SUPREME JUDGMENT.

Gisborne Times, Volume XXVI, Issue 2161, 9 April 1908, Page 4

SUPREME JUDGMENT.

AITIvHN V. COMMON, SHELTON, -AND CO. . VKKDICT FOR DEFENDANT hi l lie ease of W. It. Aillcen 'V. Cw'.anion, Shelton, and Co., which wan heard at the last sitting of the Supreme Cou it in Gisborne, judgment has been iceeived from Air. ■Jiisiic? Chapman, and was read in the iri.Al. Court yesterday afternoon by Air. \Y. A. Barton. The judgment read as follows: “The aetioii was for dishonoring an order given by plaintiff to a 'third party in payment for a lot of sheep sold and delivered. Three questions wore lint to the jury, who found (1) that the promise to honor the order was made before that document was given to the vendor; (2) that there was a breach of the contract so made; and (3) that the plaintiff had suffered no damage. The action was throughout, treated ns if the duty to honor the order undertaken by the < defendant company was the same as that which a banker undertakes towards his customer. Tlio plaintiff was a drover, admittedly possessed of no means, who was in tho habit of occasionally speculating in sheep. It was his lji-actico when lie bought a lot, of which defendant company approved, to pay for them by tin order on tlio company, and to sell them at the periodic sale held near Gisborne, through the company,' which thereby earned a commission as auctioneers. The sheep in question were paid for as usual by an order, on defendant, which when presented was dishonored. The sheep were not immediately sold,' but as the market was depressed they were held over at plaintiff's request until tho next sale* day, when they wero sold at about the same price as they would have realised at tho earlier date. The sale was effecte-td by another auctioneer, and was made by plaintiff’s direction. It resulted in a loss of £350. What I have now to determine is whether the verdict is to bo treated as a verdict for tho plaintiff or for the plaintiff. In tho former case I should, I think, have jurisdiction to enter damages for a nominal sum. Fieze v. Thompson : It is laid down in general terms in Leake and Contracts, sth edition, page 710, as m many other text books of repute, Liiac nominal d.images may bo recovered m an action against a banker who, having sufficient funds in Ins minus ror unit purpose, reinses to cusii a customer s elieque, substantial uainagea being given only ix iho roxusai is m met injurious to tffe customers or Will, ror tins Iffo ieulHcu cuicnor cj.es jlarzotii v. U imams 1.1 la. ana '.ia. no, itoini v. .liewarn v.t± C.IL obo;, ana ininos v uueety Vi ii. and au. tlo, itoini v. Steward uouotcu.y suppoiL me general proposition/ ami in general terms neat me recovery oi suen damages as a mutter or rigiu. a tie tacts of tins case must, nowever, be compared wit-11 these winch resulted in .tile dicta m those cases. In all of them there was either actual damage or evidence from which damage to credit ougl-it- to be presumed. Alto Court may, in a case of tins sort, look at the admitted facts in order to correctly appreciate wliat the jury meant to nnd. Hollins v. Fowler VL.lt. 7 11. L. 757.) Here it was admitted that no person but. tlio defendant' company had given tho plaintiff credit, or had prior to the dishonor been asked to do so, while witnesses called by plaintiff to prove they had no objection to deal with him bv reason of the dishonor, but only because he had made a heavy loss over tho sheep and still owed money to- the vendor. It is evident that the view that if the order had been met plaintiff would have owed £330 to the defendants instead of to the vendor, and that as ho was in either case insolvent, lie could not have suffered in credit. In these circumstances I think that proof or probability of damage was so far essential to' the maintenance of the action that if the possibility of damage was -disproved it was open to the inry to find for the defendant. In Jiarzetti v. 'Williams, Taunton J. discusses tho question of an injury to a light leading to presumed or probable damage .to a nominal amount at least, and treats that as the basis of his judgment. Here not- only was there no probable damage, but there could not have been even nominal damage is an essential part of the proof of a cause of action (Alaync on damages, pages C and 7). though presumption may, of course, take tho. place of proof and in a case [of this nature, Day J. seems so to ingard the question. .Atoms v. London and Westminster Bank Cl Cole and E. 488). The distinction is very clearly put in Alaync on Damages, 7th. edition, at page 580, in. a passage in vVliich the banking cases aio discussed. ‘But when the agent can show that under no circumstances could any benefit to tlio principal have followed from obedience to his orders, and that therefore disobedience to them has produced no real iujurv, the action will fail. Hus does not derogate from tlio general principle, that until this is sliou n damage must be presumed to flow from a breach- such as this. Wliat the jury said, and wliat I think they really meant, was that the plaintiff had suffered nothing lay tlio dishonor, and -that his insolvent condition was brought about by causes quite unconnected with it. The judgment must therefore bo for tho defendant. As the defendant disputed both the contract and tlio breach, I think there should be some allowance on this account. This, I think, will lie sufficiently provided for by the following judgment: Registrar to ascertain costs as per scale on the amount claimed, with witnesses’ expenses and disbursements,_ together with interlocutory costs, without allowing for second day or further allowance. Judgment for defendants for three-fifths of the sum so ascertained.”