THE LYSNAR CASE.

Ashburton Guardian, Volume 48, Issue 7, 19 October 1927, Page 6

THE LYSNAR CASE.

W. D. LYSNAR WINS APPEAL. (Per Press Association.! WELLINGTON, October 18. The Appeal Court delivered judgment to-day in the case of W. D. Lysnar v. Dorothy Valentine Burnard, wife of Leonard Thomas Burnard, of Gisborne, solicitor. Mr Justice Reed, in reading the judgment, said that the Court, after consideration, came to the conclusion that whether the man was the principal debtor or surety was a question of fact, and that all business was transacted with G. H. Lysnar, not W. I>. Lysnar, and that the appellant was not consulted on the iliost important question of extension of time to his brother. The Court considered that Bennett’s knowledge of appellant’s suretyship only' must be attributed to Burnard. Burnard’s knowledge should also be attributed to his client, who was his wife. The Court also thought that respondent took the transfer of bill of sale subject to equities arising upon it. If a loss arose, it fell on him, whose duty it was lo make inquiries. Appellant was not called upon to give Mrs Burnard any notice of his real position, because of the relationship of dealing between Burnard and Bennett. Appellant was entitled to be discharged from his liabilities, as he was not consulted when G. H. Lysnar was given a further time. The appeal was allowed with costs on the highest scale.

In March, 1927, respondent claimed against appellant and his brother the sum of £3161 13s 9d, and interest, alleged to be the balance due by them upon an instrument by way of security over chattels of which respondent is registered as the transferee from the original grantee. The facts are that a firm named Bennett and Sherratt supplied goods to G. H. Lysnar upon his promissory notes, endorsed by W. D. Lysnar. W. D. Lysnar received no value for his endorsements, but was purely an accommodation party to the notes, and this was known to C. H. Bennett, a member of the firm, who, upon the subsequent dissolution of the firm, became the holder in due course of the notes. On October 26, 1923, the notes being overdue, Bennett coin■meneed two actions in the Supreme Court against both defendants, claiming moneys due under these notes. Bennett’s solicitors were Messrs Burnard and Bull, Burnard being the husband 'of plaintiff. These actions never came 'to trial, but were compromised by defendants joining in execution the bill of sale over certain chattels owned by W. D. Lysnar, to secure a sum of £5280. with interest, to Bennett. Numerous complicated transactions subsequently took place, with the result that in December, 1926, the amount claimed was alleged to be due. On the day before the hearing G. H. Lysnar confessed judgment of 03335 13s 9d with interest, but appellant defended on the ground that lie was, to the knowledge of respondent, a surety only, and that as time to pay had been given to his brother, and the contract materially varied without appellant’s consent, he was thereby discharged from any liability under it. Mr Justice Ostler board the action, and gave judgment in favour of Airs Burnard, against both defendants, for the full amount _ claimed. The appeal is against this judgment.