SUPREME COURT

Taranaki Daily News, Volume LIV, Issue 304, 20 June 1912, Page 7

SUPREME COURT

If CIVIL LITIGATION. ; A MUCH-SOLD AUTOMOBILE. An interesting and involved civil action covering the ownership of a much(old motor car was heard at the Supreme Court yesterday, when Robert H. Wallath proceeded against Henry Weston «4th a claim for £2BO, for repayment •f money alleged to have been paid for the purchase of a motor car. Mr A. R. Standish appeared for the plaintiff, while the defendant was represented by Mr Skerrett K.C., and with him Mr C. H. Weston. THE CASE OUTLINED. In outlining the case, Mr. Standish ■aid that about February, 1911, two cars arrived through the Bank of New Zealand, the bills of exchange on which W«re endorsed by Gunson and also by the defendant. The bills of lading were endorsed by the defendant, and not signed by. Gunson. On February 2 a letter was writte* to Gunson as follows from H. ■Weston: "I enclose herewith bills of lading for two Darracq motor-cars which I am placing In your hands for sale for gash at or about £360, or on terms to be approved by me, the gross proceeds to be handed to me direct from the purchasers; the commission I will adjust when the cars are disposed of. I have arranged the necessary insurance." Ail insurance policy was effected in the narite of the defendant, covering the cars to the amount of £575. On May 3, one of tie cars was sold to Father Bergia, but /subsequently again came, alleged counsel, into the defendant's possession. Tjhe car was repainted by Gunson and on July 4 resold by him to May. Defendant, contended Mr. Standish, knew of this sale, and knew that it was the car which had been in {he possession of Father Bergin. Prior to the sale to May, the same car had been sold by Gunson to Wallath for £2BO while it lay in a garage at Hawera. Father Bergin sued May for the recovery of Hie car at the last Supreme Court session, and won his case, the car being now in his possession. Early last September, Wallath (according to plaintiff's story) became suspicious, and asked Gunson whether the car he had sold to May mas his (Wallath's) car. This Gunson denied. On September 20 he again approached Gunson, who then confessed that it was his (Wallath's) car that he bad sold, but said he would see Mr. Weston, who would fix it up. Gunson disappeared, and plaintiff then approached the defendant's manager, who, however, denied any liability in the matter. The first witness called was John Paton, who produced documentary evidence to show that two ears had been insured in the defendant's name. Mr. Skerrett: Did he hear any statement made by Mr. W. Weston as to Mr. H. Weston's connection with the cars. —Mr Weston said he wanted to insure iwo cars of Gunson's as his unele had an interest in them in that he wanted to advance money to Gunson for the purpose of enabling him to lift bills of lading on the cars. Gunson paid the premiums on both the cars. A second insurance policy issued on one of the cars in May was taken outlbv Gunson. R. H. Wallath, the plaintiff, produced

a receipt for £2BO given when he purchased the car from Gunson. Th# entries produced were all correct. A cheque for £IBO was paid by him to Gunson in part payment of the car. Part payment was made per contra account. A few days before June 6, Gunson approached Ihim and stated that he had taken back the car from Father Bergin. He then went on to explain that the cylinders of the car, which was then lying in a motor garage at Hawera, were cracked. He offered the car to him for £2BO, pointing out that he would not he able to get delivery of it straightaway. Witness agreed with Gunson to let the car remain at Hawera until the new cylinders were procured! in about three months' time. He then told him that he (Gunson) would get his commiesion out of that car and another car, and the balance was to go to Mr Weston. Mr Standish: Do you know something about the sale of a car to May? His Honor (interjecting): Do you only know what someone else told you about it?— Yes, your Honor. His Honor: Well, then we don't want tliat. Witness added that' Gunson had told him that May was buying a car from him. In September Gunson owed him other monies and he said: "I will give you an order on May for £•)." Gunson gave him an order which May refused to accept, stating that he had bought the car from Weston. He remembered an interview between Gunson and May at his office, sometime in September. Gunson then assured witness that that car had nothing to do with the car he had sold May.

"THE SAME CAR," Some weeks after he remarked to Gunson: It is no use beating about the bush. It is the same car. You have had it painted a new color and that is all." Gunson then admitted that this was so. adding that if witness waited a day or so he would see Mr. Weston and make it Tight. A. few days .after, witness called at the garage and enquired for Gunson, who it was stated was at ■Manaia. Witness then saw Mr. W. Weston, asking him if he knew the arrangement Gunson had made to pay him back the money. Weston replied that he knew nothing about the arrangement, but he admitted that it was the same car that had been Father Bergin's. On October 2 he again interviewed W. Weston at May's request. May stated: "Wallath says that the car is his and that it was formerly Father Bergin's." Weston replied to May:"Take no notice of Wallath. The car was my uncle's car. and it was he who sold it to you." THE PLAINTIFF CROSS-EXAMINED. To Mr Skerrett: In 1910 and 1911 he waa in terms of intimate friendship with Gunson, being frequently at his garage His business premises adjoined Gunson's. He had a knowledge of what Gunson's stock consisted of. He knew that in February, 1911, he had imported two new Darracq motor-cars, Gunson having told him that his wife's unele (H. Wesiton) was importing two for him to sell. Gunson also landed another ear about the same time, which he sold to Mr Archibald Clark. He knew that in the month of February after the delivery to Clark, that Gunson only had two Daracq cars in the shop. These were the only new cars he had in stock. There was one second-hand car in stock, which

