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SUPREME COURT.—CIVIL SITTINGS., Issue 7957, 12 July 1889
SUPREME COURT.—CIVIL SITTINGS.
Thursday, Judy 11. (Before His Honor Mr Justice Williams.) LLOYD V. VOLLEE. Suit for the specific performance of a contract to purchase shares. Sir E. Stout appeared for the plaintiff; and Mr Stanford for the defendant. William Lloyd, formerly coach proprietor, said that in 1887 he was the holder of 100 shares in the Equitable Insurance Association. He did not think them good property. He did until he read a letter in 1887. After that he did not. He called at the office of the company on the 14th April. On leaving, when just outside the door, a gentleman touched him on the shoulder and said: “ I hear you want to sell your shares, Lloyd.” Witness said: “I do, but who are you ?” He said he was accountant in the office, and having a pretty good billet would like to purchase a few shares. Witness asked him to make an offer. He said : “ I’ll give you a penny per share for them.” Witness said ; “ Are they gone as low as that ? What will the shareholders say when they hear that the head clerk offers a penny for Equitable shares?” He said; “ Never mind that; it will cost something for the transfer. Make it as low as you can, and I'll see if I can take them.” Witness said: “ Seeing that you are a clerk in the office, and want the shares, give me LI for them and an indemnity, and take them, and good luck to you.” Mr Field was with witness when the person came up to witness. The would-be purchaser said: “ Have you got the scrip ?" Witness replied in the negative. The man said: ‘‘ Go home and get it, and I’ll have them transferred at once from you to me.” Witness took the scrip to the office. Mr Tait, a clerk in the office, was there. Witness said: “Mr Tait, Mr Voller has purchased my shares for LI; he is going to transfer them to himself, and, as I don’t understand it, I want you to witness it. ” Mr Voller told witness to sign, saying: “ Come and sign your name here, Lloyd ; and when you have done so you are out of it.” Witness remarked that he did not understand this business, and asked if the paper was properly filled in. Both Mr Tait and Mr Voller said it was. Witness had never held shares before. As soon as witness had signed, Mr Voller handed him LI, and witness passed over the scrip. After this witness said “ What else has to be done in the matter?” They both said “There is nothing else to do; the transfer will remain in the office and come before the directors in the usual way.” Witness remarked: “ You appear to have everything ; I want something to show.” Mr Voller then gave witness a paper indemnifying him. That paper bad been mislaid. It said that Mr Voller took the shares, and was responsible for calls. Witness got no notice of calls until Christmas Eve, when be was apprised of a whole host of calls. He got no notice in July, 1887, or October, 1887, January, 1888, or September, 1888, but in December got a notice relating to all these calls. He had been in the office several times in the interval paying fire premiums. The transfer was never mentioned afterwards. When he got the notices cf calls he took them back, saying there must be some mistake. He saw Mr Wilson at the office, also Mr Simpson. About eighteen months after the sale witness saw Mr Voller, and said : “ Mr Voller, I’m told my name should be off the register, and yours on in place of it.” He replied “ Lloyd, you’ve no necessity to be putting yourself out. I bought your shares and gave you an indemnity, and if Mr Kirkcaldy, the general manager, was not now in Melbourne your name would be off the books, but as soon as he comes back it will be done,” Mr Simpson was present at the interview. Mr Voller never mentioned Mr Kirkcaldy’s name to witness, nor said he was buying for Kirkcaldy,
To Mr Stanford: When witness went to the office on the 14th April he saw Mr Kirkcaldy and offered him the shares. He replied that he had plenty already. Witness said he had no confidence in the company. When he saw Kirkcaldy at the office and offered to sell him bis shares, Kirkcaldy said he had plenty of his own, and did not want to purchase. Witness never wrote to the ‘ Daily Times ’ a different; account of "the transactions. When he wrote a letter to the ( Times ’ on the 9th February, he thought it was Tait who wrote out the transfer of shares. Tait was present, but it was Voller who filled up the transfer. On the 19th March there appeared in the ‘ Times ’ what was called “ Lloyd’s account,” at the foot of a letter from Kirkcaldy. Parts of that account were correct. Witness was under the impression that Voiler’s name was in the transfer when witness signed it. Voller told him, about twelve months after the transaction, that he(witness) was very lucky to have got out of the shares as be had had to pay two or three calls on them, The indemnity stated that Voller purchased the shares for Ll, and that he indemnified witness from all liability upon them in the future. Before Voller went away to Melbourne witness spoke to him, because he had been told by Mr Simpson, of the company’s office, that Voller had not paid Is on the shares. Simpson volunteered the Information, and told witness that Voller was going away, and that he had better see him before he went. Witness told Voller what he had been informed, and said he would bring an action against him. This occurred outside Robert Marks’s office in Dowling street. Voller said: “You can go to the devil, and do what you like,” and he then went into the Shades Hotel.
