THE BANK OF NEW ZEALAND-FLEMING CASE.

Press, Volume LVI, Issue 10264, 6 February 1899, Page 3

THE BANK OF NEW ZEA-LAND-FLEMING CASE.

(press association telegrax.)

WELLINGTON, February 4. Judgment was given in the case Bank of New- Zealand v Fleming, in the Court of Appeal to-day. The judgment of the majority of the* Court, consisting of the Chief Justice and Mr justice Coiiolly, was in favour of the appellant Bank, Mr Justice Denniston dissenting. The case was one in which the respondent recovered a verdict for £2000 damages against the appellant Bank at Invercargill for the dishonour of certain cheques. Respondent, who Mas a stock-dealer, had arranged an overdraft with the Manager of the Bank at Invercargill. Being about to leave town, he wished to arrange for an increase of overdraft, but was unable to see the Bank Manager, and therefore arranged to borrow £1000 from the Southland Frozen Meat and Produce Export Company, which Company's manager undertook to pay into respondent's Bank the account at once to meet the cheques he intended drawing. The Company's manager saw the manager of the Bank, and told him of the arrangement, and asked if it would suit the Bank as well to take a store warrant for certain sheep from the Company in lieu of £1000. The Bank Manager agreed to this, and accepted the store warrant. Owing to some misunderstanding as to the purpose for which the store warrant was deposited, the cheques given by the respondent were nevertheless dishonoured. The respondent brought an action against the Bank, which was tried at Invercargill before Mr Justice Pennefather and a special jury. They found for the respondent, and awarded damages as above. The appellant Bank afterwards moved for a nonsuit, or for judgment in its own favour, notwithstanding verdict. Mr Justice Pennefather dismissed the motion, and gave judgment for the respondent. The present appeal was from this decision. The grounds on which the appeal has now been allowed by the majority of the Court are that the manager of the Freezing Company had no authority from the respondent to do anything but pay £1000 in cash into his account, and that, as there was no ratification by the respondent of what had been done until after the breach by the dishonour of the cheques, the ratification was too late, and there had been no contract between the Bank and the respondent on which he could sue. Further, as the manager of the Freezing Company had not professed to do what he did as agent of the respondent, but merely to suit the convenience of the Company, there was nothing capable of ratification" by the respondent, nor could there be any estoppel between the Bank and the respondent by reason of anything said by the Bank manager to the manager of the Company. The majority of the Court were therefore of opinion that there should be judgment for the appellant Bank. They were also of opinion that there would in any case have had to be a new trial, both on the ground of evidence wrongly admitted and on the ground that the damages were excessive. Mr Justice Denniston, though dissenting from the other members of the Court on the main question, agreed with them that a new trial must in any case have been granted on the above grounds. The appeal was allowed, with costs on the highest scale, bub certain questions in regard to costs were allowed to .stand over to the next Court of Appeal. An application was made for leave to appeal to ' the Privy Council, and -was adjourned.