witness bought in conjunction with somebody else. He was not at that time familiar with the whole of Gunson's business. He bought the Darracq car on June 6, 1911, and on June 29 he bought the whole of Gunson's furniture for £IBO, renting it back to him. On June 29 (the same day) he bought the second-hand car from Gunson for £llO. On August 16 1911, he bought the whole of Gunson's book-debts for the sum of £3OO.

ALL THAT WAS LEFT. His Honor: What had Gunson got left then? Mr Skerrett: Very little! Were you informed <j" the sale of the new Darracq car in March to a Maori, which was delivered to him ?—That is so. You admit that you knew of the sale to Father Bergin about the time it was delivered to him.—Yea ■Then you must have known that these two Darracq cars were both sold? —That is quite correct. You have admitted that you knew Gunson had no other car of similar make for sale?— Yes, but early in July he said he had got another new Darracq car from Napier.. You knew of the sale of the car to Father Bergin, and will you swear that shortly after delivery of the ear to him you did not know that he had broken the cylinder, and that he was returning the car to Gunson? —Gunson told me so, stating that it had come back into Mr Weston's hands and that he (Weston) wanted to sell it again at cost price. His Honor: Why should Weston take hack the car? —Gunson told me that Father Bergin arranged to purchase a smaller and new car. You at any rate knew that you were buying the car which had been sold to Father Bergin and it was the last of the Darracq cars which Gunson possessed?— Yes. AN INTERESTING BIT OF PAINTING. Do you know that Father Bergin's car was repainted in, the shed attached to Gunson's house? —I knew after. Did you know all along that it was being repainted?—l did not, sir. Who erected the shed in which the act of repainting the car was done? — Our firm did, and I understood it was to store and. paint several motor cars in. You knew that he had no other cars in stock? —Yes. THE ETHICS OF BOOK-KEEPING. Will you tell me when the scries of entries terminating in the words "square to date" were made? —About June (!. M(r jSkerrett: Not on the variouSi dates mentioned there?— No. When were they made?—l could not say. They would probably be made a few days or weeks after the transactions. When were the entries from June 5 to August 15 1911, made?— They were made at different times. Not necessarily on the exact dates. Is this the only ledger account von had with Gunson? —Yes. Is this the only record of your, transactions with him? —That is so. Witness had no private bank account. STRONG COMMENT BY HIS HONOR.

Mr Skerrett: Do you swear that that record has not been absolutely prepared quite recently for the purposes of this case, and is not a record of your transactions with Gunson?—Yes, only as I have already stated, as far as I know. His Honor: Why do you say: "only as far as I know." Do you not know whether it is a fact? When you say "as far as I know,": it conveys to me that you wish to evade prosecution for perjury. ; , You built a house for Gunson? —Yes, How long ago was it settled up?— Three or four years before, and has no connection with this matter. Will you be kind enough to explain why there is one cheque, not mentioned in the ledger, drawn bv Wallatli Bros, to the amount of £322 10s and paid into Gunson's ace"""*' -T o-.n easily do so. There were accommodation cheques given to Gunson to tide him over temporary financial embarrassments. His Honor: This is not a complete account unless you have an account showing these accommodation cheques. "WILL YOU SWEAR " I Mr. Skerrett: Would you mind telling me how it is that the purchase of the furniture is not entered in that ledger account? —Yes; here it is (pointing to an entry on a separate page). Will you swear that the entry was made about the time of the transaction, namely; June 29?—' Yes, sir. Why did you en'teV that on a separate page? —So that I could extend the other I account.

