LAW REPORTS.

Dominion, Volume 1, Issue 274, 12 August 1908, Page 9

LAW REPORTS.

SUPREME COURT. SEQUEL TO AN.ELLIOTT SWINDLE. CLAIM TO RECOVER MONEYS. JAMES J. AMES v. ELIZABETH MILSOM. JUDGMENT FOR PLAINTIFF. . Judgment was delivered yesterday by Mr. Justice Chapman with respect to the .case of James John Ames, accountant, v. Elizabeth Milson, face specialist, a.claim for the sum of £370. • . His Honour said that there was no important disputed fact or conflict in tho evidence and the question was which of two ■innocent parties was to suffer by tho fraud of one Albert Clarence Elliott who was now undergoing imprisonment for fraudulently obtaining the sum in question and other sums. Elliott had undoubtedly swindled the defendant out of large sums representing years of hard-earned savings. irrespective of . the present dispute. Plainiiff intimated to Elliott his willingness to buy defendant's house in Hawker Street which Elliott represented was in his hands for sale. There was some foundation for Elliott's representation but the nature of the authority was in dispute. On February 14, 1908, lllliott made a contract with the plaintiff for.the sale of the property to him, subject to tho approval of defendant. Plaintiff instead of paying the amount now in question to Elliott drew a cheque in favour of tho'defendant or her order. Elliott'with some demur'took the cheque and went with it to tho defendant who was very busy at tho time. The- Court was quite satisfied that defendant gave her evidence truthfully, and it would adopt her narrative of what happened during the interview. Iu effect Elliott told defendant that the- cheque which he persuaded her to endorse was to be in the bank until the 28th of tho month in question. If sho did not sign it, there was, Elliott declared, a probability that plaintiff might refuse to go on with tho purchase. Tho representations about tho plaintiff were all false. Elliott at once misappropriated the cheque to stavo off' pressure. A question was raised as to the extent of Elliott's authority. Elliott had at least authority to make an agreement such as he made subject to defendant's approval. Ho hacl, however,. no authority to take a deposit. Tho execution" of the agreement did defendant no harm as she was hot bound to approvo of it. It was open to doubt whether defendant ratified it, for plaintiff did not bring the matter under her notice but left it to Elliott to do so on. tho assumption that that was Elliott's duty, A subsequent bargain between plaintiff and Elliott did not effect tho relation between' plaintiff and the defendant, but it debarred him frorrt relying on tho presumption that Elliott's knowledge of,tho agreement was defendant's knowledge) as he had himself though quite innocently given Elliott an interest in keeping from defendant the documo'nt; which would show tho error in the price. . A fraud'had, his Honour continued, been committed and tho question was upon whom. Tho defendant's signature was obtainod not by a misrepresentation resulting in a total misconception as to tho nature of the document sigiied as in tho case of Foster v. Mackinnpri, but by a misrepresentation as to the arrangement mado with the plaintiff as to the course to be pursued ana as to •several collateral matters. It was a rule that when one of two innocent persons must suffer by such a fraud tho ono'who had dono an act facilitating tho committal of the fraud should bo the one to suffer unless there was some legal reason for casting tho burden on the other, i Plaintiff seemed not to liavo actually suspected the projected fraud, but ho determined -to placo his money in tho hands of the vendor herself. and took tho only step he could take to do so. That was the act of a man acting with the caution which a prudent man would adopt in such circumstances. '■ It was said that he facili-. tated thb committing of thQ fraud. It was truo that in that form at least it-would not : liavo been committed had he not-given tho chequo, but a man who did that kind of act as a precaution against , fraud or loss could not be 'blamed if - somo ■ other was loss cautious.- - Then what had defendant done P The Court could only refer to her own narrative. 'Several times in the course of tho interview with Elliott she showed reluctance to .sign the cheque despite the fact that she had already lent Elliott some thousands of pounds. Tho transaction must have seemed to her unbusinesslike though she had no suspicions of Elliott. In the end she yielded to s Elliott's importunities, endorsed tho oheque and.handed it back to him. Ho (his Honour) could not distinguish that, act so far as plaintiff was concerned from accepting plaintiff's money and doing what slie thought fit with it. It was argued on her behalf that she never made it her own, but that sho simply signed under a fraudulent inducement. The Court, could not accede to that. Sho took the chequo from Elliott, looked at it, and saw the' amount and endorsed it in order to bind tho purchaser, then handed it over to Elliott, trusting him where the plaintiff did riot care to trust him. In this way, ho (his Honour) thought sho took tho money into her possession- and, without the authority of the plaintiff, made Elliott a trustee of it upon terms prescribed by him and assented to by hersolf. . His Honour, iu conclusion, said that if it were assumod • defendant never made tho cheque hers it did riot matter so far as plaintiff was concernod in whose hands it was, as the defendant alone could cash it. In thoso circumstances, though feeling that her act was an incautious ono, and so expressing herself to Elliott, defendant took up'un hersolf. to alter plaintiff's property, and so'enabled Elliott to make away with it. Though ho could not help feeling a ro'gret in having to give a judgment which would add to defendant's losses, he must do justice to the plaintiff, who had throughout aoted with duo caution. Ho did not think it was] incumbent on him to allow interest; a jury wpuld not allow any, as tho plaintiff entered upon a speculative' purchase, which might or might not havo led to a profit by this time. Judgment would bo for tho plaintiff for £370; costs as per scale; allowance for second day £5 55., and for socond counsel £5 fis.; witnesses' oxpensos and disbursements to bo fixed by the Registrar. "

