Aramoho Meat Freezing Works.

Wanganui Chronicle, Volume XXXXVII, Issue 11738, 16 September 1902, Page 5

Aramoho Meat Freezing Works.

THE COT3B-T CASE. Per Press Association. WELLINGTON, September 15. The healing of the case Mitchell v. New Zealand Loan and Mercantile Agency Company and othei*s was resumed this morning. Mr. Bell said that anxious tlhough the defendants were to go into the box aild submit to cross-examination, they had uo fresh, matter to add to that before the Court. He asked that the pla.nti.f he nonsuited, on the ground of having failed to comply with the following principles : 1. Fraud must be alleged in a spe-i-fi-3, pointed, and relevant manner, as laid down by the Court of Apipeal in recent decisions. 2. Fraud must be conclusively proved by pliadntiff, and he fails if tihe facts he adduces are consist"> it with an honest irnteipretation. 3. Damage miust be proved. Plaintiff had proved, no equity and could not succeed unless the Court created new equity. Plaintiff's case amounted to a submission that the officer* of the defendant company were not entitled to take oirdinary business precautions to secure the payment of a debt due to the defendant company. No agency of the defendant company for tii& plaintiff had been proved. The defendant Johnson's position was defined in a letter 1.-y plaintiff himself. Johnson was in plaintiff's employ with specific duties to the defendant; company and to Reid. Plaintiff complained because the defendant Johnson performed duties he was appointed to perform. It was impossible to contend that the defendant company was the agent of the plaintiff by reason ofMh* plaintiffs appointment of defendant Johnson at the defendant company's instance. On the question of agency, his Honor said he did not see how it could be said that the defendant company was the agent of the plaintiff. With respect to the acquisition of Reid's mortgage, Johnson's position was a curious one. He wag appointed! witjhl a right to dictate .to plaintiff, but was bound to take defendant company's instructions and to conceal vuthing from the company. Mr. Bell went on to say it was plaintiff's contention that because the defendant Johnson was appointed at the instance of the defendant comip|anyj the latter was therefore unable to exercise its right as an ordinary creditor. On the other hand, the object of Johnson'si appointment was to enable the defendant company to more effectively exercise its rights as a creditor. If the business h»d not paid it was not Johnson's fjault. *".f plaintiff was to succeed the Court would have to find tha* two creditors in sudh a position as the defendant company and Reid were bound, if they arranged for their mutual protection to inform) a debtor of the fact. From; the date of his return on September lOtih, 1901, till 6th January, 1900, plaintiff could have disposed of his business, and was not hampered from doing so by the agreement between Reid and the defendant company, and right up to the present he could have redeemed his position on the payment of his debts. If two creditors interested! as Reid (guarantor1) and defendant company were could not combine to make a man bankrupt, what became of the provisions of the Bankruptcy Act compelling a combination for such a purpose of certain creditors1. Johnson was brought into manage the financial part of the business of pl'.aintiff, who had got into difficulties. Johnson was to have kept in check plaintiff's finance, and would no doubt have helped plaintiffs -business had not the year been a disastrous one, in that stock was bought at high prices in the colony and frozen meat was sold at low prices at Home.

Hia Honor said he could see no sinister intention in the arrangement by which, Johnson should account to the -defendant company, and any dispute .between the plaintiff ajid Jdhnsion should be settled by Stevenson. Mi 1. Bell said the balance-sheet, showing £5000 profit, was prepared! by Johnson, but unfortunately, the prices on which it was based were not realised. The defendant company was the controlling creditor, not the agent of plain/tiff. If there was an agent, it was p'ainitiff. There had beeni no attempt to .prove that Jotmsott'is statement tliat there was £2000 lost on the retail business was untrue. It was Johnson's duty to communicate what he believed to Reid, and his statement that securities were in jeopardy had not been proved to be untrue. His Honor said Johnson was in no way liable if lie gave a mistaken opinion to Reid, so long ac he did not misrepresent facts. Mr. Bell added that the letters showed that defendants feared, net that the plaintiff would', through Nelson's arrangement, be able to pay them off, bub that he would n-Jt be able. What really prevented the canying out of the arrangement with the Nelsons was not any combination of tihe defendants, but the ludicrous* insufficiency of the proposed £5000 advance. Plaun,tiff's case was founded not on facts, but on words taken out of their context in letters and used a,s catch expressionsl. Counsel then dealt in detail with the voluminous correspondence. Mr. Bell, continuing, said the defendants were accnTsied of causing Reid to enter into an agreement. Reid said he was not coerced. Supposing he was, what business was it of plaintiff? How was plaintiff injured? Since he had a right ta redeem, it could! not matter anything to him. Next, coming to the agreement of 7th September, "supposing they had control, what was to prevent them carrying out their arrangement with Reid, unless the Court Avere to create new law? Botb iuid arrived at the conclusion that there was no interest in tflie concern at all except themselves and Reid. MoPherson Avrote off £5000 as loss, and when asked by cable from London, for the purpose of auditing, he adhered to that decision and confirmed! it. ' With) reference to the alleged conspiracy with Reid to keep secret the transactions referred to mi me last two paragraphs of the statement of claim, he mentioned that it was their first dluty to. conserve jtheir own interests!, and nob only was Johnson not guilty of any imprap'iety in the matter, but Avas simply performing his duty to Reid. Watt had told them he advised young Mitchell not to show the arrangement made jnth Nelsons, ?o tlhat, in Watt's opinion, they were not in any sense bound to let defendants know what was being done by plaintiff in Londbn to absolutely defeat any possibility of recovery of their position. He submitted that there had been absoutelv no proof) of fraud. Plaintiff alleged that in furtherance of fraudiulent conspiracy he was induced to execute a deed of assignment to Johnson. What was the use of saying that Avitihout proving it? What was the use of making suggestion when the law required there should be proof? The Court Avas asked not to proceed upon solid, well establif-h----ed rules of equity, but to create new equities for the purposes of the plaintiff in this case. Counsel proceeded to review the history of the plaintiff's dealings Avith the defendant company, and

pointed cut that the arangement witlb Nelsons drove the defendants into making one for their own1 protection before he returned. In do;ng so they abstained f\om any comanent on the absurdity of the arrangement he was trying to make,, because it way transparenib that it needed no comment as an aiTangement that could 1 not have been given effect to. [ Hir Honor: It djoes not apjpear to have been an arrangement. Mr. Bell: Nelson Bros. commitceJ themselvies to madhinery which they never delivered. It was an. arrangement. It was a declaration of war by Mitchell. Young Mitchell said defendant com^tny were bound to provide money for t! re c years to carry on his father's business Nevertheless his father makes an ai-r.ia^e-ment by which he delivers over tsie whole of a profitable business to Nelson and leaves Reid wholly unsecured. It was the possibility they nad! to guard against to prevent Nelsons making an • arrangement with Reid against them. Counsel ihaving dealt wit!h the correspondence and cited various authorities, including the House of Lords, concluded by holding that the plaintiff had' entirely failed to establish his case, and ought to be nonsuited. Mr. Harper, following on behalf of Mr. Johnson, moved to nonsuit, and argued that the plaintiff should elect which, claim he purposed to stand by, whether for recission of contract or for damages as claimed for conspiracy. Counsel dealt with the evidence as affecting his client, and submitted there was nothing to show £c had sought the (position of manager of the works. From the very first he had acted according to his lights and idea»s in an honest, straightforward manner in the interests of the different parties it was his duty to represent. At the conclusion of counsel's address, the Court adjourned until the morning.