His Honor: But you could not extend it, as the transaction was dead and closed. Now, I want to ask you as a reasonable man: Do you go a,bout with sums like £4O and £43 in your pockets? —Yes-, very often £3OO. I suppose you have got receipts for these amounts?—No, because I thought Gunson was a straightforward man. But the question is whether you are a straightforward man. FORTUNATUS' PURSE. You have paid sums up to £3O or £4O to Gunson without taking receipts? —Yes. Would you be surprised to learn that by comparing Gunson's account book with your ledger, we can find no corresponding entries in his (Gunson's) book?— No. His Honor: Your pocket is surely not like Fortunatus' purse. You must be able to show where you got the money. Witness: Well, I sometimes get money from outside sources. My mother-in-law paid me £IOOO. His Honor: Oh, your mother-in-law! (Laughter.) Mr. Skerrett: Can you say whether it is not plain that the first entry in the ledger of £2BO is not faked to show that you paid £2BO, instead of which you only really paid £lßo?—Witness affirmed that this was not so. Subsequently he admitted that it was bad business to give money without receipts, and that he "had been a fool. "A CONFIDING MOTHER-IN-LAW." His Honor: You were dipping into your mother-in-law's money to make cash advances to Gunson? —Some of it, sir. His.Honor: How much of it?—T don't remember; some of it was put in the firm's bank account. His Honor: Does your mother-in-law think this a better "way of investing her money than in the post office? I have the greatest possible difficulty in believing these cas-h payments, unless you can show me in any reasonable way ] where they came from, j Mr. Skerrett, (touching again on the | subject of the mother-in-law): She lent | you the money without receipts?— Yes. !' Gunson was not your mother-in-law, was he? —No.

When did you last receive a letter from Gunson?'—l never received a letter from 'him. Will you swear you never had a communication from him since he absconded?—l don't think so. Further pressed, witness said: I have heard through a third party as to his whereabouts. "NO USE TRYING TO DECEIVE ME." Subsequent statements made by the plaintiff in the course of his evidence led Bis Honor to rebuke him as follows: Don't you make any mistake. It is very little use trying to deceive me. I have been a {rood many years in investigating matters of this sort. The plaintiff protested that he was i telling the truth.

| To Mr. Skerrett: Gunson told him J right from the start that lie was merejly acting as agent for Weston, but it ( did not occur to him that he could not f legally set-oil Gunson's private debt I against money which he had to pay him lin the capacity of Weston's agent. It { did not occur to him that whether he knew the law or not it would be very dishonest to act as it was suggested he had done. Mr. Skerrett: la it not a fact that you took part in inducing May to buy the car?— No. Did you not ride in the car prior to the sale?—l did not know that it was his car. His Honor: Do you really ask me to believe that if he got a new car from Napier you would not have known it or seen it?—lt is very hard to tell when car* are of the same model. "A TEMPORARY PURPOSE." Resuming his cross-examination of the plaintiff (Wallath) after the luncheon adjournment, Mr. Skerrett asked him to state the terms on which lie was to erect the shed for Gunson. Witness replied that he erected the shed at Gunson's private residence. Gunson was to pay £5 for the rent of the building, plaintiff to be at liberty to remove it. He knew that it was being erected for only a temporary purpose. Mr. Skerrett: It is rather curious that that temporary purpose should be to repaint Father Bergin's car. Witness admitted this was so. : Edwin May, baker, was next called by the plaintiff. He. deposed that Gunj son told him he had a car coming from Napier which he was willing to dispose j of. Later on witness saw Walter Weston about the car, in consequence of his having been told to watch Gunson and to make sure he was buying the right car. He asked Gunso nif anyone else was fnterested in the car. Gunson replied, | "'Yes, Mr. H. Weston. He advanced the I money and paid the bills of lading on the car and I get a commission for selling it." Witness replied: "That being so, come to the Herald office and repeat that to Mr. Weston." Witness said to Weston: "I understand from Gunson that your uncle has paid bills of lading on this car and it is his." Mr. Weston replied: "That is so. My uncle is the owner of the car." Witness then said: "That being so, come down to the National Bank with me and join with Mr. Gunson in signing the receipt." Witness continued that this was done, an<J that the document produced in court was the receipt in question. | Witness then deposed to W. Weston j having informed him that there was no more money due to H. Weston on the | car, and that the balance was due to j Gunson as commission. Continuing, witI ness said that he paid the balance of j the money on September 18. In consei quence of what transpired, witness told Weston that Wallath claimed to be the j owner of the car, to which the former j said: "You take no notice of Wallath. That car is my uncle's; he paid the bills of lading. They are his cars. I will show you the bills of lading if you like." I Subsequently Weston said he would show them to him later on.

■ "GUNSON'S PAPER." To Mr. Skerrett: Before he entered into tho contract for the car lie liad seen the manager of the National Bank. He did not suggest to witness that he should inquire from Gunson who was backing the car, but he had told him that he was to .be very careful in trusting Gunson for his paper was flying all I round the town. The manager informed I him that Henry Weston might be backI ing the car. It was not a fact that he I was clearly informed that H. Weston's ! interest did not extend beyond a loan 1 to Gunson.

