DISTRICT COURT.

Wairarapa Daily Times, Volume 3, Issue 739, 9 April 1881, Page 2

DISTRICT COURT.

FRIDAY; II

[JBeforb" HirHonor Judge sfiavrl] : ?

William. Cave v 'John L18719s lOd. Mr Beard for plaintiff, Mr, Izard.for defendant.. ■; A jury was sworn .consisting'of Messrs' Easthope (Foreman), Fannin, E.. Kibble-, white, and Galloway, Messrs Jago, Hales, 5 and.J, 0. Ingram were fined .£6 for notanswering to their names. It .appeared subsequently that there.had been a misunderstanding as to the time/and the fines were remitted.

...Mr .Beard in opening the case stated that his learned friend and himself had reduced the case to a mere nothing! .'Mr Cave was suing as surviving partner- of the firm of Hastwell, Bannisterj Cave, and To this Mr Izard would raise the objection that Mr Cave should sue in' his own .name, and as' assignee. of .'Mr Jones. :,:'l.>

,':<A..W. Cave deposed—l- was a member of the firm of Hastwell, Bannister, Cavej ; and Jones. Hastwell and Bannister ore dead, and Mr Jones has filed a declaration of insolvency. 'The deed "produced is the deed of partnership, - ' '•' ,■'.' In answer to Mr Izard-I do!riot know who was the trustee in Jones' estate.! Mr Jones became bankrupt before the deaths of Messrs Hastwell and Bannister. His trustee has not received payment of any of his assets in the firm. Cannot say how much of the- debt was 1 incurred prior to Jones'bankruptcy. !. .-' ■, Mr Beard admitted that the whole of the debt was. incurred prior to Jones' bankruptcy, in 1878,, •"..• Mr Izard said that their .case was that. Mr Hastwell had beenpaid* the account. The Court s,aid the case Btood thus—• the claims, work and labor, are admitted, but the Statuteiof Limitations is brought forward as a special plea and there is also a substantive plea, of having paid Hastwell Mr Izard also held that ithe estate of Jones should be a,party totheauit. Mr Izard. The debt was contracted in 1874 and 1875, and Mr Jones'became bankrupt;in 1878. If they admitted the claim as' it was now made, Mr Jones' trustee could sell him over again.for the amount, as well as the representative of the late Mr Hastwell.

The Court said the latter point was a question of law, which it was not necessary to submit the jury, and argument upon it could be reserved. It also stated that as a general rule the death of a partner dissolved the partnership, unless there was a special arrangement to the contrary.

Mr Izard said that MrHastwell was a prominent member of the firm, and that the defendant had dealings with Mr Hastwell. In fact Mr Martin and Mr Hastwell had cross accounts and the amount owing to Mr Martin was about' £4OO, They met together in the month of June, 1878, and had a settle-' nient of accounts, They agreed to write off each other's debts... He would show that this was carried out by a written memorandum, A sum of a shilling was agreed to as the balance owing to Hastwell. The memorandum was as follows • -" Wellington,, June 28, 1878. Received from J. Martin the sum of one shilling to square accounts to date Signed, W. E. Haßtwell and J. Martin." He claimed that these fads amounted to a settlement of accounts, and there was nothing due to Mr Cave.

