Supreme Court

Taranaki Daily News, Volume LVII, Issue 4, 23 May 1914, Page 7

Supreme Court

YESTERDAYS PROCEEDINGS. THE GUARANTEE OASE.„ When the Court resumed yesterday evidence was continued for the defence in the case of Milis and Sparrow v. San- : dinon and Bruce, a suit on a guarantee. William Thomas Mackny, of Ohura, deposed that he was present when the lii'.-t agreement was entered into in a litore at Ohura. The document was not signed then, but Grilliths was present then. There were about Iwentiy- or thirty settlers present. Tho agreement was signed at a Meeting at Matiere next day. There were several questions asked about it. Witness signed the first ngrecment. He remembered the meeting at the factory at Nihonilio soon after tho factory started. He was present. He was not a shareholder in the Company, but he got a notice to attend as a, signatory of the first agreement. The chairman arrived before him. Mr. Griffiths gave a short address as. to the delay in" erecting the factory, about which there was much dissatisfaction, as the proprietary factory had been able to start earlier than the co-operative concern, which seriously affected the prospects of the latter.' When Mr. Griffiths had spoken, he produced the' ■ second agreement. Wheri f he had read 'it several questions were asked. One which the witness asked was whether he had built the factory with reasonable despatch as mentioned in the first agrcement, arid Griffiths replied, "Certainly " ' Witness disagreed with him, .pointing out .that the contractors were bound to time. , He had replied that it was impossible.to bind contractors for such a, building. Witness, at the close of the meeting, refused to -take up shares, but told Griffiths that he would supply for the season. Griffiths then said, "I'm sorry; I will have to force your hand." Witness replied. "Fire away." Since then he had heard no more of the. matter. To Mr. Hutchen: He had told the Court all he said at the meeting at Nihoniho. He saw Mr. Hine there, but he was not exactly taking part in the discussion. It was an open-air meeting. Mr. Hine could hear all that was said. He knew that Mr. Hine was solicitor to the Company, and had been acting for the shareholdffrs-i There was only one document produced at the meeting. He had no recollection of the reading of a deed of mortgage from the Company to Mills and Sparrow. To Mr. Xorthcroft: Mr. Griffiths handed the agreement round, and it was signed. He took no further notice of it because he was so disgusted. David Jamieson Bruce, of Ohura, deposed that he was at Ohura- when negotiations with Mr. Griffiths began. He attended a meeting in the stdro and one at Matiere next day. At tlwt meeting Mr. Griffiths, in reply to a question put .through the chairman, said that the agreement then signed would be legal ftnd binding. He remembered the meeting at Nihoniho when the second agreement was signed. It was about fourteen days after the factory was started. Mr. Sandison was chairman. Witness corroborated the statements of the previous witness as to the questions. Mr. Griffiths said that he would compel signatories to ihe first agreement to sign tho second.

To Mr. Hutchen: There were considerable difficulties in the erection of the factory, and the delay was not entirely due to Mr. Griffiths. He thought it might have been built sooner. There was no delay in providing a site. Mr. Griffiths did not say merely that'Jic could force the signatories to the first ngrecment to sign the second, but decidedly that he would do so. Witness was a director of the Company up to its liquidation, and had a knowledge of the correspondence. He iromembercd early in 1012 a proposal that the mortgage and guarantee should be extended for five years. That proposal might have emanated from the directors, but the shareholders would have nothing to do with it. He remembered that there was read at a meeting of the directors a letter from E. Griffiths and Co., dated Feb. 21, 1912, in which they asked for a meeting in about three weeks' time to "discuss an extension of Mills and Sparrow's mortgage.-'' He did not remember fit a meeting in May the secretary was instructed to write for a rough' draft J the proposed extension. His Honor: As far as I can see, tho affairs of the Company have nothing to do with the case.

Mr. Northcroft interposed that Sandison, as chairman of directors, would know more, about if, and offered to recall him if Mr. Hutchen liked.

His Honor ruled it irrelevant.

