DISHONORED PROMISSORY NOTE

Evening Star, Issue 19795, 20 February 1928, Page 5

DISHONORED PROMISSORY NOTE

SUPREME COURT JUDGMENT VERDICT FOR PLAINTIFF Judgment was given by His Honor Mr Justice Sim this morning in the case in which Ernest 0. Nees claimed from Charles Botting the sum of £550, the amount of a promissory note and interest. The caee was heard last week, Mr J. S. Sinclair appearing for the plaintiff and Mr H. E. Barrowclough for the defendant.

His Honor said the promissory note dated June 2, 1927, and the promise was to pay the sum of £550 on December 2, 1927, certain at the Commercial Bank of Australia, Ltd., Dunedin. Tk*» defendant swore that when ho signed his name on this document it was unstamped, and was a blank, except for the printed matter on the face of it. This evidence was contradicted by Francis, who was called by the defendant as a witness. Francis swore that the promissory note had been completed and signed by himself when the defendant endorsed it. The plaintiff also swore that the' promissory note was completed, and signed by Francis in the plaintiff’s office, that Francis took it away for the purpose of getting it endorsed by the defendant, and later in the day returned with it bearing the defendant’s endorsement. He admitted that he had not looked at the back of the document before Francis took it away, and could not swear positively that it did not bear the defendant’s endorsement when Francis first produced it. It is unlikely that the defendant would have endorsed the document if it had been blank, and it was absurd to suppose that Francis would have taken it away from the plaintiff’s office to obtain the defendant’s endorsement if he had obtained it already. His Honor accepted the evidence of the plaintiff and Francis on the subject, and found that the document was a promissory note when the defendant endorsed it. Ho quoted an authority for holding that the plaintiff was entitled to complete the promissory note by endorsing it as he did with the addition of the words ‘‘ without recourse above the defendant’s endorsement. The promissory note was presented at the Commercial" Bank for payment on December 2, and was dishonored. On the evening of that day the plaintiff posted to the defendant a letter, winch was received on the following day. ihe question to be determined was whether or not this letter was a sufficient notice of dishonor for the purposes of EiVtion 49 of the Bills of Exchange act, 1903. The letter was as follows: Dunedin, December 2, 1927. Charles Dotting, esq 48 Botha street, lainui, Dunedin. Dear Sir,—Wc hereby demand irom you the .sum of £550, being amount owing on a certain promissory noted dated Juno 2, 1927, made by F. B. Francis and endorsed by you to Commercial Investment and Discount Company oi order, and of which wo arc the holders.—Yours faithfully investment and Discount Company (it. O, Noes, manager).” His Honor went on to say that section 49 ol the Act enacts that the notice of dishonor may bo irivcn in writing or by personal com* munication, and may be given m any terms sufficient to identify the bill and intimating that the bill had been dishonored by non-acceptance or non-pay - ment. The letter in the present case identified the promissory note, and (lie only question was whether or not it intimated to the defendant that the promissory note had been dishonor ?d. Mr Sinclair relied on tho word ' owing ” as sufficient to convey such an intimation. Mr Barrowclough contended that the letter did not convey such an intimation according to the law as laid down by the Douse of Lords. ~ After quoting numerous oases, ms Honor went on to say that in the present case the word “ unpaid ” was not used. The word used was “ owing.” Tho letter was posted to the defendant on the day on which the promissory note became due, and was dishonored on presentation. Tim amount of tno note could bo owing by the defendant to the plaintiff only if the note, had been duly presented at Hie bank for payment on the due date and nad been dishonored. The statement in the letter that the amount ol the note was owing by tho defendant to the plaintiff, with a demand for payment thereof, would mean, by reasonable intendment, to any man of business Iliac the note bad been presented in T be regular course and bad been dishonored. That was how, in His Honor’s opinion, it ought to be construed. The letter, therefore, was a sufficient notice of dishonor, and the plaintiff was entitled to judgment. Judgment accordingly for plaintiff for £550, with interest thereon at the rale of £6 per centum per annum from December 2, 1927, to date of judgment. Tho plaintiff was allowed costs .according to scale on the amount recovered, with disbursements for fees of court and witnesses’ expenses to be fixed by tho registrar.