Mr Stanford: He told you to go to the devil, and you went to Sir Robert Stout ? (Laughter.) Sir R. Stout: No, he went to the Shades. —(Laughter.) Witness continued : Voller used to say to him “Have you got any notice of calls?” Witness replied “No,” and Voller said “ vVell, does that not show that you have nothing to do with the shares ? ” Witness had many a time gone to the office to see Voller, and ask why his name was not taken off the register. Witness commenced to go to the office with that object about a year after the sale. Voller would reply that witness’s name would come off In due time, and that witness had no right to be coming to the office like that. Witness never heard of Kirkcaldy in connection with the shares until he saw a letter of Voller’s in the 'Times’ stating that he had bought for Kirkcaldy. Charles H. Bailey, clerk in the company’s employ, said he got ready the call notices that were sent out in June, 1888. The name of William Lloyd was on the register of skateholders, and a call notice for him was made out in due course. Voller in checking over the list said he would take charge of that one. Voller put the notice in his breast pocket. Kirkcaldy was not, as far as witness knew, in the employ of the association at this time, Thomas Kerr, another clerk, gave similar evidence, and added that he had instructions from Voller not to send out the notices to Lloyd, There were no other shareholders whose call notices were not sent out. Kirkcaldy was not in the employ of the association at the time. Alexander Simpson, accountant in the company, said that Kirkcaldy left in March, 1888, and Voller then took charge. Kirkcaldy returned to Dunedin in September last. Witness saw Lloyd several times in the office, and had heard conversations
between him and Voiler. Lloyd called up once to know why his name was not removed from the register, and to the beat of witness a recollection Voller said he had bought the shares for Kirkcaldy. Lloyd said he knew nothing at all about Kirkcaldy. Voller told Lloyd that he need not be at all alarmed, as ho (Lloyd) had got his (Voter’s) letter. Some time elapsed, and LViyd called in again .to see Voller, but Voller was out, To Mr Stanford: When Kirkcaldy left, Mr C. E. Lloyd had charge for a couple of mouths before Voller took charge. Witness could not tell the highest price that had been given for Equitable shares since April, 1887. Some persons received money to take shares. He believed that in August, 18S7, shares were sold at 6d. lie heard Lloyd complain to Voller very much about tho transfer not having been completed, aud about bis name not having been removed from tho register. Voller stated he had bought for Kirkcaldy, and Lloyd replied that he did not recognise Kirkcaldy. _ Witness could not tell where Lloyd’s scrip and transfer were kept until January, 1888, when Voller gave them to witness to keep, saying they belonged to Kirkcaldy. Connor’s scrip and transfer were kept in a parcel of Kirkcaldy’s. Andrew Maxwell, manager of the company, stated that he remembered seeing the transfer (produced). It came out from a drawer in a safe in the office. The key of the drawer was handed to witness by Voller, who had then left the employ of the association. Charles Field deposed that he was with Lloyd at the Equitable Insurance Office on a day in April, 1887, where they saw Kirkcaldy. After they came out Voller came up and asked Lloyd what he wanted for his shares. Voller and Lloyd then turned to go to the office, and witness turned to go in the opposite direction, so that he heard nothing more.