•Continuing, witness said the directors were not anxious to renew the mortgage and guarantee, unless they could get a. sufficient number in it. The Company in lfli-2 or ].,i 3 eiloc j onft man under the second guarantee for not supplying the factory with milk. He thought the second agreement hail been left with the .secretary of the Company to obtain more signatures, but did not know whether the latter had a list of the signatories to the first one. After they, got the first agreement tliev did not try to get signatures 'to the guarantee because it was nothing to do with them. They used it to force in suppliers. If Mr. Griffiths had not said he would force the others to sign he would never have signed the second agreement. As the others had not signed he did not consider himself liable.

ll is Honor: Phey considered it an in-i-ompletu document until all had signed. Mr. Hutchen: But you knew that Mclvay said tie. would not sign it?—l thought Mr Griffiths would force him to.

Mr Ilutclicii: ]!ut Mr. Griffiths did not, as you know.—Hut lie told us ho would force them nil (o sign. Mr. Kinky: That \s just our issue. i o Mr. NoHhcroft: At a meeting held o consider the! proposed extension of the mortgage to Mills and Sparrow, the setilers would hay,; nothing to do with it. lie (bought that Mr. Grifliths was informed of this. Charles Henry McKinder, of Matiere, deposed that he had never signed the agreements. For some time after the Company was formed he acted as secretary t„ i(. Th ,:,t was his onlv int( . rcst in the concern. The meeting at Xihoii'lio was of those who had signed the first agreement made np from a list eupplied by tile previous secretary 11,. had not been aware that Mr. Hine was Mr. Or,mt,l m . m,, I]inp , ];1(1 llfivc! . ( uiged the Company for his visit. Mr lime took the agreement, and Mr. t.iilUtli.?i invited signatures. He . corroborated previous evidence. After the t-ignatures were, obtained the document was left w.th him by Mr. Grifliths. who <-nul that lie would profabh- know most «'t the people who signed the first a-n-ee-"icnt, and could probably get their sb'iulurcs. Witness did get some oAlie signatures After a month or two hj,. returned the document, because he had got all the signature, which he thought he would be able to get. He had not got the signatures of all who signed the first agreement, because some refused t,

He did not know whether Mr. Griffith}-: was aware of this.

To Mr. Hutchen: He did not show the document to his directors before he returned it to Mr. Grilliths'. Mr. Sandi-s-on did not see it. He did not inform Mr. Griffiths that there were signatures wanting to the second agreement. This closed the case for the defence. Mr. Finkiy asked permission to submit an issue to the jury.

His Honor: What is the issue? Mr. Finlay: Did tho defendants sign the guarantee of January 15, 11)08, on the distinct understanding that it should he signed by all who signed the agreement of April 18, 1907? Mr. Hutchen objected to the issue, on the ground that it was not according to the pleadings.

His Honor: The pleadings are nothing nowadays, but if there is going to be a dispute on the issue, I will <lirect the jury myself.

Mr. Finlay, in addressing the jury. I said that the issue which would be submitted to them by His Honor would be simple and must resolve itself into a close resemblance to that which he had himself suggested, for upon that point the whole case hung. As Mr. Northcroft had pointed out, ther%» was a distinct difference between the two documents. The second one was signed by many who did not sign the first, and for that reason left a heavier burden on those who did sign it. The law would say that if a man signed a guarantee expecting a certain burden,'-he could not be forced to bear more than that burden. In reviewing the history of the case, Mr. Finlay said that Mr. Griffiths was a man who had seen a business opening in the Ohura, and had taken it. He had told lliem in the box that he did not consider the first agreement binding, yet on that alone he spent £3OOO. He read the agreement, drawing attention to the clause to the effect that a new and binding agreement should be drawn up by Buddie, Button and Co., solicitors, which should be signed by all parties. Mr. Griffiths in the' box had told them that this clause/ had expressed his intention at the time. There wasi no conflict of evidence on this point. The document could not be got over. The plaintiff had forgotten a meeting which was of primary importance to him and ito the defendants. It was the meeting [ at which he, had to got his mortgage and guarantee signed. He severely criticised the evidence of the plaintiff, who had forgotten bo much. It was a significant fact, he said, that no evidence on the side of the defendants hod been shaken in tho least. After reviewing the evidence further, he concluded by stating that the defendants would be perfectly willing to pay their share under the first agreement with the other signatories, but not an unfair share under the partly-signed secnod agreement. NONSUIT AGREED TO. Mr. Hutchen had just opened his address to the jury when the luncheon adjournment was taken. When the Court resumed, Mr. Hutchen stated that during the course of the case evidence fiad been brought forward of which the advisers of the plaintiffs' had been unaware until they heard it. He had had a conference with the agent of the plaintiffs, and in consequence had to apply for a non-suit. Jlis Honor agreed to this course, and non-suited the plaintiffs with costs against them on scale, allowing a fee for second counsel. CASE AGAINST SOLICITOR.

