SUPREME COURT.

Evening Star, Volume VIII, Issue 2135, 10 March 1870, Page 2

SUPREME COURT.

CIVIL SITTINGS. This Day. (Before Mr Justice Ward and a Common Jury.) FIIITCIIABH v, GIBUS. The plaintiff in this case was Charles A. Pritchard, and the defendant Abraham J. S. Gibbs ; Mr Macassey and Mr Haggitt appeared for the plaintiff, and Mr Barton for the defendant. Mr Haggitt opened the case. He stated that the plaintiff was formerly a resident in Dunedin, but now lived in Christchurch, and was manager of a newspaper there ; and the defendant was a member of the firm of Gibbs and Clayton, timber merchants here. The plaintiff sought to recover the sum of L2IKI 14s, upon a declaration for money lent, for money had and received by defendant on account of the plaintiff, and upon an account staled. To the declaration the defendant pleaded—first, a plea of general denial ; second, a plea of payment; and third, a set-off exceeding the amount of the plaintiff s claim. The set-off was alleged to be for goods sold and delivered, for money paid, and for money hail by the plaintiff for defendant’s use ; for money lent; for work and labor done, and upon an account stated. The set-off amounted altogether to L 290 Ss, exceeding the plaintiff’s claim by over L9O. To the defendant’s plea, the plaintiff put in two replications —one a general denial of the material allegations contained in the plea of payment; the other a denial by the plaintiff that he was indebted to the defendant as stated in his third plea. The defendant’s set-off contained two items of LlO7 10s and L2l 12s Gd, for which he had been given credit in the particulars of demand. Mr Macassey, in stating the facts of the case, said that the claim of the plaintiff on the debit side was composed of four items—the two first items were LCO Gs and L7O, cash advanced; the third item, Ll6O 18s, nett proceeds of good sold ; and the fourth item, L9O, was charged in the account as amount of a dishonored acceptance ; but it should have been debited in another form; the four items making a total of L3Bl 4s sd. On the other hand, the plaintiff gave the defendant credit for three different items—Lls7 10s, amount of acceptance ; LI 7s lid, defendants portion of profit on some goods sold ; and acceptance of a Mr Mills, L2I 12s Gd ; leaving the defendant indebted to the plaintiff in the sum of L2OO 14s. The defendant had pleaded a set-off as against that claim of L 290 8s ; but in that set-off he took credit to himself for the payments already made, the bill of L 157 10s, and Mill’s acceptance, L2l I2s Gd ; so that his set-off was virtually reduced to LI II os Gd. At one time the plaintiff was quite willing to have accepted LI 10, but in consequence of the defendant having resisted every effort to procure an amicable settlement, he determined to claim the total amount of the balance due, viz., L2OO 14s. The only matters that he need trouble the jury with were a claim of L9O, and a claim of LOO ; the others, being mere matters of account, would be spoken to by the witnesses. He would first refer to the L9O item. Several years ago the plaintiff carried on business in conjunction with Mr A. G. Fisher ; and the defendant, who also resided in Tasmania, was indebted to plaintiff’s firm in the sum of several hundred pounds. Mr Fisher made arrangements to come to New Zealand, and made an assignment of his interest in the firm to Pritchard, and the latter directed Gibbs to pay all sums due to him to aMrE. M. Fisher. Gibbs paid Fisher LUO, leaving a balance due of some LOO. Gibbs and Pritchard afterwards came to Dunedin. The latter, in consequence of some statements made by defendant, to the effect that he had paid the balance to E. M. Fisher after he had ceased to act as his agent, proceeded to satisfy himself that his payment had been made without authority. That being so, on the 3rd September, ISoG, an arrangement was made between them which showed conclusively, apart from any other evidence, that there was not the slightest doubt that Gibbs recognised Pritchard as his creditor. On that date plaintiff gave him the following memorandum :—“ Mr A. G. S. Gibbs. Dear Sir, —I undertake to extend the time for payment of the balance of the debt due by you to the late firm of Fisher and Co., of Hobart Town, for three years from this date. Amount of original debt, July, 1803, L2OO, less payment made to E. M. Fisher, on our account, Lloo—say L9O.—G. A. Pritchard, for self and former partner, A. G. Fisher. Dunedin, 3rd September, 18GG.” At that time plaintiff fully satisfied Gibbs that the authority possessed by Fisher had previously been determined. Some time after, when Pritchard was pressing Gibbs for a settlement of this and other claims, he (Gibbs) wrote in these terms : “ July 14, 1809. “ Mr Pritchard.

