RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 2817, 28 February 1872, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A, C, Strode, Esq., R.M.) Civil Cases. Paterson and M'Leod v. Thompson.—Mr E, Cook for defendant. L 5 5s 6d, for groceries supplied. It appeared from the evidence that the goods sued for were supplied to defendant’s wife in the year 1868, the defendant at that time and up to the present time had been separated from his wife, and the defendant had not given any order for the goods, and was allowing his wife the sum of L2 per week for her maintenance since the year 1807. His Worship held that the plaintiff could not recover. Judgment for defendant.

His Worship gave judgment in the case of j the Otago and Southland Investment Com- j pany v. Burns, as follows : Upon consideration of all the points con- ) nected with this case, I have come to the conclusion that as regards the loan of L3OOO that amount was advanced by the plaintiffs and accepted by the defendant for live years, and that the bill was merely a temporary arrangement resorted to because the defendant required the money at once, while he was iu England; it being impossible to complete the mortgage in consequence of the Company having no means of acquiring information as to the valuation of the properties offered, beyond that furnished by the defendant himself. It would appear from the evidence of the defendant that he wishes it to be understood that the L3OOO which he obtained upon the bill was distinct from the L3OOO which he was to obtain under the agreement; but from the agreement itself it seems perfectly plain that the L3OOO then advanced was the only advance contemplated, and the bill was not to be met, unless upon the refusal of the committee of management in Duncdiu to accept the security offered, when he was required to retire it. Moreover, I apprehend that the defendant has made it abundantly clear that he considered the L 3,000 he received on the bill, as the money which was to be ad anced to him under the agreement, by his paying the interest quarterly, as specified in that document, and as he himself puts it in his evidence, “ 1 paid the interest under the agreement.” The only question that remains to be considered is, whether there was such a distinct expression of dissatisfaction on the part of the manager, or committee of management of the company in Dunedin, with the security generally proposed to be given to the company for the advance, as entitled the defendant to repay L 3,000 oh the maturity of the bill. The evidence on this point is altogether unsatisfaetory; Mr Cook asserting on the one hand a distinct and positive refusal on the part of Mr Larnach to accept the security: Mr Larnach, on the other hand, denying equally positively the fact of his having refused the security. Whatever the real facts may be, the manner iu which the refusal (if given) was made, does not appear to me to be of that formal and busi-ness-like character which in a matter of such importance might have been expected. Two circumstances appear in the evidence of the defendant which are noticeable—the one that Mr Larnach, on discovering that tin business on which the defendant and Mr Cook called upon him related to the Otago and Southland Investment Company, took them from the Bank of Otago premises to the company’s office next door, and traus acted the business there ; whilst the inter view with Mr Cook took place in the Bank of Ot igo parlpr: the other circumst incc, that at the interview with the defendant and Mr Cook, Mr Larnach stated that he had not even then looked iuto the securities —the one fact seeming to indicate that when formal hu-iness of the Company was to be disposed of, Mr Larnach was in the habit of transacting it in the Company’s own offices, and not in the Bank, thereby giving a slight coloring to Mr Larnach’s statement that Mr Cook’s interview with him was primarily on other business—the other seeming to show that Mr Larnach could not have considered anything that may have passed at the interview with Mr Cook as decisive, as he had not, according to his statement to the defendant, looked into the securities. In the face of such diametrically opposite statements, I can only look at the probabilities—taking, therefore iuto consideration the agreement itself, the evidence of the defendant, the fact that Mr Morris had not left the Colony at the time of the interview with Mr Cook, and that consequently the business of the Company’s office would be new to Mr Larnach, thereby giving an air of greater probability to his subsequent statement to the defendant, that he had not looked into the securities—and taking also into consideration the whole conduct of Mr Larnach iu the matter, subsequently to the interview with Mr Cook, I am forced to the conclusion that there was no positive refusal by Mr Larnach on behalf of the Company, of the securities offered by the defendant, and that consequently the defendant was not in a position to require the Company to accept payment of the bill at maturity. Under these circumstances I am of opinion that the plaintiffs are entitled to recover. Judgment for plaintiffs, L7o, together with costs.

Mr Barton gave notice of appeal to the Supreme Court.