permitted to draw on the defendant’s banking account for travelling aim incidental expenses, and did so tor euO st mitial sums, bat refused to render an account of those moneys, and that rhe plaintiff was handed valuable goods as samples, but disposed of some ot them instead of returning them, as instructed. It was also alleged that the plaintiff'’secretly and wrongfully acted rtf; a commercial traveller to ot-ner firms, and secretly and corruptly received and retained for himself commission. the amount of which was unknown to the defendant. He asked that accounts should be taken of moneys drawn by the plaintiff from th» defendant's banking account; of tbe amount due for -samples disposed of by the plaintiff ; and of commission paid by firms other than the defendant- s to the plaintiff and wrongfully retained by the plaintiff. The defendant also asked the payment of all sums found to be clue on taking of these accounts. In a defence to the counter-claim, the plaintiff denied that sums drawn from the defendant’s banking account as expenses were substantial. Mr A. T. Donnelly appeared for the plaintiff and Mr G. S. Thomas for the defendant. Mr Donnelly said that the main controversy was whether or not there wa* a settled account for commission due to the plaintiff. It- was alleged by the defendant, that his books wore destroyed in a fire in Hey wood’s Buildings, but even if they we re, the commission due to the plaintiff could be ascertained, by consulting invoices of goods sent by English manufacturing firms represented in New Zealand by the defendant. The plaintiff' said that he travelled through. New Zealand as his brother’s traveller, to represent English manufacturers of velour hats. .sail-cloth, woollens, -worsteds, millinery, linens aTid. hardware. He took the orders, sent them to bis brother, who sent them Home, and the manufacturers consigned the goods direct to ihe customers. He was pa-id on orders actually executed and paid for. In June, 1921, on account of the slump in New Zealand, lie offered to pull out- from the defendant*, but the defendant did not wish him to do that and agreed to pay him £7 a week, without com.mission, instead of £6 a week with 20 per cent commission. He received no commission from June. 1920, to June. 1921. On. one occasion, when a letter came from Mitchell, an English .manufacturer, witness saw a cheque in it for £586 commission, due to defendant. Witness said, £ ‘ There's corn in Egypt yet,” and the defendant said that he would give witness a cheque for £IOO. He did so, hut there was no settled account. "Witness finally left the defendant. On asking tbe defendant. how he stood, the defendant produced statements in his own figures, but witness said that he required the invoices of the English firms, showing the commissions they had paid. The defendant’s books were damaged in the fire, but they were readable. Witness bad seen them : they were not destroyed. To Mr Thomas: His expenses in a town like Wellington were 30s a day. including hotel fares, entertaining and treating. Tn February you drew £37 in Wellington in thirteen days, in ’Wanganui £lB in three days, making a total of £55 in sixteen days?—Yes. On February 1 you drew £5 in HaweraP—Yes. The dates ori your cheque blocks don’t tally with dates on of credit. Weren’t you pushing the fates of tlie* cheques Forward because you thought you were over-drawing "our expenses?—No, T wasn't used to cheques, and T entered the dates from memos in my pocket book, a.nd made niis+akes. Do you think laundry bills should be charged against your brother?—Certainly. Witness denied that he took commissions wrongfully from other firms. He said that he sold shirts for another firm, but did pot get any commission from the firm. He now represented it in Christchurch. He gave hats to at least seven people with the object of inducing business. To Mr Donnelly. No claims as charges were made against witness by defendant until witness began the present action for accounts. (Proceeding.)