S.M. ASKED TO DECIDE WHO PAYS.

Star (Christchurch), Issue 17905, 22 July 1926, Page 5

S.M. ASKED TO DECIDE WHO PAYS.

INVOLVED CASE BEGINS IN COURT. A case of uncommon interest concerning the constitution of a trading concerns, dealing principally with Crossley motor-cars, came before Mr H. A. Young, S.M., in the Magistrate’s Court to-day, the problem set him being to decide who is liable for moneys owing by Crown Motors, (. hristchurch. which went out of business last February. Brabner’s. Ltd., the claimants, sought to recover an amount due for work done, two defendants being cited, the manager for Crossleys Motors, Wellington. and the Christchurch salesman, it being contended that either the former was responsible for the business, or alternatively that a partnership existed. Ihe action was between Brabners, Ltd., body-builders, and Giffen Murphy, salesman, and J. R. Perrv, company manager, Wellington. Mr D. H. Ilall represented plaintiff company, Mr D. M. Findlay (Wellington) represented Perry, and Mr J. D. Hutchison looked after Murphy's interests. Partner, Owner, or Servant? The statement of claim set out that defendants entered into partnership at Christchurch last December, trading as Crown Motors, and selling Crossley cars. They now owed plaintiff £26 Is 6d for work done in November, 1925, and February, 1926. particulars of which had been supplied. In an alternative claim it was set out that if defendants were not in partnership, then the business was conducted bv Murphy on behalf of Perry and Perry was indebted to plaintiff company for the amount. A further alternative was that if defendants were not in partnership and the business was not carried on by Murphy for Perry, then it was carried on by Murphy on his own account, and he was indebted to plaintiff company for the amount. Stewart Storey, of Storey and Co., said Murphy approached him regarding arrangements for the Olympia Motor Show on behalf of Crown Motors. Witness thought Perry was interested in Crown Motors, to which a bill was sent. He did not think Murphy was interested in the business. The bill was not met and Perry told witness Crown Motors was closing down. He told witness the account would be paid later, and witness was satisfied the account would be paid by Perry. The latter did not suggest Murphy was going to pay. Complicated Accounts. Eric Bain Rawlings, manager of plaintiff company, said that before doing work for Crown Motors he had done work for C'rossley Motors, acting under instructions from Murphy. The work was paid for by Crossley Motors by cheque. Later Murphy told him he (Murphy) had opened up a branch in Christchurch as Crown Motors. Witness asked him why it was not called Crossley Motors and he said it was really Mr Perry’s place, and he did not want the connection with Crossley Motors known. That was about the time Brabner’s began to do work for Crown Motors. Witness knew Perry was connected with Crossley Motors, and also that Murphy had been a salesman previously. Witness kept Crossley Motors and Crown Motors on one account. Murphy would get quotes for damaged cars and these Crossley Motors had to pay for —other work was to be charged to Crown Motors. Murphy’s instructions in the matters were carried out. Radcliffe also ordered work to be done and witness questioned Murphy as to whether that was in.order. Murphy replied that Perry had sent Radcliffe down from Wellington so it would be all right. Witness saw Perry after Crown Motors was closed and he told witness to charge the work done on a Crossley saloon car direct to Radcliffe. Perry said he would not be responsible for that bill but the other accounts would be squared up.

Giffen Murphy said he was one time a salesman for Crossley Motors, Wellington. Mr Perry suggested he should go to Christchurch. Witness had no money; he was on £2 10s a week and commission. Perry later suggested he

