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SUPREME COURT.- CIVIL SITTINGS., Evening Star, Issue 7939, 21 June 1889
SUPREME COURT.- CIVIL SITTINGS.
Thursday, Junk 20,
(Before His Honor Mr Justice Williams and a special jury of twelve.)
Bank ok New Zealand v. Wilson, Taine, and Co.—ln this ease the bank claims 1.2,007 15a lid, due on an overdraft and on bills. There is also a cross-action in which the defendants chum from the bank LIO,OOO damages for injury to their credit through the bank’s having dishonored their cheques for wool bought while their wool account was in funds. Tho two actions were, for the sake of convenience, heard as ome.
Mr llaggitt, with him Mr F. R. Chapman, appeared for the bank ; Sir R. Stout, with him Mr J. Macgregor, for Wilson, Taine, and Co.
Sir E. Stout said ho wanted no side issues. There was a plain issue—was there an agreement made or was there not ? He admitted that in considering tho case they must look at the question of credibility, but so soon as his learned friend came to his own witness (Mackay), he in popular language, “ gave him away,” and yet the case for tho bank depended on his credibility ! It was a peculiarity of the memory of that witness that it was always at fault on behalf of the bank—he never made a mistake in favor of Wilson, Taine, and Co. With regard to the agreement, the bank said it was made on or about December 11. Why did it fix December II ? That was its pleading, and if it said the agreement was contained in writing, why did it not plead that the agreement was in writing ? The bank was bound by the rules if it wunted to rely on a written agreement to plead it. Not having pleaded a written agreement it had to rely on an oral agreement. When was that agreement made ? Did they believe that Wilson, who seldom wont to the bank, went down on a special errand and came back from Mackay without mentioning it, especially when Mackay admitted in April last that Wilson’s account was true, although he now said it was false? Did Mackay swear the truth at Invercargill, or did ho not'.' Jf he swore the truth at Invercargill, then Wilson's story was true ; if ho did not swear the truth at Invercargill, could they believe him in tho box at Dunedin? Mackay, Wilson, and Taine, who were the only three people at the making of the arrangement, all agreed at Invercargill upon the main question of the case : and it was only now, when his memory was at fault, that Mackay gave a different account. They had tho undoubted sworn testimony of two men as to what had occurred, and Mackay’a own sworn testimony at Invercargill was that Wilson’s account was correct, and Taine’s partly correct. In the face of that testimony were they to say that no agreement was made? What, he asked, did Mackay mean when he said at Invercargill that the No. 3 account was to be a] specially secured account on wool that was to come into Wilson, Taine, and Co.’s, and that the letter was treated in the light of a security ? The letter never purported to give all the conversation between Mackay and Taine, but was simply meant as something to show tho bank inspector why the account was opened, ana that was the advantage that it was to the bank to have the account opened. He asked if they could doubt that Wilson spoke the words of truth when he said the account was to bo managed tho same as in the year before, and, if they believed that, then there was an end to tho bank’s case. His learned friend had said they should look at the conduct of the parties in considering who was speaking tho truth, He was willing to look at tho conduct of the parties, and he submitted the test of the conduct was this ; that Mackay never attempted to say he had any right to the wool money till the 13th or 14th February, till he had got the big cheque in. If there had uot been an agreement in December, there was yet another cause of action agaiust the bank. The law was this : If a customer paid in cheques or cash to a bank, and told the bank at the time he was paying in, whether his account was overdrawn or uot, that the money was to bo applied to a special purpose, no bank in tho world could apply it to another purpose. Mackay (know that the cheque of WhiUinghum Brothers and Instono’a wan paid in to meet cheques that had been drawn aud we-io to be drawn on the wool account, because Taine told him that the chequeo bad been issued and might
be in before Whittingham Brothers and lustono’s, and had asked him to protect them. That would have been sufficient to enable the firm to sue the bank for the dishonor. Mackay, knowing that cheque to be paid in for a special purpose, had no right to use the money for any other than that purpose. In the interview of the 15th February, it came out from Campbell’s evidence Mackay was merely acting a part, for Campbell was told on the 14th February to dishonor Greenshield’s cheque, and was then told to rule out the cheques from the ledger. The meaning of that, he submitted, was that on the 14th Mackay meant to dishonor the cheques, and that his meeting with Wilson and Taine in the bank parlor on the 15th was a mere pretence. With regard to the striking of the words “wool account ” out of the heading of Wilson, Taine, and Co.’s No. 3 account in the bank ledger, he submitted that the true history of the circumstance was that after his interview with Wilson on the 14th, when Wilson dared him to touch the No. 3 money, Mackay struck out the words. It was only in his letter of the 14th thatMackay said anything about the accounts being treated as one, and it was on that date, no doubt, that he determined to seize the money. The defendants’ story was not a story concocted after dishonor. They took up a position boldly before their banker, and said “ You cannot touch that money.” If they had been In such a helpless financial position, he asked if they thought it was likely they would take up such a strong position with their banker. In the end, he contended, the only thing for the jury to consider was the question of damages. Wilaon’sand Taine’s accounts had not varied; they had not a convenient memory that was always at fault on their own behalf; they had kept nothing tack ; the bank had been unable to call a single witness to contradict them ; and yet the counsel for the bank invited them to take before their testimony the evidence of a gentleman whose memory was at fault—on whose memory they could not place implicit reliance. This was not a case in which the cheque had been dishonored of a man whose business was still going on, and who had suffered the loss of one customer, and possibly an injury to his credit and reputation through the dishonor of that cheque. This was a unique case, in which the whole of the firm’s business had depended upon their credit and reputation, and the business had vanished. Here were young men who had just started life, who had been about nine years in business, who had worked up their business in Invercargill and Southland so ttat it was the best in the whole district, who had all the farmers relying upon them, who had been able to maintain their credit and carry on through all the depression, and just when the depression was lifting and their business was increasing—as was to bo seen from their wool sales—when they wore going to mako largo sums of money, when everything seemed well for them, the bank came down and said: “You are to bo obliterated; deknda ed Carthwjo; Wilson, Taine, and Go. are to be no more.” What damages did the jury think would compensate them for that ? Small damages were no good. The firm had been ruined, ami unless they told this bank and all banks that they wore not going to allow any person to be ruined in this manner, there would be an end to all credit, and what had happened to Wilson, Taine, and Co. might happen to any of them to-morrow. It was not the dishonor of the cheques on No. 1 account that ruined the defendants —they had had more money in their pockets than would pay all those—but it was the seizure ol money which did not belong to them that ruined them, lie believed the jury would do what, was just; ami he had no doubt they would teach this bank and all other banks this lesson : that they were not to be allowed to make a solemn engagement and then to repudiate it. The case was a clear one—there was no evidence on the other side that could bo weighed in the balance for a moment with that of Wilson and Taine —and he would ask the jury to give the defendants such substantial damages as would really compensate them for tho great wrong that had been done them.
