CLAIM FAILS

Dominion, Volume 21, Issue 260, 3 August 1928, Page 9

CLAIM FAILS

TROUBLE OVER MOTOR-CAR “RESTITUTION—OR PROSECUTION” An echo of recent Court proceedings was heard in the Magistrate’s Court yesterday when Mr. E. Page, S.M., delivered judgment in the case of Scott and Menzies Ltd., merchants, against H. N. Smith and Cornelius Bray. At the hearing of the case, in which Scott and Menzies claimed the recovery of a motorcar and £2O damages for alleged detention of the car, or £lOO in lieu thereof, from Smith and Bray, the plaintiff company was represented by Mr. A. Cousins and Smith by Mr. C. Spratt and Bray by Mr. A. B. Sievwright. “In January last,” said Mr. Page, “the plaintiffs, who are merchants in Wellington, discovered that one of their employees (X) had embezzled some hundreds, of pounds of their money. They taxed him with the theft and he admitted it, and some negotiations followed with a view to making restitution. “The assets over which he had control were: (1) The equity in his house; (2) the furniture therein; and (3) a motor-car held by him under a hire purchase agreement. “X interviewed the plaintiffs’ solicitor and gave him details of the property and of tlie encumbrances thereon. He supplied a list of the furniture, together with an estimate of the value thereof, and he gave details of his hire-purchase agreement, and handed in the certificate of registration of the motor-car. He asked for an understanding that in the event of his making restitution the plaintiffs would not institute criminal proceedings against him. Of the three directors of the plaintiff company, two were in favour of taking the restitution offered, but the third favoured the institution of criminal proceedings. While the matter was still under consideration by the directors, X left at the firm’s premises the motor-car, and he attended at the office of the motor firm, from whom the ear was leased, to make arrangements for the transfer to plaintiffs of the ’hire-purchase agreement, but no formal assignment to the plaintiffs of the hirepurchase agreement, or of X’s Interest in (he car was ever executed. “While the questions above mentioned wore still under consideration by the plaintiff company, the third director, .without the knowledge ‘and against the wishes of the other two went to the police and laid an information against X, who was forthwith arrested. On being liberated on bail, pending the hearing of the charges, X went to the firm’s premises, and, without their knowledge, retook possession of the. car. lie subsequently sold his interest in it to the defendant Smith, who in turn sold it to defendant Bray.

The ear had been in the plainiff's possession for some weeks, and duriug that time they paid one monthly instalment, of hire purchase money (£8 Ils. Bd.), which fell due on it, and also paid a sum of £1 18s. for some minor repairs to it. I “X has been convicted of the thefts, and is now serving a term of imprisonment. “The plaintiffs,” continued Mr. Page,

“have demanded possession of the ear from the defendants, and, not having obtained it, they have brought the present action, claiming to recover the car (or the sum of £BO in case possession cannot be bad) aud £2O damages for the detention thereof.

“At tlie conclusion of the case for the plaintiffs, counsel for the two defendants applied for a. non-suit, or for the judgment for defendants, on the ground that t lie plaintiffs’ claim had not been established.

In Mr. Page's opinion the case resolved itself into thezquestion whether the plaintiffs would have had the right “as against X” to recover possession of the car. If

thev had had that right, the subsequent disposal of the car by X to the defendants would not have defeated it. The defendants could not get a better title than that held by X.

The plaintiffs, continued Mr. Page, based their claims on an oral agreement by X to transfer to them his interest in the ear, and in tlie hire purchase agreement, together with the delivery of the car. Though the delivery of the car was a strong circumstance in the plaiutffs' favour, Mr. Page considered that the evidence fell short of establishing a transfer by X, or a concluded agreement by him to transfer j'td“the plaintiff :s his interest in tlie gar.X?s offer gave the plaintiffs two alternatives —restitution, or prosecution—and having adopted the latter, they would not have been entitled to recover the car from X, and were therefore not entitled to recover it from the defendants. Mr. Page thought that it might be that, as against ■. X, the plaintiffs would have lind'a lien on the car for the amount paid by them.on ,it (£lO 9s. Sd.), but, the lien having been. lost, that alone gave them no rights against the • defendants.

“I may say,” continued the Magistrate, “that it the circumstances as above detailed had been sufficient to establish an oral transfer, or an agreement . by X to transfer ills interest in the car, there exists, in my view, another ground which would disentitle the plaintiffs to recover. "I entertain no doubt that the true offer made by X was to transfer to the plaintiffs the properties above mentioned in return for an agreement on their part not to prosecute him. It would be on this agreement Hint the plaintiffs would bo compelled to rely for their claim to the car, aud it is clear that such an agreement would not lie enforced. An agreement to stifle a prosecution for theft is .contrary to public policy, and is illegal, and tlie law will not enforce a contract based on such a consideration.

“For- these reasons,” concluded Mr. Page,: “1 am of opinion that the plaintiff’s claim must fail.” --

Judgment was accordingly entered for defendants, with costs to - scale.