SUPREME COURT, NAPIER.

Daily Telegraph (Napier), Issue 3269, 23 December 1881, Page 2

SUPREME COURT, NAPIER.

CIVIL SITTINGS.

THIS DAY.

(Before His Honor Mr Justice Richmond, and a special Jurj) SUTHERLAND V. BANK OF N.Z.

Mr Lascelles appeared for the plaintiff, and Messrs Cotterill and Cornford for the defendants.

Mr Fryer was chosen foreman of the jury. Mr Lascellee, in opening the case, said it was a very simple one, involving very little matter that could be called a matttr of law. The plaintiff had been some time a sheepfarmer at Mobaka, whrre he possessed a cheep run in July, 1879. During that raontb be was obliged through pressure to sell his run, and for this sale a sum of £200, as commission, was taken from plaintiff by Mr Balfour, the manager ofthe Bank of New Zealand, which plaintiff now sought to recover, together with £78 10s charged as discount, for which it would be shown the hank manager himself was liable, also £46 17s interest on the amount. The plea set up was a simple denial, so it be anticipated that the evidence would be directly contradictory. He would submit whether the £200 was paid to the bank manager, and whether it was paid under pressure or coercion, or voluntarily, and of defendant's own free will as commission for the sale of this estate. There was also a sum of £78 10s charged as discount on bills which plaintiff was never aware be would be charged with The only point of law was the liability of banks for the actions of their servants. He would show with regard to that point that banks being corporate bodies are actually responsible for the actions of their managers, besides tnis money in dispute was obtained under the name of the Bank of New Zealand. It was also for the jury to say whether or not the plaintiff would have paid the money to defendants in any other way than under coercion.

John Sutherland, sworn : I live at Mohaki, and was lately a sheepfarmerV In July. 1879, I carried on business at Mobaka, aud was owner of a property ia partnership with Mr Newton. During that month Mr Balfour, manager of the Bank of New Zealand, called upon me to pay up my overdraft. Ha said he had instructions from bis inspector. I said I

■would sell one of my places to pay it off, and would put it in Mr Miller's hands for that purpose, which I afterwards did. Some time subsequently I met Mr Balfour, who asked me had I sold my place. I said not, but that Mr Miller was negotiating with a buyer, and on a certain date it would be bought. He said, " The overdraft must be paid immediately ; we have a purchaser who will bby." I said, "send him over to Miller." He objected, saying '•the purchaser will have to deal with us, and we shall have to get the commission." I told him I not pay two commissions, but that if Mr Miller would compromise with me I should pay the difference to the bank, as I did not care wbd received the cdmmiasion. Nothing definite was done then. Mr Balfour said he did not see why Miller should get the commission, and that unless I sold within a given time their purchaser would buy another property at Little Bush, and the bank would come down on me for the overdraft. Mr Balfour mentioned £200 as commission. That waa £50 more than the highest commission agent would have charged. Mr Balfour told me to go home, and write a letter to the effect that I would give them the commission. I understood him to mean the bank when he said " them." I said I might as well write it then as again. I believe I did write it on that occasion. Ie was I believe a few days afterwards that the property was sold. I met Mr Balfour at Mr Cornford'e office. Mr Coruford was then acting as my solicitor. Nothing was said there about the question of commission, nor about paying disconut on the bills. After the conveyance was signed by Mr Newton and myself, Mr Cornford said, " All I have to do now is to give you a cheque for £3,200." Mr Balfour said " there is no necessity for that, there will be no money changing haDds; it can be all settled over at the bank." William Balfour, the bank manager's brother, was the purchaser. I went to the bank with the manager and his brother. The manager there said his brother would have to give bills fur the property, but I refused to endorse the bills or pay the discount. I told him it was a cash transaction. The end of it was that his brother was to pay discount on £2000, and I was to pay discount on £1200. This was the manager's arrangement. I then refused to pay the £200 commission, which the manager asked me to give a cheque for. He said I should consider myself very lucky. I told him the commission was quite too high, and he replied that he did not care; I should have to pay the £200. We discussed the point for some time, and eventually I gave a cheque for the amount, the manager supplying me with the blank form. Duric£ the whole time Mr Balfour never spoke of the buyer or himself in the singular number. The discount which should have been charged to me was £30 There is only £3122 10s lid credited to me in the bank-book as representing the £3200 purchase money. I first became aware that I was charged with the whole ol this discount when I received ray bank-book a considerable time afterwards. Had the bank pressed me at that time for the overdraft I should have been sold out. I had no means for litigation. The manager was aware of my position. He knew me privately, and had been to my place at Mohaka on a visit. I was at the bank about two hours on the day when the conveyance was signed. By Mr Cotterill: The pressure had been put upon me by the bank for about two years. I could not say positively whether or not I received any of the letters handed to me now. Could not swear that I ever received the one dated 19th July. By His Honor: I might have received such a letter. By Mr Cotterill: It might have been in consequence cf receiving a letter like that produced that that I came down to see the bank manager. I know Mr W. Balfour, the bank manager's brother. The manager told me before I had seen Mr W. Balfour that that gentleman was his purchaser. I cannot remember when I first paw Mr William Balfour. It was not six months before the purchase at any rate. I was introduced to him by Mr Thomas Balfour, the bank manager. There was nothing said abrut the run then. After that interview Mr W. Balfour accompanied me to Wairoa and Mohaka. He went to look at the run. There was some talk aboutsellmg it, but I could not say what the conversation was. I don't remember if I accompanied him back again to Napier. There was but one condition on which he said he would buy the run, and th*t was through his brother. He said be would not purchase of Mr Miller. The run was then in Mr Miller's hands. Mr Balfour asked rue to withdraw the sale from Mr Miller's hands, and tell Mr Miller that it was not for sale. I refused to do this. Mr Miller told me that no matter who bought the property he would expect his commission. I hardly think there was any arrangement made to pay £200 commission to Mr Miller. lam sure there was not. His bill rendered afterwards amounted only to £162 for both commission and expenses. I never stated to Mr Balfour that Mr Miller would charge me £200 commission. I did not say " all I want is £3000 clear." There were 3000 sheep on the property. Mr Balfour approved of the price I put upon the property. The final arrangement for sale was made I believe between Mr Thomas Balfour and myself. (Left Sitting.)