Wallath appears to have taken some interest in the disposal of this car to y«u?—He rode in the car at my invitation. Did Wallath lead you to suppose that he had an interest in that or any other car? —None whatever. Witness added that Wallath had told him that he did not think he would ever buy a motorcar, as he could not afford it. This was towards the end of June. This closed the plaintiff's case. ALLEGATIONS OF FRAUD. In opening his case, Mr. Skerrett outlined tJie following grounds of defence: (1) That, assuming there was an agency of relationship between H. Weston and Gunson, the plaintiff is unable to succeed, first, because the sale was to his knowledge a fraud on Weston inasmuch as the car was partly purchased in consideration of a private debt owing by the agent; (2) that the transaction consisting of the sale, or alleged sale, to Wallath was a fraud on the part of Gunson on both Father Bergin and Weston, and was done for the ageijt's own benefit, not on behalf of his principal; (3) that the real nature of the transaction was security over the motor-car to Weston and not sale, to the knowledge of Wallath; (4) that the alleged sale to Wallath was not a sale, but a security; (5) that there was sufficient evidence that Wallath knew that it was his car which was being sold to May. Proceeding, Mr. Skerrett said that Gunson was a connection of H. Weston by marriage, and had asked him to help him by endorsing bills to be given for the manufacturer's price of the car. This j Weston agreed to, and, in consequence, Gunson entered into negotiations with the manufacturer's agents for the purchase of the cars. "A 11ATHER FOOLISH SORT OF AGREEMENT." The idea was, continued counsel, to treat the cars as belonging to H. Weston, in order to afford him security in the event of Gunson's bankruptcy. His Honor: That was a rather foolish sort of agreement. Mr. Skerrett agreed, and went on to say that all matters between Weston and Gunson were finally adjusted, so as to be at an end, on July 5, some time before any question was raised in re- ) gard to the matter. I G. H. White, partner in the firm of Skeates and White, Auckland, gave evidence as to Gunson having procured two cars on Weston guaranteeing the bills of lading. . Gunson not Weston—was treated as principal in the sale.

THE DEFENDANT'S EVIDENCE. | Henry Weston, defendant in the action, gave evidence in suport of the contention of the defence that the cars had been bought by Gunson, whom 'he (witness) had financed. He had interested himself on Crimson's behalf because he was a relative of his by marriage. It was an act of good nature on his part and nothing else. The whole of the latter part of the business was transacted by his nephew, Mr. Walter Weston. To Mr. B tan dish: Tt did not strike him ' that the letter written to Gunson on February 2, 1911, placing the ears in his hands for sale and sign?d IT. Weston might serve a double purpose. Tt did not occur to him that Gunson would act fraudulently. Walter C. Weston, who acted for his uncle (Henry Weston) in the transaction with Gunson, gave evidence on the lines of the previous witness. His intention in writing the letter of February 2 to Gunson was to get as much money out of him as quickly as possible. There was no arrangement made with Gunson as to commission. Witness had nothing whatever to do with the sale of the car to a native named Momona, of Rahotu. He had no recollection of May having come to the office before he signed a receipt, nor did he remember at any interview telling May that Gunson was to get a commission for selling the cars. Although he signed the receipt along with Gunson, he never handled the

cheque for the payment of the car. He eim.ply signed it at the request of the manager of the National Bank. Witness could not remember whether he had told May that the cars were his uncle's or not. To Mr. Standifih: The reason why he signed the receipt was because May would not pay the money until he did so. There was no other reason. A MISSING CREDITOR. The Rev. Father Bergin, Roman Catholic priest at Manaia, deposed that he purchased a motor-car from Gunson. The machine broke down, and as a result it was left in Gunson'e hands, witness being informed that it would take three months to obtain the new cylinder that was required. He had paid £2OO on the car, and was still indebted to someone for the remainder of the promissory notes to the extent of £l5O. "THE BIRD HAD FLOWN." Geo. Dickinson deposed to having, by arrangement with Gunson, painted a green Darracq car blue during .Tune, 1911. The car had a cracked cylinder. | Witness only received £5 for the job. When he Vent down to the garage to I collect the balance (£3) Wallath told .him the bird had flown. Gunson told 'witness when he was painting the car not I to tell anyone about its change of color. His Honor: Did you know you were I committing an act of piracy? —No. | Witness "'Med that when he saw Wal- | lath, he (Wallath) "told him that he knew.the car was being painted. This surprised witness, and Wallath promised him his ■ £3 if he got his money out of a law suit. D. E. Lyttle, Motor engineer, who was in the employ of Gunson at New Plymouth, deposed that it was very seldom that Wallath was not in Gunson's garage at least once a day. Wallath was in there often enough to know of the receipt and the sale of tha two Darracq cars imported by Gunson. Three other witnesses were also heard, and this concluded the _ taking of evidence, and the case was adjourned 'until 10.30 o'clock this morning, when f counsels' addresses will be delivered.