For the defence, Frederick Ludwig Voller, insurance manager, deposed that on the I•1th Aoril, 1887, Lloyd came to the Equitable office and asked for Kirkcaldy. Witness told Lloyd that Kirkcaldy would not see him. Lloyd and witness went into a private room off the office, and Lloyd hid out a long list of grievances against the company, and said the only thing he wished to do was to get rid of his shares. After Lloyd went out witness saw Kirkcaldy, and, in consequence of what took place between them, he rushed into the street, and, calling Lloyd back, asked what price he would take for his shares. Witness said he was authorised to give LI for them, and Lloyd said he would take the pound. Witness told him to bring his scrip up in the afternoon, and he did so. Lloyd signed the transfer in which witness had filled in his (Lloyd’s) name on the top line. When he signed that document Lloyd asked if that was all he had to do, and witness replied: “ Yes; the buyer’s name will be filled in afterwards.” Witness gave Lloyd LI out of his own pocket. Nothing passed at that interview to lead Lloyd to believe that witness was the buyer. Witness gave Lloyd a letter to the effect that his name would be taken off the register when the transfer went through. Witness got the pound back from Simpson, under instructions from Kirkcaldy Kirkcaldy and he went up to tho desk together, and Simpson took the pound out of the cash box. This would be on the day after the transfer was signed by Lloyd. Kirkcaldy handed the transfer to Simpson. Witness saw him do it. He next saw the transfer when, together with Connor’s transfer, it was handed to him in his official capacity, some time in 1888, by Simpson. Witness was then in charge of the office. He put Lloyd’s transfer in the drawer of the safe that was set apart for putting such documents in. The transfer remained in that drawer until witness handed the key to Mr Maxwell. The drawer was not a private drawer, but was an office drawer, of which witness held the key as an officer of the company. In August, 1887, witness ■aw Lloyd at the counter in the office. He came to inquire if his name had been removed from the share register. Witness produced the register, and showed that his name had not been removed. Lloyd asked why, and witness replied : “ Well, you know, I am not the principal; Kirkcaldy is the principal, and he has not yet put the transfer through for registration.” Lloyd grumbled that so much time had passed without the transfer being registered, and witness said that he had very little doubt that Kirkcaldy would shortly have the transfer completed. The next time witness had any conversation with Lloyd was in February, 1883, Simpson was present at that conversation. Lloyd was rather excited, and asked why his name had not been taken off the register of shares. Witness told him that Kirkcaldy had not registered the transfer, and Lloyd asked what he was to do. Witness said he would be very glad to see Lloyd get his name off the register; but there was only one way in which it could be done, and that was by Kirkcaldy doing his duty in the matter. Witness said he had nothing to do in the matter, as he had neither shares, »crip, nor transfer. Lloyd said he would sue, and witness replied: “Very well; vouhave your remedy against Kirkcaldy for non-completion of the contract ” Lloyd spoke to witness on other occasions about the transfer, and witness always referred him to Kirkcaldy, The last-named was present on one occasion, but kept silent. After witness returned from Australia, Lloyd said to him that he knew Kirkcaldy was the purchaser of the shares, but he did not know if he could get anything out of him. Lloyd added that witness was being made a victim of. The value of Equitable shares fluctuated. Witness had known 6J to be given by shareholders to get rid of shares, and he had known as much as fid and Is paid for shares.