The next case was that in which John Barron (Mr. W. D. Anderson) proceeded against W. G. Malone (Mr. A.' H. Johnstone) by an action removed from the Afagistrate's Court, Stratford, for £7 12s, alleged to have been received by the defendant as solicitor for the plaintiff, or in the alternative £7 Bs, being the balance of an account alleged to have boon lost to tho plaintiff by the defendant after allowing for credit due by plaintiff to the defendant, and ,t!5 as damages for alleged wrongful detention of deeds. Defendant counterclaimed for' £74 3s lid. The case arose from the fact that plaintiff had instructed defendant to act for him in the sale of a property over which he held a mortgage. Defendant was instructed to bid for plaintiff, and it was alleged that his clerk had bid at once £ 1220, whereas it would have been possible to buy in the property for less, and thus save the plain-

tiff the amount of auctioneer's commission which the higher price entailed. In the statement of accounts a sum of £Bl lis lid was set out which plaintill' claimed he had never had particulars of, and which he said had been paid to the mortgagor by defendant. The claim for wrongful detention of the deeds was withdrawn at an early stage. A letter was read from defendant |to Jplnintiffs (solicitors, stating that ihe [ would be pleased to meet them with a view to settling tho apportionments. The plaintiff, John Barron, of Toko, a retired civil servant, deposed that ho was the mortgagee under a mortgage, from ono Scvmour, and in consequence of default thereunder he consulted defendant and instructed him to foreclose under tlie mortgage,and told him he only wanted back his -own money and his expenses, but did not want to take over the land. Defendant advised a sale through the Registrar of the. Supreme Court, and the matter was left to him. Defendant made up witness' claim as

.■El'lfiß. Witness did not check this. On the morning before the sale he saw Mr. Malone again, and arranged that

the latter should bid at the sale, and to witness' astonishment defendant said he would bid £1220. Defendant explained that auctioneer's commission would come to £4O. At the sale de-

fondant's clerk, Jones, put in the only bid. After the sale, he got an account from defendant, showing a balance of £Bl . lis lid. After he itscertiiincd

,'hat this sum wa.s> paid over to the Mortgagor (Seymour) he wrote to de-

fendant and protested, as he had never been consulted in tho matter. There was no letter of explanation sent with the accounts. Defendant said that the county clerk had made a mistake in the rates, amounting to £3O. Defendant told him "he had no redress against the dork. He had never at any time been supplied with particulars of the - £Bl lis lid. ' To Mr. Johnstone: At the first inter-

view with Mr. Malone, the value of tho land was not discussed. On the day

of tho rale he did not see any likely buyers, nor was he told that there would be any there. He saw onlv a man to

whom lie had given an option in case, the land fell into bis hands. Immediately after the sale, be sold to a- inau at Piuiiwhakau, named Burton, one of the properties for £9OO. lie subsequently sold the leasehold for £80(1, including mortgage, and actually received aft»r the two transactions £l2(il net pro- , coeds..

J. S. MeDonahl, a son-in-law of the plaintiff, corroborated his evidence as to the interview with defendant, at which he was present.

