GONE AWAY.

Dominion, Volume 4, Issue 1017, 5 January 1911, Page 2

GONE AWAY.

AND LEFT TROUBLE BEHIND, PROMISSORY NOTES.

Mr. Justice Cooper yesterday delivered his findings of fact in tho cape of George, Doughty nnd Co., of Wellington, merchants, v. William Ilenry Nash, of Wellington, leather merchant, a claim of ■£37G -Is. on hvo promissory notes, and d counter-claim by Nash for ,£3OO.

In the transactions which had led up to the proceedings a considerable part had been played by Granville Hunt, who has since lelt New Zealand nnd whose affairs arc in the hands of the Oflicial Assignee. When the case was argued tho other day, by Jlr. 1\ G. Dalziell tor the plaintiffs, and Jlr. C. U. Morison for the defendant it was admitted that Nash gave tho two promissory notes to Granville Hunt, and that the" latter endorsed them to the plaintiffs, but the defence alleged that tile plaintiffs knew at the time that these and other notes had been given by the defendant to Hunt as in payment for shipments of leather, which, according to a course of business between the defendant and Hunt, of wbicli the plaintiit's were aware and' had noticc, Hunt from time to time imported and delivered to defendant. On June 15 (defendants further alleged) the plaintiffs received from Hunt, the bill of lading in respect of .1 shipment of leather ex steamer Indradcvi and paid on his behalf tho bill of exchange, drawn by tho consignors, . and that when the'plaintiffs. did so they had had notice that Hunt had already, sold the. shipment to defendant, and that the promissory notes sued 011 covered the price of tlie shipment. The plaintiffs delivered ,£55 worth of tho shipment to the defendant, out of the total of .£339. The defendant, therefore, contended that the plaintiffs were in no better position than Hunt would havo been had he retained the promissory notes and received the goods,and that to the extent of the value of the part of .tho. shipment which they had refused to deliver to the defendant they were not entitled to recover on the notes. The defendant had paid the plaintiffs .£9l ISs. in respect of the difference between tho invoice price of the goods which they had refused to deliver and the amount : of their claim -in respect of tho promissory notes. The .defendant counter-claimed ,£3OO as damages in "respect of tho' non-delivery to him of the major portion of the shipment'of 'leather. His Honour found, inter alia, that, on June 20, a definite verbal agreement, was then made and Hunt agreed to sell to 'Nash and Nash agreed to buy- from" Hunt the Indradcvi shipment intact upon the value as stated in the letter of June 7, of JE335. It's invoiced value with bank charges appeared, however, to have been .£3IS 7s. lOd. 1 The consideration for such purchase was the' withdrawal— equivalent to the cancellation—of Hunt's three promissory notes totalling JG24I Is. Id., and the set off •of other amounts due by Hunt to Nash and a subsequent final adjustment of accounts. Nash subsequently withdrew the three bills from circulation, paid Hunt the. sum of. JIIB JBs. sd. for duty.,on the shipment. On July 11,' or thereabouts, Nosh received two hales ofleather—part of tho shipment. On making inquiries. as to the balance of the shipment he found that George, Doughty and. Co. had obtained it" nnd he had not since'received any further part, of .it,,' No.bill of lading was handed over, to Na.sll. . Nash's. practice in reference .to' prior shipments v;as to give Hunt'bills for the shipment and money for. the duty, and Hunt would then settl? with the bank, pay the duty, clear the-goods, and deliver them to Nhs'n. Nash had "un to a comparatively recent period, implicit , confidence in Hunt.

Broken Premises. George,' Doughty and Co., on June 9, 1910, advanced Hunt a sum of .£IOO, Hunt stating that lie required it to take up the Indnulovi shipment, and he promised -to . deliver them trade bills a? security. •Ho'did not do so. He used the money for another purpose, but George Doughty .ami Co. believed his representation. Sublseciueritly&they lost confidence in Hunt,, and' Mr. endeavoured to gat Hunt to : repay .the JilOQ, but . without success. /Promises;.were mftdeby Hunt fo do so/\ r butVtliess y ''\vere not fulfilled. On July 1.1 Hunk'wrote, to Mr./Dcugjity. a letter, tin. : wlridli' ho tasked- him ..yfce-' thcr his firm would' take up 'and handle' for' him the Indradevi.\.shipment- cf leilther. Mr. .Dopghtjvsaw Hunt at Iris house, and', a verbal arrangement was then made by : \'w]ucli ; ,George Doughty and Co. agreed tV take up .-the -shipment- by buying the\goods foi*- their invoice value and paying the bank, and that Hunt was to give them, certain goods, cigars, locks, gas mantles, etc'., iir.Hunt's office as security for the «£100..' /George, Doughty and Co. had already received some, boots, and coats to go; against , the c£loo, the value of which has :not been stated.! Hunt told Doughty that .Nash .was entitled .to two bales of the shipment. • On July 14, Doughty obtained, from Hunt an order to take up the shipment. 1 ' > ■. ' : George, Doughty and Co. paid the Bank of. New South ''"Wales; tho amount of the draft and interest totalling G«. : .-Tliev also-had to pay £3i 17s. Id. duty, and «£56 "los, general average, and they obtained tho goods, delivering two hales to Nash.

Hip Honour also found as a fact that Doughty believed Hunt's representation that Nasli was entitled to only two bales, but lie also -found that . there was sufficient material, in tho letters of July 33 and 15 to put- Mr. Doughty upon inquiry, and to indicate that Nashhad some further interest it theVhipni<;nt beyond tho two bales. Miv Doughty made no inquiry. • Position of Parties- in ths Action. Nnsh could not have obtained any part of the liulradevi- shipment without paying the bank. He would have had to pay .£321 6s. beforo he could hnvo obtained the bills of lading, .and also the duty and general average before lie could have obtained the goods. He had, therefore, not, in fact, lost anything by George, Doughty mid C'o.'s 'omission to make inquiry of him, but lie had obtained two bales of leather, the price for which was included in the draft taken up by George, Doughty and Co. On the other hnnd, George, Doughty and Co. had obtained the. goods which were in Hunt's store, but they had lost on the .value of tho leather the two bales which Nash liad received. " ' ' ■

Questions to bs Argued. Upon these facts the questions of law to be argued would be:— 1. Is Nash entitled to receive from George, Doughty and C'o. tho balance of the shipment or its value? 2. If lie is, nre George, Doughty and Co. .entitled to a lien on the shipment or its proceeds for tile amount, paid by them to the bank, in order to obtain the bill of lading, and for tho duty paid by them? , 3. The -general average has, I understand. to be refunded by an insurance company. Who is entitled to the refund —Nasli or George, Doughty and Co.?