To Sir R, Stout: Witness would be surprised to learn that Mr Tait said the shares were purchased by witness from Lloyd, for ho bad a letter himself from Tait stating that he (Tait) did not know who purchased the shares. The letter that witness gave Lloyd was not a letter of indemnity, Lloyd wanted something to show that he had sold the shares. Witness did not disclose Kirkcaldy’s name on the day that the transaction took place. The reason why witness did not put Kirkcaldy’s name in the transfer was that Kirkcaldy specially asked him not to fill in his name. Witness had not any shares at that time, but he had purchased an interest in some shares since. He would positively swear that on the day the transaction took place between Lloyd and Field he did not see Kirkcaldy, and he would swear it even if the three swore to the contrary. He admitted telling Lloyd that the shares could not be transferred until Kirkcaldy came back from Melbourne ; but he referred to Kirkcaldy as buyer of the shares, and not as general manager, Sir R. Stout obtained leave to call rebut ting evidence. William Cargill Kirkcaldy (formerly manager of the Equitable Insurance Association) deposed that he remembered Lloyd and Field calling on him early in April, 1887. He did not in that month instruct Voller to purchase shares for him, and Voller did not inform him until a year and nine months afterwards that he had purchased shares for him. Witness never paid LI, nor authorised anyone to pay LI, for the shares. To Mr Stanford : The first time he saw the transfer was in March last. ■ He did not think he had ever seen Connor’s transfer. Counsel on either side having addressed the Court, His Honor said : The question really is which side is to be believed. It is admitted on both sides that Mr Voller entered into a contract for the purchase of these shares with Mr Lloyd. It is admitted that Mr Voller did not then disclose whom he was acting for. That being so, if Mr Voller was in fact acting for an undisclosed principal, Mr j Voller is liable to perform the contract him- * self, unless he can show who his principal was, and that Mr Lloyd has elected to treat that principal as liable on the contract. Mr Voller says that Mr Kirkcaldy was the principal, and that Mr Lloyd afterwards elected to treat Mr Kirkcaldy as liable on the contract, and not Mr Voller. Mr Kirkcaldy absolutely denies that he had anything to do with the contract, and Mr Lloyd also denies that he ever had anything to do with Mr Kirkcaldy. Now it is certa’n that if an agent enters into a contract for an undisclosed principal, the burden of proving who the principal is, and of
proving that the person with whom he entered into the contract lias elected to hold that principal liable, and not the agent, lies on the person who alleges that he acted as agent only. It is impossible to say that Mr Voller has succeeded in proving that he was acting for Mr Kirkcaldy at all, much less that Mr Lloyd has elected to treat Mr Kirkcaldy as liable on the contract. The weight of evidence is distinctly in favor of the story given by the plaintiff, and I think I am bound to hold, and I think any jury would hold, that the story given by the plaintiff ia a substantially correct account of what took place. It i.s suggested, however, even if that be ay, that the provisions of the Stamp Act will prevent the Court from giving relief, and, further, that the plaintiff had been guilty of such default as would disentitle him to relief. So far as tho Stamp Act goes, I have already expressed tho opinion in the course of argument that, although the transfer signed by the plaintiff is void, and although possibly the plaintiff has rendered himself liable to a penalty for signing it, yet as his right against the defendant is not founded upon the transfer, the consideration that the transfer is void will not affect the plaintiff's right. The action against the defendant is in respect of a paro tontraet for the sale of shares. If the defendant has established, as I think he has established, such parol contract, the fact that he has executed a void instrument os part performance of such parol contract cannot affect his right to have the original parol contract, which is a perfectly valid contract at law, carried into effect. Nor do I think there has been such default on the plaintiff’s part as wouM disentitle him to relief. No doubt the plaintiff knew there was something wrong some months ago ; but if his account be true he was put off from time to time by the defendant, and he was not aware until very recently indeed that the transfer, which ho says he believed to be a valid transfer, was an altogether invalid transfer, nor was he aware till very recently that the defendant had declined altogether to be bound by the contract. Moreover, as I mentioned in the course of the argument, the contract is something more than an executory contract—the plaintiff had received consideration money for the shares. When there is a sale, no doubt it is the duty of the I purchaser to prepare and to tender for execution to the seller a valid instrument of transfer. This is what the plaintiff says the , defendant has not done, and the plaintiff now asks that the defendant may do that and may carry out the verbal contract for the sale of shares which was entered into in April, 1887. I think the plaintiff has succeeded ia showing his right to the decree which the statement of claim asks for. The plaintiff will be entitled to a decree a,s prayed, with coats on the lowest scale ; disbursements and witnesses’ expenses to be fixed by the Registrar,
SUPREME COURT.—CIVIL SITTINGS., Issue 7957, 12 July 1889
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