SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXII, Issue 5180, 29 October 1877, Page 3

SUPREME COURT—IN BANCO.

(Before their Honors the Chief Justice and Mr. Justice Richmond.) HARRISON V. PALMER. The Court gave judgment in this case as follows on the 17th inst.: — - In this case a rule nisi was granted to the defendants, calling upon the plaintiffs to show cause why a new trial should not be had upon three grounds;— 1. That the learned Judge improperly allowed the plaintiffs to amend their declaration. 2. For misdirection —the learned Judge not having directed the jury that they must find a verdict for the defendant, there being ho evidence of any authority to Otto Van Dadelzen to make the agreement in the original declaration. 3. That the Judge improperly rejected evidence produced by the defendants to prove the nature and extent of the authority committed to the local manager of the Union Bank of Australia at Gisborne by the said bank to make the advauce to the plaintiffs of the money in the declaration mentioned. Cause was shown on the 20th day of August, when it was pointed out that the rule nisi had been in several particulars erroneously drawn up by the defendants; but the argument was taken only on the grounds upon which the rule was granted. The action was brought by the plaintiffs to recover damages for the breach of a contract by the defendants to advance to the plaintiffs moneys by discount- of their bills. To prove the contract the plaintiffs produced a letter from the defendants’ local manager, Mr. Van Dadelzen, in which it is stated as follows ; “ The said advance to he secured by assignment of the property described in a memorandum handed to me by Mr. Arthur Harrison some time ago.” As the declaration made no mention of the condition as to security, it was contended on behalf of the defendants at the trial at the conclusion of the plaintiffs’ Case, that the plaintiffs should be nonsuited on the grounds—(l). That there was a variance between the contract alleged and that proved; (2) that there was no evidence of Van Dadelzen’a authority to make the contract; (3) that there was no evidence that the plaintiffs had given the security. However, the learned Judge intimated his willingness to amend the declaration so as to make the contract alleged in the declaration consistent with the evidence, and also to amend or add to the pleadings so as to raise the question whether the plaintiffs had performed the condition. But as Mr. Travers, for the plaintiffs, did not then apply for the amendment, eventually the application for nonsuit was refused ; but leave was reserved to the defendants to move for a nonsuit on the ground of variance, the Court to have the same powers to amend as a Judge at nisi prius, according to the facts proved at the trial. Upon the application for nonsuit being refused, the learned counsel for the defendants at first stated that he should adduce no evidence in defence, but eventually said that he should call evidence as to the quantum of damage. At the conclusion of the defendants’ case, a discussion having taken place as to the applicability, to the present case of Rule 83 of the General Rules, Mr. Travers in the end applied for leave to amend declaration by setting out the letter above referred to, and the amendment was allowed, with power to the Court to allow the defendants to place on the record any plea which the facts proved at the trial would support. It was contended on the argument of the rule that under these circumstances the amendment ought not to have been made at all, and if allowable, ought not to have been made at the conclusion of the defendants’ case. It is unnecessary to consider whether the omission from the statement of the contract in the declaration of the condition as to security, is a variance within the meaning of the 81st of the General Rules or not, because even if a variance, wo think the defeat was one amendable, and was rightly amended at the trial. The question in controversy between the parties was unquestionably, so far as the evidence disclosed, mainly what security the plaintiffs had agreed to give, and whether it had been given. Indeed the learned counsel for the defendant treated this question as in issue without au amendment, for at the conclusion of the plaintiffs’ case, be moved for a nonsuit on the ground that there was no evidence of the plaintiffs having given the security. It may be that the defendants came down to trial speculating that they could sustain the nonsuit point on the ground of variance ; hut in this they erred, for every pleading must be taken as subject to such amendments as the law, as it now stands, permits the Judge to make.! (See per Maule, J., Buckland v. Johnson, 15 C.B. 165.) The defendants therefore had no right to speculate on succeeding on their nonsuit point if the - amendment was one necessary to be made for the purpose of determining the real question in controversy between the parties. It is unnecessary to consider whether this Court would review the decision of the Judge at the trial, where an amendment has been made, because we think that the question whether the amendment was one which ought to be made was, though not expressly reserved, intended to be reserved for the opinion of this Court. The objection that the amendment, if allowable, should have been made at the close of the plaintiffs’ case and after the addresses of counsel was too late, cannot, we think he sustained. It may be that ordinarily applications bn behalf of the plaintiffs to amend the declaration should be made and disposed of at the conclusion of his case ; but the case of Rainy v. Bravo, vol, 4, L.R., P.C.A., p. 287, cited at the argument of the rule by Mr. Harper, recognises that such amendments may bo made at a later stage in the trial. Much must depend upon the course of proceedings at the trial as to the stage at which such an amendment may properly be made. In this case, though Mr. Travers, on behalf of the plaintiffs, did not at the close of his caso apply for an amendment, leave was then reserved tor this Court to amend according to the evidence. Practically, therefore, the amendment may be said to have been applied for at that time

