The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1853-03-29 00:00:00

MONDAY, MARCH 2

(Before Mr. BARON MARTIN.)
'unity AND KENNEDY V. FISHER AND SON.—ACTION
This was an ac.t.tioGnAibNirso•ru .4tut
against
Et Rh
eS .
defwho are extensive auctioneers at anchester), byendants Me( ssrs. Bury and Kennedy, formerly the well-known machine
makers of this town. The defendants had paid £l9O into
court.

Mr, Knowles, R.C., and Mr. Holland, appeared for
the plaintiffs ; and Mr. H. Hill, Q.C, and Mr. Monk,
for the defandants.

HOLLAND having opened the pleadings,
Mr. KNowLEs, Q.C., stated the plaintiffs' case. The
Plaintiffs were gentlemen who, until recently, carried on an
brtensive business in Liverpool as iron founders, and they
ought this action against the defendants to recover
certain sum of money which the defendants received,
hand which belonged to them (t le plaintiffs
j'i_e_fen_dants were auctioneers, and lie (Mr. Knowles) bweo.
ilyviad were in a very large
.way of business ; and from the
OclY respectable manner in which they were spoken of,
b°wedwas much surprised
me thatinto court the defendants should have
In the year 1851
this action .
ti Plaintiffs arranged to go out of business ; and at this
~,;I'ln.e the defendauts were employed to sell their stock,
th lab was a very large one. It was known that the sum
would be at would be received for the stoc
i"siderable •, and instead of giving the defendants
doper centage on the proceeds, as was freq:
,ye t.
agreed
when the stock was not very lar,
'lreed with the defendants to accept a certain sum intea
theyrornission, amounting to £3OO, and in addition tothisx.
were to be paid certain other expenses, but no e
ueloses out of pocket. The necessary steps were taken by
defendants, and in August of 1851 the sales took
Watbat is, the main sale, for a small sale took place
.ilods---the proceeds amounting to some £17,000
ari.,,0.c00. Most of the purchasers resided in Liverpoo.
" it was agreed that the plaintiffs should colle.ct the
Mud—one
Y• Certain of the purchasers, however, resided in
0 ester, and it was arranged that the defendants
receive the money from those parties, and it was
1,-0 obtain the payment of that money that the plaintiffs
deft came before the court. After it was known that the
to cOdants had had sufficient time to get the money paid
clef them, the plaintiffs asked for an account, when the
Lalodants said they had received the money, but they
l'iaoa claim on the plaintiffs for a considerable amount.
Plaintiffs on that replied, " Well, then, give US

r aci!ou

I show us your vouchers." Now,
e surprised to hear that for a great
Mr. Bury, o of the plaintiffs, re-
nt' the defendants in Man-
an account from the defend-
quently he was unnhl to ascertain whether
the defendants were entitled to retain all the money. The
matter was at length placed in thehands of certain attorneys
in Manchester. Letters were written to the defendants
by these attorneys, but to none of these letters did the
defendants make any reply. At length, Mr. Bury had a
last interview with the defendant, Mr. Fisher, jun., and
during that interview, Mr. Fisher snapped his fingers in
Mr. Bury's face, which, of course, put an end to all fur-
ther negociation. He (Mr. Knowles) should be obliged to
call one of the defendants into the box, in order to prove
that they had received a certain amount, and he believed
that amount would turn out to be from £BOO to £OOO. No
set-off was named, but he was willing to allow £3OO, and
he would also allow any fair and reasonable amount of

ie jury wo.

