SUPREME COURT.

Dominion, Volume 6, Issue 1794, 5 July 1913, Page 14

SUPREME COURT.

SAWMILLER AND BUILDERS. PAYMENT OF TIMBER. An interesting reserved judgment was delivered in the Supreme Court yesterday morning; by the Chief Justice (Sir Robert Stout) in an which aroke out of an arrangement to pay, by transfer of mortgages, for the supply of timlxr for house building. The parties were James Drysdale. sawmiller, of Nirealia, plaintiff, and William Joseph Forking, builder, and Annio Perkins (wife of James Ferkins, builder), of Wellington, and carrying on business under the stylo of F. and W. Ferkins, defendants. At tho . hearing, Mr. C. P. Slierrett, K.C., with Mr. T. M. Pago, of Ekctahuna, appeared for Drysdale, wliile Mr. M. Myers appeared for fcho defendants. Features of the Case. In tho statement of claim it was sot forth that Drysdale commenced to supply timber to tho firm of Jf. and W. Forking in August, 1001, according as tho laltsi ilw«; j,

business in Wellington. It was agreed between thjO parties at the commencement of the dealings that Drysdale should supply timber on credit, and that F. and W. iferkins should from time to time transfer to Drysdale such mortgages as they might think proper. F. and W. PcTkins further represented and warranted (so it was alleged), that such mortgages so to bo transferred would be "good mortgages" (meaning thereby that such mortgages were a sufficient seourity for the repayment of the principal and interest). There was also an understanding that I>\ and W. Ferkins should collect the principal and interest when due, and remit the' amounts to Drysdale. The value of the timber supplied by Drysdale, from August, 1901, to March, 1908, was .£3950 Bs. 5d., and the amount of mortgages handed to Drysdale was .£3512 18s. Id. The payment of the difference (.£137 10s, 4d.) was secured by a mortgage, dated June 5, 1908, t whiih had not yet fallen due, and for 1 that reason he was not suing to recover t this sum. He alleged, however, that, in respect of several of the second mortgages held by him, interest was in arrear and " tho principal had beoome payable; marer over, 6ome of the owners had abandoned i the properties, and the mortgages were., i of no value. After giving credit for the . amount of mortgages not proved value- ' less, or realised, Drysdale claimed to re- ■ cover the sum of J82711 Gs. 10d., which ■ he alleged was due, either for timber sup- . plied or by reason of tho warranty given . that the mortgages were "good," or by reason of the promise to see that tho > amounts due were paid. Drysdale also I asked that acoounts be taken and that i F. and W. Ferkins be declared liable for tho payment of the deficiency. In the statement of defence, I'. and W. Ferkins generally admitted tho transac--1 tions in timber and the transfer of the mortgages. They said that the arrangement was that they were to receivo credit for tho mortgages as for cash, and that 1 in the event of the mortgages not being paid, or failing to realise their full amount and interest, Drysdale was to have no claim upon them (1\ and W. Ferkins) for the deficiency. The Court's Decision. His Honour said:—"ln the face of tho fact that the mortgages were transferred, and were not sub-mortgages, and of the fact that nine were taken direct, and of tho fact that the mortgages were credited in the account as payments, I cannot hold that the plaintiff has proved the arrangement he sets up; and it appears to me that tho onus of such proof is on him. He has accepted mortgages directly to himself, and ho has had the sole control of them, and with, them the defendants could not interfere. ... Certainly, tho firm has been able to cast all the risk of the firm's speculations upon the plaintiff; and a keen business man would not, one may suppose, have been so foolish or unbusinesslike as to allow another business man or firm to over-reach him. I do not sec. however, how it can be held, in the face of a case of oath against oath, and in the face of the form and manner in which the business was carried on, that the plaintiff has proved his case." In regard to the question as whether there was sufficient security for the mortgages, hia Honour said that the evidence did not show that at the height of what is called "the boom" in land in Wellington, the mortgages were not good mortgages. As to the last question as to whether there was a guarantee that in any event the firm (defendants) would see that the amounts due on the mortgages were paid, his Honour was of opinion that tho plaintiff (Drysdale) hod not discharged the onus of proof castrnpon him. Judgment was accordingly given for defendants with costs as on a claim for ,£IOOO, 15 guineas for second day, witnesses' expenses and disbursements. IN CHAMBERS. In the Supremo Court in Chambers yesterday tho Chief Justice (Sir Robert Stout) heard applications in the divorce case, Fuller v. Fuller and another. Mr. T M. Wilford, on behalf of the respondent (Mrs. Fuller) asked for increased alimony, pendente lite, and also for increased security for costs. An application was also made by Mr. T. Young, on behalf of the petitioner, for the proceedings to be taken in camera. By consent, Mrs. Fuller's allowance was increased from M per week to 46 10s. per wcok, and she was awarded £10 for present needs, while security for oosts was increased from JCISO to .£250. His Honour ordered the case, which is set down for heaiing on August 11, to be taken in camera.