Mr. Anderson remarked tliat wliatlus client objected to was the fact {hat tlie .£1221) had heen bid in one bid. A bid of £Bl' less would have been sufficient. Mr. Malono had been quite prn-

dent in makiiig provision for pos.-iiiie contingencies, but lie contended that he should have run tQie piopcrty up. Mr. Johnstone said that defendant had merely provided against contingencies in bringing the price from £116(1 to £1220. The defendant had" had reason to believe that other buyers would be present at the sale, ami if the price were advanced by several bids the sliding scale of commission would ■come into operation, and it would cost the plaintiff more than if only one bid were made.

| Ella McDonald, daughter of the plainI tiff, deposed that she helped her fattier [ with his business. She had written for him a letter to Mr. -Ma-lone, asking for items of the £Bl lis lid. She then went to we defendant for her father, and lie bad told her that he resented the attitude taken by her father, .who had made money by the deai and need not begrudge Seymour the £Bl Ha lid. He had never to that day supplied tike particulars. \

To Mr. Anderson: If Mr. Barron paid the £Bl lis lid he would be out of pocket on all transactions by about £4O. J

At tliis stage, Mr. Anderson said that if 'ho could be supplied with the details of the £Bl lis lid he would then be content to let his Honor judge as to whether there had been any negligence. They had certain information of errors and carelessness, but no details as to how the £1220 was arrived at. He was not of opinion that- Mr. Malone had been negligent; in fact, if Mr. Malone had made the calculations himself there would probably have been no mistake. Mr. Johnstone stated that he could make np the statement at once. The fact was that Mr. Malone had merely provided for certain contingencies, and, in fact, had been more than careful, and at the most the bidding could merely be an error of judgment. He referred to the mistake made in the county office. He made up a statement amounting to £I2OB. Mr. Anderson would not agree to iiho items, and still held that a lower bid would have been sufficient.

His Honor remarked' that the ease might easily have been settled out of Court. •It was simply a question of apportionment.

Charles Penn, county clerk at Stratford, did not remember supplying details of rates to defendant, nor admitting any mistake in supplying such details, To Mr Johnstone: He had, an assistant, who would have supplied them if he (witness) were away. At this stage, counsel requested a n adjournment to enable them to come to a settlement. At a. later stage Mr Anderson stated that a friendflv settlement had been arranged, and any implication against Mr Malone was ' now unreservedly withdrawn. IN DIVORCE. Maud Augusta Brereton (Mr D. Hutchen) applied for a dissolution of her marriage with. Walter Brereton, who did not appear, on the grounds of J drunkenness and failure to mnin-j, tain. She deposed that since her) marriage with respondent in lfiOfi hoi, ha<l been given to drink. In 1008 she" left'hint, with her child, and since then: lwd supported herself, indeed, respond-! cut had applied to her for money. i Samuel Jackson, of New- Plymouth, gave evidence as to tin; drunkenness of J respondeat. A decree nUi was granted, to be made absolute in thre-e months, with cost* on the lower scale.

Henry Cutting, of New Plymouth, laborer (Mr Ronald Quilliami), applied for a divorce against Esther Ruth Cutting (who did not appear), on.the ■grounds of adultery and dc-crtiou. P. 0. Perno was cited as co-respondent, and did not appear.

Appellant depoi-ed that his wife had I lived fairly happily with Win for a time, but later began to iii-treat her child and to go out too much. Sin deserted him in April, 101,3, and in March last he had gone with a detective to Roira Bay, Wellington, and found his wife living there with the co-respondent. A decree nisi was granted, to be made lbdolute in three months, with eustodv of the two children. No costs were nl-. lowed, as it had not been proved that co-re.'-pondent knew that respondent wa: married. APPEAL COURT. The appeal case of Edward ,Jame3 Smith (Mr P. O. De-.v) v. 11. I>. Armour,) police constable at Paten, from a eon-l viction by th- magistrate at Patea under the Licensing Act for permitting drunkenness, was dismissed after legal argument. Costs fa fis were allowed. Mr C. H. Weston appeared for the respondent. IN BANKRUPTCY. Discharge* from bankruptcy were granted to George W: Lawrence (Mr A. R. Standish), and to Guy Osborne Reader (Mr F. B. Wilson). This coneluded the session.