His Honor, after reviewing the evidence, said that if it were proved to their satisfaction that a special arrangement had been made respecting the No. 3 account, tho jury had further to consider what damages the defendants were entitled to recover, and they had to give such reasonable damages as in their opinion had been shown to have proceeded from the wrongful act of the bank in dishonoring the cheques on tho No. 3 account. They had to dismiss from their minds, so far us tho damages were concerned, the fact that the defendants would have to meet the wool cheques. The defendants admitted that tho bank was entitled to recover L 2,507 15s lid, which amount was arrived at by giving credit for the LOOS to tho ci edit of No. 3 account, so that if that amount had not been credited the claim would have been LOOS more. In assessing the damages the jury had to take all the circumstances into consideration —what kind of business the defendants had, what their financial position was, and how far the injury was the result of the wrongful act of the bank. They had to trace a direct connection between the wrongful act and the injury that had been sustained by the defendants ; they had to look at the matter broadly—to look at tho whole of the evidence—and if they thought the defendants had proved the agreement that was alleged they ought to give them such reasonable damages as they must suffer from the breach by the bank of the agreement. The jury retired at 5.40 p.m., and returned to Court at 0.30 with the following answers to the issues submitted to them Was it agreed between the plaintiff and the defendants, as alleged in the second paragraph of the defendants’ counter-claim, that “in the month or*Deccmber, 1888, the defendants should, for the purpose of making advances on wool left with them for sale by their customers, and of making payments for wool sold by them, open a special account at the Invercargill branch of the plaintiff’s bank, to be called the ‘ No. 3 account,’ and that all moneys which should from time to time be paid into that account by the defendants should bo applied by the plaintiff in payment of any cheques which might from time to time bo drawn on that account by tho defendants, and duly presented at the aforesaid branch of the plaintiff's bank, and that tho said moneys should bo applied for that purpose only V” Yes. What damages arc the defendants entitled to recover ?—L5,000. Mr Uaggitt said ho would have an application to mako, probably in Chambers, and ho would ask His Honor to withhold judgment until the application should bo formulated. His Honor: What is tho point?
Mr Haggitt said the fact of the matter was that there was a large amount—something like Ll,ooo—owing by the defendants to the bunk in respect of past due bills, in addition to the amount they had been sued for, and ho had to apply that execution be stayed until that action should be heard. Sir It. Stout said he had no doubt he should be able to arrange with his learned friend the matters in dispute. He would only ask now that His Honor should certify for second counsel and for extra days, and that the other costs should be referred to the Registrar in Dunedin. His Honor certified for second counsel and three extra days ; witnesses’ expenses and disbursements to be fixed by the Registrar. He would defer entering up judgment until the amount of the claim bad been settled. (Before His Honor Mr Justice Williams.) WINMILL AND'OTHERS V. GALLIE, A suit to teat the validity of the will of the late John Gallie. Mr Fraser appeared on behalf of the plaintiHV, and Mr F. R. Chapman for defendant, Mr Fraser, continuing his address, proceeded to refer to the law points arising in the case. He said ho would take the authorities in their chronological order and avoid, as far as possible, citing cases that were not in point. The first authority was Coombs’s case, decided in 1606 by the Star Chamber, in which the Judges hold that the testator must have judgment to discern and have a perfect memory, or the will was void. The case was old, but it was curiously valuable, and it was often referred to. Counsel cited a number of other authorities on the subject. His Honor asked if there were any cases in which there had been a delay in impeaching the will, Mr Fraser replied that there were such
eases, but there was a little to be said on both sides. In this case probate had never been taken out. It was not a case in which there was realty simply and solely—there was personalty ; and he had never heard it laid down what proportion of personalty and realty absolved tho testator. His Honor did not see that Mrs Gallic’s omission to take out probate was the smallest evidence of any desire to conceal anything, because she did what was as public—tho will was registered as against tho property. Mr Fraser said that as for the question of delay, His Honor had already indicated that he (Mr Fraser) was in a measure innocently to blame so far as ho was personally concerned. So far as his client’s case was concerned he was quite prepared that full allowance should bo given to the other side, and that all portions of the case that could be assumed in favor of the other side should be assumed in their favor. Counsel had not concluded his argument when the Court rose.
SUPREME COURT.- CIVIL SITTINGS., Evening Star, Issue 7939, 21 June 1889
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