“ Sir, —1 have written to Mr Haggitt in reply about the L.'JO bill, showing him that you have no chaneo of recovering it. At the same time, I tell you honestly that 1 have paid it. and can prove the same to your satisfaction, so that I receive no benefit by the transaction, as you seem to imply. Also I think it just as well that I should not be ■put into the witness-box, which you appear to have such a design for, as I could, and perhaps would, disclose the whole particulars of a certain affair which smells pretty strong already transacted here between three parties connected with a certain property in this part of the town, which 1 also can prove having a written statement of the same, as well as other proofs if necessary. “ f. rather fancy, in looking over this statement, that it would not look very well in print, if not ending very much worse than that. The L9O affair I have no doubt will be settled to your satisfaction in a little time, but the other I had a decided objection to paying twice. —Yours, “ P.S.—Should this fall into other hands, I think it is harmless.” He merely used this letter for the purpose of showing that whatever Gibbs had to say with regard to the LoO bill, he did not dispute his liability so far as the LOO was concerned. A letter addressed by him to Messrs Haggitt and Eaggitt showed that the excuse he was then and now setting up was simply a pretext for the non-payment of the claim of the plaintiff with regard to the LoO bill. The third item in the plaintiff’s particulars of demand was Ll.'lo 2s, net proceeds as per account sales. Some years Mr Pritchard was the consignee of a cargo of timber, which was placed in Gibbs’ hands to sell, and on whom he drew, from time to time, to the amount of L 157 10s, It was then computed that about L4O worth of timber remained to

be sold. It was agreed that Pritchard should draw for L3O any balance that might exist being left over for future adjustment. This bill was drawn by Pritchard in the name of Fisher Brothers (the name by which the firm was then trading). It along with some other documents was forwarded by plaintiff to Hokitika to a Mr Bullock through Mr T. E. Fisher, but it never reached its destination. As soon as plaintiff became aware of the fact, he informed defendant of it, and both went to the Bank of New South Wales hero and stopped payment. Subsequently both went to a solicitor who advised the defendant not to pay the bill to any person but the one who actually drew it. It appeared that after the bill matured defendant went to the bank, and ascertained it had not been presented, and communicated that fact to plaintiff. It was afterwards ascertained that defendant at the time had the bill in his possession ; and although he had notice not to pay it to anyone else than Pritchard, he made use of it as a set-off in some of his transactions with Fisher. The evidence on both sides was of a rather complicated character, A number of accounts was produced, and witness examined as to them : but the principal questions at issue were the items of LOO and L3O. On the part of the plaintiff, letters by the defendant were put in showing that until lately he has admitted his liability on account of the first mentioned sum ; but stating that he paid it to E. M. Fisher, plaintiff’s agent in Tasmania. On the other hand it was stated in evidence by the plaintiff that Fisher had no authority to receive the money ; with respect to the L3O bill, defendant stated that the bill was drawn in the name of Fisher Bros., and subsequently presented to him by Mr T. E. Fisher, who demanded payment of it. There were some contra accounts between them, and he returned the bill, by giving an acceptance for a larger amount. He obtained a receipt from Fisher for its payment in December, 1867. The receipt was produced, and bore date 1868 ; but defendant adhered to his statement that it was paid before then. For the plaintiff, Mr Ward, solicitor, was called, and he stated on January 27, 1868, plaintiff and defendant came to his office together, and asked him what they should do in the case of a bill having been lost. Pritchard complained that it had miscarried in transitu, and thought Gibbs should pay it. Witness asked if the Bill had matured, and Gihbs said it had not been paid at that time. Upon the strength of that statement, witness advised Gibbs to take notice there and then of the loss of the bill, and advised him to pay it no one other than Pritchard. Both then left, apparently satisfied with his advice.

[The case had not concluded when our Reporter left.]