John Martin deposed :-I am the dethis action.--1 knew the late Mr Hastwell,'and had business relations with him for some years before his death. There were cro3i accounts between us. He was indebted to me for a considerable amount for commission on discounting ; for my bring surety for his mail contracts, and for running horses and bullocks on my .land at Battersea. Mr Hastwell met me at the New Zealander Hotel in 1878, and I offered to squaro accounts for the sum of one shilling, and Mr Hastwell accepted the offer. I reeognise the handwritings on the document. The balance at that time was considerably in my favor.. . In answer to Mr Beard,-Never struck a balance or put anything fn the books. I trusted entirely to MrHastwell. I was aware that Hastwell was. mixed up with Hastwell,'Bannister and Co., and Hastwell, Macara and Co, I never spoke to any other members of the firm about the accounts, I should say that Mr Hastwell owed rae £4OO. I can't give the items of the account, I cannot say what horses were running at Battersea. I was dealing with Mr Hastwell as the managing man in. all matters* The guarantee of the mail contracts had nothing to do with the Company. . In answer to the Court. -Mr Hastwell had not the exclusive use of Battersea. In answer tq Mr Beard.-I cannot tell whether there was £5 or £3OO owing to me on MrHastwell's private account, Accounts were frequently rendered to me, Mr Frethey applied to : me on one occasion 1 for payment. Mr Cox, I believe, spoke to me about a private account of £20. ; I told him that we had squared the' accounts. Mr Cox asked to see the document, but I declined to shew it him at the time, Mr Frethey might have told, me that Hastwell, Bannister & Co.'s and Hastwell's accounts were to be kept separate. Hastwell, Macara and Co. have sent me in an account which I consider to be the same as the other. I cannot swear positively that ' Hastwell, Maeara and Co.'s horses ran at Battersea. I have no doubt that Hastwell, Bannister & Co. 's horses did. I knew that the horses were Hastwell's, and that Hastwell." was' in partnership with Bannister, Ido not know what I owed Hastwell in December, 1879. • .. '

In answer to Mr Izard.—l knew Mr Hastwell as 'a member of the carrying firm,, and that the horse 3 used for the business were running on my land. I did not know that Cave and Jones were partners in the firm.

Thomas. Frethey, called, deposed.That some time ago he was acting as collector for tho firm of Bannister. and Co, He spoke to Mr Martin at,Waihenga,'in 1870;' and he,said in an off-hand way that He was to'consider % account settled, By Mr Hastwell's instruction!, witness wrpte to Mr Martin to tell liim.');M the accounts of the carrying, company were.-to be kept separate. I received a note from Mr Schwartz stating that all accounts were, settled to Juno, 1878,1: He had acted for the company as collector. till the present time.

In answer to the Court •—l'made application by writing to Mr Martin for an account prior to 1876. When Mr, Martin said at Waihengal was' to consider the' amount settled I did not consider it. settled, apd made fupt)ier' subsequent applications, I did riot keepthe books of the firm ; I completed.the posting of them. I was : .not made aware of the shilling receipt by Mr Haßtwell..' ,'.*." In answer to Mr Izard: Iwas instructed after meeting Mr Martin in 1876 to write again to hini, by Mp. Hastwell.: No legal steps were taken, to my knowledge, ■betweenWft and .1881 for. the recovery) of the accounts,'; • In answer to.Mr Beard,-! have been continually "applying . for ■ pay. merit- 'between .1876 <■and;lßßl. Bylegal steps, Imoan no, summons had been taken,out;, Mr Martin'has' never showed me a receipt.:,.' lasted for it but he never produced it; ■.,-..'•' ~■/.! ',• '-•*& J.Q; Cox deposed, I am executor to the late Mr Hastwell. ,1 saw Mr Martin twice in Wellington, who said he had had