should come to Christchurch as agent for Crossley cars, but witness told him he had no money to run a business. The outcome was that witness came to Christchurch to select a showroom. Perry definitely said that it was not to cost more than £250 a year. Witness came to Christchurch and found a place (Maling’s). Maling asked witness who would be responsible for the rent, and witness replied that Perry would really own the business. Witness wired to Perry informing him of the place at £250 a year, and Perry confirmed by wire in the name of Crossley Motors. Witness then saw Mr Maling and arranged to get the showroom at £2OO a year to the end of 1925. and pay £250 after that. Perry told witness he was not to have communication with Storey until the rooms were ready. At no time did witness consider himself as anything but a servant of Perry. The first cheque from Perry was one of his own for £SO, and he instructed witness to open an account in his own name. lie did so as instructed. lie received money to the amount of £l5B 10s from Perrv Perrv came to Christchurch in October and again in November. On the first occasion he was with the English representative of * rossleys Motors and he was keen to have his connection with the business not disclosed. He staved some time in November and was a visitor also in December and January. Tic paid witness £2O in notes in December. In January witness suggested 1 lie only way to run a business was to run a service station, but finally it was decided by Perry that the business should be closed down, and it was done in February. Perry provided money to pay accounts. The Crown Company then had a s econd-hand Singer Dodge and a Hupmobile car. The first two were sold and the money from the Singer handed to Perry. The money from the Dodge was sent to Crossleys Motors. Wellington, and the Hupmobile was ordered to be put into Rink Taxis by Perry witness complving with the order. W hen the showroom was opened first witness wrntp to Wellington asking if Ratdifte was coming down as a salesman. He was to be paid the same commission as the Wellington basis. He drew corn, mission on two cars. W itness put his position down as manager to a certain extent, but always • er ci i \ on anvthine important and regarded him_plr . Q an employee of his. He did . monev in the business and he had none.. Ratcliffe had no finan- . j interest in the business as far as witness knew When the business closed down Perry asked witness what the lowest he would take to sell Crosslevs and he said £2 10s a week and pxoenses Perry agreed to pay that ' a 1 tier cent, the percentage to go t him to recoup him for his loss. Wit--4 severed his connection with Crown Motors bv simply leaving. The sum of ci ills was owing m wages. -To Mr Finrlav: Witness had drawn an average of £2 !0s a week, paying himself by cheque on his own account. The monev > n some instances came from sales of second-hand cars and some came from Perry. The money he sent V aS not ‘ a h used for rent.

Mainly the rent was paid from Perry’s money. Witness could not say how much was owing to Crosslevs Motors, he thought about £6OO. Mr Findlay: Have you your bankbook?—No. Where is it?—With the books of Crown Motc#s. Where are they?—Where Mr Perry put them. Mr Perrv says he has never seen then.—He did not ask to see them. Witness said he drew £SB 0s 7d during the time he was with Crown Motors. There was no arrangement about his wages. In Wellington he would not average £5 a week. Witness came to Christchurch as he was looking for an interest in the business when the company was formed. Mr Findlay: The company was formed ? Witness: Not a limited company. Mr Findlay: No, evidently an unlimited ’company. Witness: I looked on myself as a servant. i Mr Findlay: But you wrote as a principal. Witness: I had to. Witness again swore that he did not come to Christchurch with Ratcliffe to start business. Mr Findlay: Well, I'll prove you did. Did Ratcliffe not go to Wellington to represent the Crossley- agents at a conference ? Witness: Yes, Perry had asked for it. I told him he was entitled to expenses. Witness was questioned regarding a transaction concerning a sale of a car. Mr Findlay: Did you object to Ratcliffe allowing so much for a Ilupmobile car? —I tol dhim I thought it was excessive. You thought he was wrong?—l looked on him as much a partner Mr Findlay: Ah, finish that phrase, as much a partner as what? Witness: lie was as much concernNo, a partner, you said; now finish it. I considered him as much a partner or servant. Mr Findlay: Now that is an afterthought, one you have since fabricated. Witness; I take exception to that term. Witness, asked why he had not objected to Radcliffe's action, and he answered that he was against it, and that it would have to be explained to Perry-. He accepted Radcliffe when he came down from Wellington, as a salesman, and he expected that Radcliffe would ultimately get an interest in the business if it was a success. They both did. Mr Findlay: A sort of heads I win tails you lose business! Continuing under cross-axamination, witness said that he had said when engaging the showroom from Malings that Perry was providing for the rent. Witness concluded a local contract without reference to Perry. Correspondence was produced by Mr Findlay with the object of showing that Murphy and Radcliffe had the agency. Mr Findlay: Was it wise to say “we” and “our” in your letters to Perry? Mr Perry did not want his name or connection to appear. Then it was a fraud?—The whole business was a fraud from the start. And you were a party to the fraud? —Yes. I wish I was never in it. I was the loser. What have you lost?—l’ve lost my reputation. In a letter to Rogers, Ashburton, why did you say y-ou wished Perry was behind Crown Motors?—We were to keep from sub-agents the fact that Perry was in the business. Witness admitted that letters show ed that he was the Crown Motors and not the servant. It was he who suggested that the business should be called “Crown Motors.” „ .i.;,., (Proceeding ) : a\ ifc;