WRONGFULLY RETAINED

Waikato Times, Volume 113, Issue 18874, 18 February 1933, Page 7

WRONGFULLY RETAINED

MILK CHEQUE DISPUTE. MAGISTRATE’S DECISION. JUDGMENT FOR PLAINTIFFS. Holding that claimed e had been wrongfully , \ oV ember ant out of the on^ milk cheque, - • . Slivered S.M., in a reserved dec s . l0 rambridge, in the Magistrate’s Com t C ia^ e to-day, gave judgmen J gd) by full amount claimed _(£ j F Messrs. Lynch and Qua-UJ Co L Strang) from the G£gjoge R op. Dairy Company Limitea Dallimore). His Worship, “The plaintiffs," said His vv°« “claim £59 4s 8d as b S the company to them at Januar y 31, entry of the plaint o . Ja pplie d to 1933, in respect of m:‘“M,, fac tory the defendant compan. during October, 1932 ; Blrrm i e The “The facts are quite si ina P v fQr plaintiffs were piking h supplie d one Sands, and the nnm factory ,o the detehdent cempahV S far making cheese. D d bcthe plaintiffs supplied mil a en.il.ed to «»- £ • „,„ There was a d plaintiffs and the factorj m iik regarding the quality b(j}ng dis _ supplied, and the plam flde sm ,_ .p?iers fled to° e the defendant company* r— to the Bruntwood factor}. d;rec- . “The matter came before the mre cheque was paid, to PW P . • tbe due upon shares held by him in m company. At the same time the* pm_ ported to make a call up uncalled tiffs to the full extent of the uncau-a capital outstanding on . . Contemporaneously wlth m J [ S 1 fp, 0,11 T U'7n™ EBO oUot amount called up l 1 3", rP _ their liability to the plaintiffs and _ mitted them the d irec tors plaintiffs now say that the dUrecltors of the company have unlawfull} ducted those moneys and claim recover that amount. “It is rudimentary company law that a member of a company is liable to pay only the uncalled capital of his shares in accordance with the terms of the memorandum of association and articles of the company 1 have perused the memorandum of association and articles .which were put m in evidence, and it seems to me hat the only power which the directors have to call up uncalled capital when a supplier takes his .supply elsewhere is contained in Article No. 1. winch provides that should a member m any season not supply sulllcicnt md.v iJ produce his quota of cheese per share the directors may call upon him to pay-up-his uncalled capital, wilhm three^months'.after-sen-ice .iff a,notice requiring hlm-to do so. 11 would .seem .that-, that is a -power which in, a-ih;i,|o- - of cases could only he exercised by. the .directors at the end. of the season, -but there may possibly ar.so cases where the impossibility of . performance .oould be established .during the season. - No notice has been given to the plaintiffs under this article. “Asdo-the action of the directors in purporting to make the uncalled capital on the plaintiffs’ shares immediately payable by levying a call, no notice of call In accordance with the articles was ever given as required by Article-No. 19. Furthermore, 1 do not think that under the circumstances, taking Into account the express power conferred on the directors by Article No. 18, that it would have been a proper course for the directors to pursue—to make a call upon the plaintiffs alone and not on all the shareholders.

“The amount claimed being a debt presently payable at the-’ time the plaint note was entered and the uncalled capital upon the plaintiffs’ shares not having become due and payable by any steps properly taken under the articles Hie plaintiffs arc entitled to judgment.”

Judgment was entered accordingly for £59 4s Bd, with court costs £2 10s and solicitor’s fee £4 3s.