.'a'settlemeut with Mr Hastwell. I to see the receipt He said it, but did not produce it. : I offered meet Mr Martin at any placei he" : appoint, but he thought I should take'hH wordfor.it. '. ••^^■ ;^^B InanswertoMr Izard.—The' Hon was within the last yearV I neyaH went up tohis ho\ise, I was willins; to fH up to his house and seeit. .:,-.■' : ■ .Mrlzard r adßressingl;hei-jury; said was in a difficulty,.the case that he-had hothingioVayv - It that Hastwelhwaa, the; head,of. and that' a settlement of IHH was made 'in 1878. *; He' really had no : . meet." There was no pretence of ;u fraud'ahd ohicahery.fc-The settlement was ■ ' entirely a friendly one' the nominal condition* being; iritroiduced -tof make the transactions perfectly legal. 6 •'The date on ; 'wHiqH!the\fiejtbVeifieiit : i^op^pladb,' waa subreqiieht; to. ailt'the itemsVlaimed in the Martin's own ac- ! count of ;theVtr.anßaclion|wa'B*cgnfirmed by the. evidehce^of-^boft?>Mr' Frethey ■! and-Mr, Gov; aVjieverjnstage. The jury could- not "dome! to any other conclusion but::that:the;,debt had beeb paid;- His '.friend anight i,'say' thafc; Mr,.;; : Martin could ; not'B9tdoffi a against a. debt due-to" the. quoted "anauthority to' jaho w case cited it! was ruled tnat(it' r was corapßtent, for :one : to settle ■ an account, 'withouKdonsulting the other two. He olaimed thatßastwell had a right to act for the company in settling with .Mr Martin*;; 'He pointed out that the account had been allowed to slumber for a period of six years.'' '.Why did- they not protest in 1878 if 'they were not satis--fied that the account had been fairly settled f.-'MrCaveiwasminded to have a shot Birhply. becauaerhe "thought defendant was wealthy and coiild:pay. ; • ■• The Court-stated, that the-case quoted by Mr Izar,d ; had been overruled. A partner had no'power as an ordinary rule to discharge his private debts out of the partnership'assets! '" ' : : Mr Beard said the case for the plaintiff waathat .Hastwell, ! Bannister.-&Co, had a claim against Mr-Martin for the amount stated' in the bill of particulars, The plea of the document wasnot sufficient to discharge the debt. -He objected that the document was signed by Mr' -Haßtwell in his private capacity only! 'The name of the Company did not appear in it in any shape or way. The plaintiff could not bring forwardthe testimony' of;Mr Hastwell to rebut jjfhat of Mr Martin. Had Mr Hastwell been able to give evidence he would have'convinced them that the settlement: was'.only one for. his private accounts, Referring to Mr Martin's case, he pointed'' out that it was founded entirely oon ;his recollection. As &'" a business ; ..man, Mr Martin would have entered ■ the'.'items if he ever intended to claim for them. -Mr Martin couldnotgive a single item. In the conversation between Mr Martin and Mr Hastwell. there waa: not, a jvord said' relative to the company., .Referring to Mr Martin's claim for grazing,, he held that any horse running there wsb Mr Hast-' well's private property. Mr Martin had admitted that he had'not acted in a straight forward'manner by* refusing to produce the receipt when called upon to do so.' Referring to the delay in settling with Mr. Martin, he "claimed that the fault lay with the defendant who was a difficult man to close with, They had not slept on their rights, but had-repeatedly rendered their aocountoHe alsoreminded the jury that Mr Martin had been specially notified that the accounts of the company Bhould be kept separate.^ His Honor, in summing utp s j&sid the. present action was to recover ri Bum of £187.19310 d. The plaintiffs l|il|aban. • doned of this sum £42 on the groulßNhat it was not legally recoverable! "The question of fact to be submitted to the jury was a Bimple one, viz.: Was .the settle.ment of accounts arrived at in June, 1878, asettlement qf all accounts in whicft one or either of them'had any jnierpst whatever, or was it simply a settlement of private accounts. The only affirmative evidence was that of Mr Martin, who swore that it was an absolute settlement of all accounts.' : There was mo evidence of any private account between Mr Martin and Hastwell, There had been no suggestion of any priyate debt due to Mr Martin apart from the business transactions named, If this document was for a private account, liow is it no information had been elicited in cross-examination as to what it referred tot Virtually Mr Cave shewed in his evidence that he knew nothing of the matter. Mr Frethey's evidence shewed, that the defence to the action was not an after thought, aB Mr Martin had intimated it to him in 1876. Mr Cox, in the performance of a legal duty as an executor, made'a demand to ' see the document, but he. did not know whether Mr Martin waa huffed at the demand, but he evidently refused to produce it, and after, this. refusal legal . proceedings were taken."" The ouej. tion left. for the jury to jkcide was the question whether", is a matter of fact, Mr HastwehYin signing the document, intended to release Mr Martin from all his liabilities, both as regarded the company's account as well as private accounts, The Jury, after nearly an hour, returned a verdict in the affirmative, and His.Honor accepted it as a verdict for the defendant.

His Honor said that the plaintiff, in the state, of Mr Haßtwell's books,- had acted quite right in-bringing theaotiont