KEER V. MORRISON.

Tuapeka Times, Volume III, Issue 146, 24 November 1870, Page 5

KEER V. MORRISON.

As there was some dienssion raised by our report of the cisc Keer v. Momson, when heard before the l.eskient Mayit*tiate, Lawrence we consider it necessary to insert the foil-. wing report from the •'Daily Tnius," of tuj appeal c:«a as - haard in Banco, before his Honour Mr. Justice Chapman. KSER (appellant) v. MORRISON (respondent.) This was an appeal from a decision A given in the Uesidout Miig.scrate's • otirfc ■ at L-iwrencv. Th i appellant was f«>rmi'riy_J| in tne cmi 1 -y of Buchau. the owner of a saw-mill at the uioutn of the Tua,_>eka river ; and wlule so employed received from his m.ister a cheque for 1-12 oil account of wages due to aim. Before the cheque was presented, the saw mill was purchased from iiucluin by Morrison. Part of the purchase -money was paid in cish, and therj was also a verbal understanding that Morrison sh'»ul I pay all wages rheu outs'anding. Some time after the sale, the cheque for Ll2 was presented at the Bank and dishonored. Momson refused to pay the money ; and ultimately Iveer summoned him for the amount. Plaintiff averred that he was a paity to the Vbi-bal understanding cotne to when tae sale of the mill was effjc ed ; as alsu certain verbal promises to pay made sn >- sequently by Morrison. The latter pleaded that payment of the Ll2 d d not come within the scope of his agreement, the debt having been diidmrged when tlie cheque was given ; and also that the Statute of Frau.li» was inapplicable. Tlie Magistrate held that ;h s evid tia was insutKoient to support tlie plaint tKsA— tjie^_ case Ciime within the Statute of Krauds,S and gave judgment for defendant. Against this decision Kser now appealed. * Mr Macassey was counsel for the appellant, and Mr B. C. Haggit for tho respondent. His Honor : The whole quvsinn here really is. whether this is to be re.ardeJ »a a collateral undertaking to p.iy the debt and miscarriage of another persor, or whether it is an independent undertaking upon sufficient consideration. If it is to be regarded as acdlateral undertaking, then it would be defective i:n two pounds — not only under the Statute of Frauds, as being contained in no mem >r.anduni of writing ; but also for w.mt of c >ns derat.Uii. But it is uryed I'y Mr Maca-soy that this is analo^o is to a d.rection to pay mout-y out of a fund in .Morrison's hands, it appears from the fadb stated, that Momson purchased*' ifom Buchan some leasehold propcaiteyT and he got in the equity of rtideiuptioui bef-ire-li.uid, so it is to be presumed', that he became the holder in fee. He p\aid part or the purchase-money, but uiot tha whole ; and as to the remainder, \he \iiir, dertook with Buchan to pay certaiii wageK then outstanding. Th>- only portions of' wa o f es so outstanding undt-r noticuNhert.!, j are two amounts due to Keer, of 1.3 and ' LI 2 respectively. The L 8 lias b^e«i? disposed of elsewhere by payment, and tne only question is, as to the liaMli'y of Morrison to pay the L12 — lot to pay the cheque, but as wages, as part of his un-J dertaking. There is no doubt, from th^| cases cited, that it h.is been lv Id that, u^| order to make Morrison lia >le to K-er infl an action, there must have been a subs'ifl tu tio u of Morrison's liability for that ofl Buchan at the time ; and a dnuht^jxistsJH from the inconsistency which I have * pointed out upon the different facts proved and stated between the averments. Usie is, that the whole of the three ~vi-en*~-i parties to this transaction, and that Keer accepted the liability of Morrison ; and that tha latter undertook to meet that ' liability. If Morrison's liability was so accepted by Keer in lie'i of that of Buchan, it amouuts to a complete discharge of Buchan, aud Keer would not he entitled to fall bac.c upon Buchau under any circumstances whatever. But then comes another averment, which seems to cast some doubt, at all events, upon the averment fchrit Kior did accept the liability of Alorrison, wliieii spates that K'ier did j accept the liability of Morrison, which states that Keer presented the c'leque at some time or other, the time not being denned more nearly thjwH^j^MvasH^jJ the salt 1 , 2?6w," thissfcate of f acEriTqTut.e^-' consistent. Ha may have applied to Aljirfison under the latter's promise to pay, and the previous agreement, for his > LBand Ll2. lie guts the LB, and then finding that Morrison, in spite of his , promise to pay the ofher Ll2, does not pay it, he, like a drowning man catching • at a straw, endeavors to fall back upon Bnehan by presenting the cheque. And,' - in that view, 1 do not think that the fact ; of his trying to get the value of the cheque ( from the Bank afterwards at all affects, J or modides, or takes away the fore; of the m previous averment. 1 take it, therefore, I chit that averment is quite sufficient to \ show that Buchan was discharged, which | settles the cases cite.l by Mr Ha^gitt. I take it that it was a portion of a valid 1 fund ; that'Morrison agreed to hold thattfl fund to Keer's use ; aud that Iveer agiec^H co accept Morrison's liability iv lieu <^H Buchau's. In other words, he discharge^H Buchau. This makes it an indent* udei^H undertaking, which would give Keer^H right of action ; and not a collateral tin^B Jertaking, whioh would rrquiru to beY ■ under the Statute of Frauds. It is quite\ 1 clear tha common honesty and <vjuity are-^J on the side of that interpretation ; ana I air hough from these two contradictor! ■ avL-rinent-s, there 'may perhaps be a Uttll I doubt in tho case, 1 think it is quits. I within my province, where there tsaLl slight ambiguity in a case of this kind, t^Z9 seiz=i upon a distinct averment which o«>il^| sist3 with common honesty and cojmmM^H equity. l think,. thorefora^^^SJl^^B ' appellant is entitled togn^^^^^^^^^^^H Appeal uHowcd^Htftf^^^^^^^^^^^|