DISTCICR COURT, AUCKLAND.

Waikato Times, Volume IV, Issue 230, 30 October 1873, Page 2

DISTCICR COURT, AUCKLAND.

(Before his Honor Thomas Beckbam, Esq.) Hughes and Message v. Thomas.— Claim £48 11s 3d. —Mr Laishley and Mr Kissling for the plaintiffs ; Mr Rees for the defendant. This was a case of considerable importance in respect to partnerships between workmen for building purposes and the acceptance of contracts upon part responsibilities. The plaintiffs were carpenters at Ngaruawahia, and ihe defendant is the proprietor of the Central Hotel in that place. About November, 1872, lie contracted with Hughes to build an addition to his hotel for £125. There was no written agreement, and the contract uas simplr a verbal arrangement. Some time after the work was commenced, according to the plaintiffs' case, a partnership existed b tv pen Hughes and Message, and the work, it wns alleged, was continued with the defedant's knowledge, under the pnit-iership But this latter fact thn defendant denied nay knowledge of +'.ughes, however, shortly nfterwards absconded, and the defendant; camejfco know that the work was not done in a workmanlike manner. Message received from the defendant a sum of £20 to pay for materials, and an order upon a Mr Mabin for £50. It appeared that Mabin was to pay £50 as his share of the cost of the building. The fact of Message receiving the money (£2O) and the order for £50 were relied upon as showing that the defendant recognised him as a pvtner, but the defendant denied that ho ever had any knowledge of Message being connected with the contract otherwise than as a workman employed by Hughes. There was a set off put in by tho defendant, for board and lodging, for which Massage agreed to bo responsible, and it was contended that the fact of Message making himself responsible for the board of working men was a collateral proof of the defendant's recognition of the plaintiff as having a partnership interest in the contract, but tho defendant replied that he knew Mr Message only as a carpenter who might have any job in tho place, that ho was satisfied with Message's responsibility, and only on that accouut he allowed men to have board and lodging upon hi* responsibility. The defendant further deposed that he took the work into his own hands, and after Hughes absconded completed the work himself. The defendant also said that he hnd paid a considerable sum of money to Message upon the authority of Hughes. Mr Bees asked the Court to rule whether there could be any warrant to sue on the other side. The evidence showed that the contract was made by Hughes alone. Hughes might return, md sue Thomas, and would have a right to do so. The Court had no jurisdiction unless tho parties were before it. Hughes was not before it. Mr Laishley said he had evidence of tho partnership to produce. He asked the Court to amend the record by virtue of the powers vested in the Court by the 137 th section of the District Court Act, in such a manner as would remove any "objection to a slight irregularity. There were cases (Archibald Chitly's Practice), whicli showed that where the defendant was cognisant of an irregularity and proceeded wjthout objecting, he waived his objection, and further in any case he ought to have given the plaintiffs due notice of such objection. There was no doubt whatever, that thr plaintiff had done a considerable amount of work for which he had an equitable claim for payment, Mr Rees said if Hughes returned nnd claimed lor woik done by him under the contract, Thomas could not say Message obtained a judgment against Jiim for the work. Hughes wne the person who made the contract, whom alone Thomas knew or contracted with, and he would therefore have a right to sue. There did not appear to be any authority from Hughes. There were several legal points of interest relating to partnerships which arose in the course of tho case, and "which wore discussed at considerable length by the counsol on cither aide. His Honor thought that the work ought to be paid for, but the action did not raise that question. At the same time Mr Thomas could not be placed in a position that he should be made liable to pay twice for the same work. To save the parties expense he would be willing to hear the cause in any form in which it might be regularly brought. The parties ought to go to arbit ration. Mr lines : Mr Thomas said he had paid more than tho contract price, and had to i finish the contrrct himself. Mr Laishley pointed out at what a disadvantage the plaintiff Message was plneod through no j f nilt of his or of his solicitor, a« it win simply impossible to obtain Hughes's authority to sue, he being nwny. And he stated Message was quite agreeable to arbitration. It was then agreed, in accordance with the suggestion of his Hono > that the defendant's expenses! being pnid the case should Ik referred to arbitration. Orda* nude accordingly.