INVOLVED CLAIM

Sun (Auckland), Volume III, Issue 622, 26 March 1929, Page 9

INVOLVED CLAIM

RANK MANAGER AND PRINTER APPEAL COURT ARGUMENT WELLINGTON, To-day. The hearing was continued in the Appeal Court to-day of the case of Harry Digby James, printer, of Greymouth, against Edward Ernest Bayly Alabin, bank manager, formerly of Greymouth, and now of Nelson. Mr. Justice Herdman presided, and with him were Mr. Justice MacGregor and .Mr. Justice Ostler. Messrs. Murdoch and Doogan appeared for appellant, and Mr. M. Myers, K.C., and Mr. Ward for respondent.

Mr. Myers, for the respondent, said it was true that the Statute of Frauds was not argped in the court below. The real point in issue, however, was whether the tor*t be fraud or negligence. The appellant was not entitled to recover unless he shows that he has suffered damage. On the appellant’s statement of claim, assuming all Hie facts to be as alleged, he was not liable to the bank for a single penny, and payment made by him was made gratuitously. Therefore, he was not entitled to recover from Mabin. If Mabin acted fraudulently in obtaining these guarantees, said counsel, he did so for the benefit of the bank, in the course of business, and the bank had no right against James. If James rhose to settle a possible liability of £37.000 for £2.500. it was entirely his own affair, and created no liability upon the respondent. Mr. Justice MacGregor pointed out that the statement of claim did not disclose that James knew of the alleged fraud when the payment was made to the bank. Even though it might be that he did, in proceedings such as these, the court was bound to • onstrue every fact set out in the statement of claim as correct and in favour of the party issuing it. Mr. Myers then contended that taking the statement of claim as drafted, the proper inference to be drawn was rhat James knew' of the acts complained of three months before he made payment. But assuming that he did not. then he could have recovered the money paid from the bank. Although ’t was impossible to support the finding of Mr. Justice Adams, on the "round of the Statute of Frauds, his Honour’s judgment was correct in that the statement of claim disclosed that any action was for fraud and fraud alone. Judgment was reserved.