!(1 at the offi

.ster, and he could not

expenses to which the defend,nts might have been put.
He presumed he must be entitled to a verdict for the
plaintiffs, as there was no plea of set-off on the record.
Mr. Bury called.—l am now living in Sheffield. Up to
1851, I was in partnership at Liverpool, as au ironfounder,
with Mr. Kennedy. In the year 1851 we agreed to dis-
solve partnership, and employed the defendants to sell the
stock by auction. We agreed to give them £3OO, and a
further allowance for men and expenses of advertisements.
The sale took place on the 7th of August, in 1851. There
was a small sale afterwards, and I asked Mr. Fisher if the
£3OO we had agreed to give him was to include commis-
sion for that sale, and he said it was.
Cross-examined by Mr. Hill, Q.C.—I believe the first
sale occupied 35 days, and the second three days. We did
not agree to give the defendants' man ss. a day, and 3s. 6d.
expenses. for lotting. We agreed to give him 6s. a day.
Mr. Fisher. jun., examined by Mr. Knowles.—l am
one of the defendants. We were authorised by the plain-
tiffs to receive the money for goods sold to people at
Manchester. We received the sum of £839 18s. 2d. '
By Mr. Hill.—Out of the £839 I paid my travelling
expenses, amounting to £34 ; I also paid £lO to the man
for lotting the goods. Ho was employed at the plaintiffs'
sale from April sto November 30. His usual wages were
£2 Bs. per week, but he was paid on this occasion at the
rate of £2 ss. We advertised the sale in the Liverpool
and Manchester newspapers, and also in several other
newspapers in England, Ireland, and Scotland. When I
called upon Mr. Bury at Liverpool, I did not snap my
fingers in his face. Mr. Bury was very offensive to me.
He asked me why I had come to see him, and said he
did not know that there was such a person. I then said
to him that the best thing I could do would be to take up
my hat and walk out.
Mr. Kennedy examined.—l was present when the
bargain was made with the defendants. The agreement
was that the defendants were to have £3OO, and, in
addition, the expenses for catalogues, advertising, and
the defendants' man for lotting.
Mr. HILL, Q.C., then addressed the jury for the I
defendants, altogether impugning the case as made out
on behalf of the plaintiffs. lie said that Mr. Fisher
would be put into the box, and he would prove that the
defendants were to be paid all their expenses, in addition
to a fixed sum which was agreed upon; and when they
considered that the catalogue of the sale occupied 251
pages, that there were 5811 lots, and that the sale
actually occupied 34 selling days, and that after the sale
considerable time was occupied in delivering the lots, it
would be for the jury to say, after they had heard the
different witnesses whom he should call, what the real
bargain was between the plaintiffs and the defendants. It
would be proved that the £l9O paid into court, by the
defendants, was more than the sum which they were
called upon to pay.
Mr. Thomas Makin Fisher, the senior defendant, ex-
amined.—ln consequence of a letter I received from the
plaintiffs, I went over to Liverpool. I saw Mr. Kennedy.
He asked me what my charge was for selling. 1 said 24
per cent. Mr. Kennedy then said, " This will be a large
sale, and we had thought of paying you £lO a day, but I
cannot say anything until I see Mr. Bury. I afterwards
went to Liverpool again, and saw Mr. Bury. We then
agreed upon terms. I said the sum named to me by Mr.
Kennedy would be perfectly satisfactory to us, together
with all expenses.
By the Judge.—There was nothing said about £3OO at
the time the agreement was made. I heard nothing about
that sum until after the sale was over. _ _ _

By Mr. Monk.—l was personally employed in the sale
sixty days. We were altogether employed 92 days in the
sale ! Mr. Sowler, of Manchester, printed the catalogues
and posting bills. I considered his charges, were rea-
sonable. _ _ _

V
----
Cross-examined by Mr. Knowles.—No sum besides
£lO a day and all expenses was ever named when the bar-
gain was made.
Mr. Thomas Sowler, examined by Mr. Hill.—l am the
proprietor of the Manchester Courier. I also act as
agent for inserting advertisements in other newspapers.
The advertisement for this sale was inserted in thirty-
two newspapers. Altogether the defendants paid me
£163 18s 6d, for catalogues, posting-bills, and advertise-
ments inserted in the different newspapers.
Other witnesses proved different payments made by the
defendants for expenses incurred in the course of the sale ;
and the defendants themselves deposed to their travelling
and other personal expenses, which they said amounted
to £lO5.
Mr. Knowles replied, on the part of the plaintiff, and
the learned judge having summed up,
The Jury, after a few moments' deliberation, returned
a verdict for the plaintiffs. Damages £94 19s Ild. This
was in addition to the £l9O paid into court by the defen-
dants.