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THE COURTS—TO-DAY., Issue 10455, 27 October 1897
(Before E. H. Carew, Esq., S.M.) Sarah Smith v. George Either.—Claim, £lO7 16s 10J. Mr Solomon with Mr James appeared for plaintiff, and Mr Macdonald for defendant. —ln this previously-heard case His Worship gave judgment as follows-
There has been a long lapse of time since the arrangement was entered into out of which this claim has arisen, and the conflict of evidence in respect to details may result from this, but it does not explain the wide difference there is as to the main facts. It seems to me that the transfers dated April £O, 1892, and those dated August 4, 1892, do not refer to the same transaction. Mr Smith says a few days—three or four at the most —after the first transfers were given to Mr Esther he brought them back, saying they would not do, and produced fresh ones for signature. He could give no explanation of the difference in dates from April to August, nor could he say what objection Mr Esther raised to the April transfers. Mr Esther says the first transaction respecting the shares was in April, that he then lent money, the shares were given to him by way of security, and when the debt was paid he gave up the transfers, and on the 4th August, ISS2, he made a fresh advance, and received the transfers bearing that date. That seems to me probably correct, and it is the oily explanation of the difference in the dates. I come now to the question of what was the arrangement entered into on the 4th August. Mr Esther swore that when he made the advance on that day it was agreed that the shares were to be transferred to his son, and Mr Smith was to have three months within which he could sell the shares, and if he did not sell or pay the sum advanced and charges they were to be absolutely his son’s property. Mr Smith swore that no buyer’s name was filled in the transfers, and that the shares were merely giyen by way ,of security, withoutany express limitation of the right to redeem. Questioned as to the price to be paid for the shares if not- redeemed, Mr Esther could say nothing definite, but that as far as his memory went it was the amount set out in the transfers. Mr Smith swore that no price was filled In the transfers, and that nothing was said about price. The transfers in respect to the transaction on April 20 1892, aw in evidence. In neither of them is the price or name of a transfereo filled in, and a memorandum signed by Mr Esther shows they were handed to him to sell the shares for payment of a bill. It is contended for the plaintiff that the transfer of August 4.1892, was given under similar terms. 'J ho' evidence goes to show that the shares at the lime would have been ample security for the advance, and there scums no reason why there should have been more stringent terms than in the transaction in April, 1892. I feel satisfied from the entry of the transaction in Mr Esther’s ledger that on the 4th August he did not look upon the transaction as a purchase of shares, for lie debits the account of Messrs Smith a id M’Gavin on that date “caab, etc., fqr shares, £176 Ds,” wnich, he has explained, was made np by a cheque for £lB7 4s, commission on loan 2J per cent., and interest for three months at 10 per cent, per annum, and the following entry is a debit of £29 11s, which, he explains, is the amount of the call, plus commission, he paid on the Taieri and Peninsula Company's shares. These are cleady entries pointing to a loan upon not to a purchase of shares. Mr Esther swore that near the end of September, 1892, he met Mr Smith and explained the state of accounts between them, and that it was then agreed that Mr Esther should send Mr Smith a cheque for £6 2s 6d to square the account. Mr Smith denies there was any such agreement, but he does not deny that he received a cheque for £6 2s 6d, and says ho cannot remember what it was for, but it did not concern the share transaction. This is certainly a weak spot in plaintiff’s ease, which I should llke-to see cleared up. It does not appear that Mr Esther ever gave Mr Smith a written statement of account. Mr Smith swore that he wrote asking for an account in August 7,1894, but Mr Esther swore that he did not believe he received the letter. It is not denied that Messrs Sievwright and James, acting on behalf of Mrs Smith, wrote in June and July, 1895, asking for a statement of account and for particulars of scrip they heard Mr Esther held belonging to Mis Smith. Mr Either says that he called on Mr Janies and distinctly refused to do anything in the matter. As Mr Esther, upon his own evidence, had never supplied a written statement of the account, I don’t know why he should have refused. I come now to Mr Esther’s letter of 19th August, 1897, . addressed to Mr Smith. He says: “You are entirely wrong in saying that 1 sold the shares in the Milk Company the other day. I sold them many years ago, when I was compelled, through being very hard up, to sell these with every other share I had.” “The man you refer to, the buyer, had to pay some £4O in calls, and has not got more than about 6 per cent, for his money.” Mr Esther has sworn now that he did not sell the shares many years ago, and it has been shown that the call on the shares was £2B 2s 6d, not £4O, and at the price written into the transfer the profit would have been between 11 and 12 per cent., not 6 per cent. The explanation Mr Esther has given is '.hat at the time he wrote the letter he had no documents before him to refer to. The case is an unsatisfactory one to decide, but on careful consideration of the whole evidence the impression on my mind is that the share scrip with blank transfers were given np to Mr Esther as security for an "advance, with, as Mr Smith says, the right to sell the shares and credit him with any increase over the advance the sale might produce, and that Mr Esther, when he wrote the letter of August 19 1897, intended to rely upon having sold the shares to his son; but 1 feel satisfied there was no reaTsale at the time. The only real sale of the Taieri and Peninsula Company’s shares was that to Mr Sinclair. The plaintiff is entitled to recover the difference between the money advanced, with charges and interest, £176 ss; cash paid, call and commission, £2911s ; interest, £35—£240165; and the sums received as dividends and realised by sale of the shares: dividends, £64 ISs; Farmers’ Agency shares sold for £95; Taieri and Peninsula shares sold for £lßo £339 18s. Judgment for £99 2s, with costs of court (£13125).
Mr Macdonald : I apply tp your Worship to stay execution for three weeks. The Judge will not be back till then.—Mr Solomon : What for?—Mr.Macdonald : There is the jurisdiction point which I mentioned during the hearing of the case His Worship : Very well, I will give three weeks to pay.
Gregg and Co. v. R. H. Pearpoint (Geraldine). —Claim, £3l 13s 4d on a dishonored promissory note', and for goods Mr W. C. MacGregor appeared for the plaintiff company, and Mr Solomon for defendant.—The defence was that in December, 1896, the defendant had signed a deed of assignment to his creditors, under which plaintiffs had proved, and that they were therefore debarred from now suing. The ease was not concluded when we went to Press.
THE COURTS—TO-DAY., Issue 10455, 27 October 1897
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