and made subject to the opinion of the Court as to whether the amendment- was necessary and ought to have been made. - The defendants were made aware at the conclusion of thei plaintiffs’ case that they were at liberty to adduce any evidence they might think fit in order to disprove the performance of the condition as to giving security. This being the case, the defendants, if unprepared with evidence to meet the case made by the declaration with the proposed amendment, should have applied for an adjournment of the trial on that ground. They, however, did not do so. Moreover, though it-was stated at the conclusion of the plaintiffs’ case that the defendants intended to call evidence only as to the quantum of damages, it is plain that.much of the evidence adduced on behalf the defendants was relevant only to the question whether or not the condition had been performed. For these reasons we think that there was no impropriety in making the amendment of the declaration at the stage at which it was made. Then as to the ground that the learned Judge ought to have directed the jury that there was no evidence of any authority to Van Dadelzeu to make the contract. It appeared that Van Dadelzen was the local manager at the place where the contract was made, and it was admitted that as local manager ho -was held out by the .bank as having authority to make such a contract as that sued on, and that the contract was within the scope of such ostensible or implied authority; but it was contended that the evidence showed that the contract sued on was not made by Van Dadelzen under his ostensible authority. The evidence relied upon for this purpose was that Van Dadelzen had informed the plaintiffs at the time of receiving their proposals for the loan that he (Van Dadelzeu) must refer the matter to Mr. -Palmer, the chief officer of the bank ; that the plaintiffs were aware that Van Dadelzen thereupon communicated with Mr. Palmer on the subject of their proposals ; that they inquired from time to time as to whether he had received a reply from Mr. Palmer ; and that they received from Van Dadelzen the letter relied upon as evidence of the contract, in which Van Dadelzen commences by stating, “ I have pleasure in advising that I am authorised to make advances for your requirements.” The question, however, is whether there was any evidence to go to the jury that the contract was made under the ostensible authority. If there was, then it would have been improper to direct the jury that there was no evidence of any authority to make the contract. In effect the case was left to the jury to say whether or not the contract was made under the ostensible authority. We think that it was on the evidence open to adopt the view that what took place with regard to referring to the chief officer of the Bank was nothing more than a statement that the local manager, though authorised to make the contract, would, in pursuance of undisclosed private instructions to him from the Bank, make the reference before accepting the proposals. The existence of private instructions may almost he presumed in the case of a local manager of a bank. Certainly there is a great probability that such instructions exist. Such instructions are not given for the purpose of limiting the ostensible authority. (See “ Story on Agency,” s. 73.) They aro intended to be kept undisclosed, and not to be communicated to those who deal with the general agent. As between such an agent and principal they may be said to limit the authority ; but not so as to third persons, to whom they are disclosed. What effect, therefore, is to be given to a bare notification that sucb instructions exist, but without notice of their nature, or effect ? Does such notification go further than what the party dealing with the general agent might be presumed to know without such notification, viz., that private instructions exist —instructions not intended to be made known ? The answer to such a question must depend upon the particular circumstances of the case. If what Van Dadelzen did amounted to no more than a notification to the plaintiffs that there were such secret instructions which he must follow, it is not necessarily to be inferred therefrom that the plaintiffs were notified that he had not authority to make the contract, or that he was in making the contract not actirg under his ostensible authority. The defendants must contend that it necessarily follows from the fact that the local manager made the plaintiffs aware that he must refer to the chief office, and the other evidence already stated that he thereby informed the plaintiffs that his authority did not extend to the making the proposed contract or that he did not intend to act under his ostensible authority, and that in order to make it he was obliged or intended to obtain a special authority. But it was, we think, a question for the jury whether that was the inference which was to be drawn from the statement that he must refer in connection with other matters relating to the making of the contract and proved at the trial, and we think that the juiy could not have been properly directed to find that the contract was not made in pursuance of Mr. Van Dadclzen’s ostensible authority implied or presumed from his position as local manager. Then as to the exclusion of the evidence tendered by the defendants. The plaintiffs relied only upon the ostensible authority of the local manager. That being so, the communication between the local manager and the chief officer not made known to the plaintiffs before the contract were irrelevant to the issues whether the local manager had ostensible authority to make the contract and whether the contract was made under that ostensible authority. The defendants did not profess to he able to prove that the plaintiffs were made aware of these communications. In Howard v. Steward (36 L.J., O. P., 43), a horse-dealer sent his servant to sell a horse, but gave him instructions which the servant did not follow. It was held that the servant of a horse-dealer having, as such, ostensible authority to sell, evidence of the instructions given to the servant, but not communicated by him to the buyer, was properly excluded. The rule must therefore be discharged, with costs. - '