SUPREME COURT NAPIER.

Daily Telegraph (Napier), Issue 3270, 24 December 1881, Page 3

SUPREME COURT NAPIER.

CIVIL SITTINGS,

FRIDAY, DECEMBER 23

(Before Hia Honor Mr Justica Richmond, and a special jury) SUTHERLAND V. BANK OF N.Z.

Cross-examination of J. Sutherland by Mr Cotterill, continued:—l made up the price at £2,000 for the land, and £1200 for the sheep. The total amount was arranged to be paid in cash on delivery. The name of the firm was J. Sutherland and Co., Mr Newton possessing a half share. I filled in and gave the cheque for £200 to Mr Balfour as agent in selling the property. I also believed the money was for the Bank of New Zealand. The manager threatened to throw up the transaction if I did not give the cheque, and said that I might look out for consequences. Mr William Balfsur was present during this time. I never told Mr William Balfour that he ought not to pay the discount. I am not aware whether any demand had been made upon Mr Balfour or the bank until the issue of the writ.

By Mr Lascelles: Mr Miller had sued and obtained judgment for £162. I gave a P.N. for the amount.

Thomas K. Newton deposed that he was, in July, 1879, interested in the sheep run with Mr Sutherland. Pie remembered being in Mr Cornford's office and signing a conveyance of their interest in part of the Mohaka run the price was about £3200. He did not hear anything about discount being allowed. Mr Sutherland and Mr Balfour went over to the bank afterwards. After the deed was signed Mr Cornford said nothing remained but to pay the money, and asked Mr Balfour if he had brought the cheque. Mr Balfour, however, said it would be paid over at the bank. By Mr' Cornford: Witness left the management of the property in the bands of Mr Sutherland. He never beard of the cheque for £200 for months afterwards. The partnership was nominally dissolved in November, 1879.

Mr Lascelles said he would like His Honor to decide on the point aa to whether the action should have been jointly taken by Sutherland and Newton. After a little discussion, His Honor said there were other points in the case which presented difficulties. It might be convenient to ask the jury to assess the damages. His present opinion was rather against the action, and it might be convenient to give leave to enter a verdict for the £200 and the discount, or either, and leave the rest for amotion afterwards.

Mr Cotterill applied for a nonsuit, on the following grounds: —(1.) That Mr Newton was a joiat partner with Mr Sutherland and should have taken part in the action ; (2) that there had been no duress or coercion proved; and (3) that admitting all the facts the bank was not liable.

Mr Lascelles still held that there was evidence to go to the jury as to whether the plaintiff believed that Mr Balfour was acting throughout as manager of the bank.

His Honor pointed out that if the nonsuit were set aside it would mean a new trial.

Mr Cotterill said they were quite prepared to risk that. His Honor then proposed that a verdict should be entered up for the plaintiff with leave to move that a verdict should be given for defendant on the legal points. Mr Cotterill explained that they could not consent to a verdict with leave to move without having evidence on their side'

His Honor said he felt disposed to nonsuit the plaintiff. T. W. Balfour, manager of the Bank of New Zealand, was then called, and deposed that J Sutherland and Co. had been customers of the bank for several years. Prior to July, 1879, the account had been considerably overdrawn. On June 19 of that year he wrote to Sutherland about it, and plaintiff came down from Mobaka to see him respecting the matter. Plaintiff told witness that he had, or was going to, put the property for sale in Mr Miller's hands, and that Miller Waß to charge him £200 for commission and expenses. Witness's brother soon after arrived in Napier, and plaintiff was introduced to him, and the two went off to Mohaka together. Subsequently witness saw Sutherland, who said Mr W. Balfour was going to purchase the run, in the event of which witness would receive the commission, as the sale had been taken out of Mr Miller's hands. Witness was not present at Mr Cornford's office when the deed was signed. Plaintiff bimself made the arrangement for paying £200 commission on the sale. Witness never coerced plaintiff or held out any threat that he would knock the whole arrangement on the head.

By Mr Lascelles : Witness might have written to his brother Btating that the Little Bush was for sale. The bank bad no hold over it, and the owner of it was not in the same position as Sutherland. If the Loan and Mercantile Agency Co had he could not say. In the interview in the bank parlor he was acting as a private gentleman, and not in an official capacity. There was no pressure to make Sutherland give tbe £200. After that sale there was still an unsecured overdraft of £1000. Witness received in May last a letter from Sutherland's solicitor, Mr Lascelles, demanding payment of the amounts claimed. Witness might have applied to Mr Miller for a written description of the property, and handed it to his brother, but he had no particular recollection of it.

By His Honor: The £200 was paid into witness's private account.

Mr Lascelles here admitted that after consideration he came to the conclusion that the bank was not liable on account of the discount.

Mr Cotterill and Mr Lascelles then addressed the jury on the subject of the £200, after which His Honor summed up and directed the jury to answer the second issue (involving the question of legal or illegal pressure upon the plaintiff) in the negative. The third issue, relating to discount, had been withdrawn.

The jury retired at 5 o'clock. At 6 o'clock the foreman came into Court and asked His Honor if a verdict of threefourths of the jury would be taken. His Honor replied that he could not do so until they had been locked up for three hours, unless counsel agreed to takea three-fourth's verdict.

Counsel having assented, His Honor said he would take the verdict, provided ha were assured there was no possibilty of any agreement. The foreman stated he did not think they would agree if locked up all night. At 6.45 the jury returned with a unanimous special finding—"That the plaintiff believed he was paying the £200 commission to the bank through their manager, but the evidence proved that the manager was acting in a private capacity." His Honor said it was a rational answer.

Eventually the matter was settled by leave being given to either side to move to enter a verdict for their respective

clients at the first Bitting in banco after the vacation, the evidence upon tho Judge's notes to be used. Judgment was formally given as follows, so as to enable a motion to be made:—"Damages to stand at £200, provided the Court is of opinion that plaintiff is entitled to judgment.'* This closed the business of the present circuit.