Mr. Josnston (with liira Mr. Rothonburg, appeared for plaintiff, and Mr. Gray for defendant.

I . • IN CHAMBERS. A sitting in Chambers was hold by Mr. Justico Chapman yestorday. Probate of the wills of the following deceased persons was granted:—Win. Galbraith, Christchurch, confectioner; Beatrice Robena Macphorson, Lowisham, spinstor; Lucy Swain, Napior, widow; Joseph Edmundson, Napier, retired officor: Anuroiv Anderson, Greymouth, carrier; Ebenazer Stevens Norrio, Johannesburg, insurance manager; Wm. Williams, Brydono, carpentor; Louie Mario M'Rao, Staveley, married woman; James Bragge, Wellington, photographer; Chas. Beaumont, Wellington, settler ; Wm. Irvine, Lyttelton, labourer—all on the application of the Public Trustee; Elizabeth Josephino Tolhurst, Wellington, married woman (Mr. Brown); Jnmos Moncrieff, Carterton, farmer (Mr. Myers); Adam Shaw, Wanganui, labourer (Burnett and Gordon); and Duncan M'Kcnzio, Wanganui, settlor (Burnett and Gordon). Letters of administration wero granted in respect of the estates of tho following docoascd porsons: —Thos. Craig, Dunodin, commercial traveller; Arthur Brown, Inglowood, farmer; Wm. Bond, Ongaruo, storekeeper— all on the application of tho Public Trustee; and Frances Sarah Lawrence, Flaxbourno, married woman (M'Callum and Mills), The oase of M'Ardlo and another v. Pass and another—a claim in rospeot of tho alleged loss of stock during driving operations —was removod into tho Supremo Court for trial at,. Palmerston North. Mr. Neavo appeared on behalf of the plaintiffs, and Mr. Jackson for the defendants. . x His Honour hoard argument with reference to an application, to have John Alfred i'limmor, manufacturer, and Charles Plimmer, settler, joined as co-plaintiffs in tho action of Allen Maguire and Hamilton Gilmer v. Edward ' Wilson, hotel-keeper, ■ upon the grounds:—(l) That .they wero the registered proprietors under the Land Transfer Act of

tho land subject of tlio leaso which is tho Albert Hotel, situated at tho corner of Boulcott and Willis Streets, which is tho subject matter of tho action; (2) that tho plaintiffs have agreed to purchaso tho land, but the titlo to it is not as yet completed; (3) that John Alfred Plimmcr and Chas. Plimmer aro necessary parties to the action, and that they consent to bo joined as plaintiffs, and that they should liavo been so joined; (4) that the non-joinder of John Alfred Plimmcr and Chas. Plimmer arose through a bona-fido mistake; (5) that such .joinder is necessary to enable tho Court to fully and effectually adjudicate - upon tho claim, and to enable the 'plaintiffs to get full relief; and (6) that the defendant would not bo prejudiced in his defence in any way by sucli joinder. Mr. Blair appeared in support of tho motion, and Mr. Herdman to oppose. His Honour reserved his decision.