BANK SUED

Hawera Star, Volume XLIX, 28 August 1929, Page 6

BANK SUED

PAYMENT OF A CHEQUE. VERDICT FOR DEFENDANTS. A PATENT MEDICINE VENTURE Before Air J. H. Salmon, S.M., at. tile Uaiwem Magistrate’s Court yesterday afternoon a case was hoard wherein Maria. Moore, of Hawera, married woman, proceeded against the Bank ol Australasia claiming £lll 16s 2d for an alleged wrongful payment of a cheque. Tfie statement of claim set out that plaintiff for some years prior to 1925 carried on business in co-partnership with Laurie Andrew Taylor, of Hawera, solicitor, a.s a manufacturer and seller of patent medicine under the style of “Moore’s Vivific Company.” On August 23, 1923, a cheque for £lll 16s 2d was drawn by the company and made payable t 0 plaintiff, but at some time subsequent to the drawing of tlie cheque, the words “or bearer” Were inserted by tlie said Laurie Andrew Taylor and initialled by him, but not by plaintiff. The cheque was. duly presented for payment at Hawera by some person of persons unknown, and defendants, it was alleged, carelessly and negligently paid the amount without the knowledge or consent of plaintiff o.r having due regard to the fact that the cheque was not initialled or endorsed by plaintiff ; wherefore plaintiff claimed] the amount of the cheque. I

’ Mr T. A. Kinmout appeared for plaiin- ' tiff and Air A. K. North for defendants. Plaintiff, on oath, said that in 1923 she approached Air Taylor with a view to borrowing money to re-establish the patent medicine already referred to on the market. Air Taylor had lent her £llO on behalf of a client named F'orrest, but later, she alleged, she learned that “Forrest” was. Air Taylor. The latter later suggested that they should go into partnership, he providing all the money that was necessary and she attend to the” product and marketing. Ai r Taylor had at this stage given her a release, of a bill-of-saile over her furniture, which she had given him as i security for the first loan. It was I arranged that they should share equally in the profits. An account had been| ■opened at the Bank of Australasia,, cheques to be signed by herself and “G. E. Forrest.” The partnership lasted only about twelve months. In 19 witness sold her house property. Air Taylor acting, for her. In a statement sent to her he debited her with the amount erf the first loan, £llO, and a subsequent loan of £SO. She contended that the first sum had been paid by the cheque that was at present disputed. At the time she Was ill and she put the statement away. When her) health was restored three years later, on going into the matter, she questioned Air Taylor, but did not get satisfaction from him. On their going to the bank witness was shown that tlie cheque had been cashed, but she denied! that she had received the money. On the cheque 'being turned up it was found that it wa, s not endorsed. This was the first time that she had seen it. It had been her practice to sign blank cheques when asked by Mr Taylor on the understanding that they would be used for the business only. Her discovery was made in 1927, and- the bank manager, she alleged, asked her not to go to a solicitor. On finding out how she had been “robbed”—Air North objected to this expression—she again became ill! and remained so for a Jong time. With the consent of her doctor she got out of bed and went to see a solicitor. He advised lier to drop the matter. Witness swore tbat she had. never received payment of the cheque. I

Crows- exam: nee, witness admitted that the loans obtained .from Mr Taylor in April, 1923, wore before they entered into partnership. The amount was £1 80, tout £25 O'f tin's was paid back before the partnership agreement wa-s entered into. She eouild not say whether the person who had cashed the cheque had credited her with what she

owed on the ibill-of-saile. In April, 1925, she had a “clean-up’with Mr Taylor, and he then gave her a cheque for £137 os. She characterised as a. forgery a memorandum of mortgage put in purporting to be signed by her. She admitted: that a firm of solicitors whom she had coin missioned, to go into the matter in 1927 had informed her that after seeing the bank’s books and Mr 'Taylor's they were satisfied that everything was an order. She admitted that Mr f Taylor had offered to pay the: charges of any accountant she nominated to investigate the matter. Subpoenaed by Mr Kinmont, Mr j Taylor, denied that- George Edward Forrest was non-existent. He was a cable operator, and at present was in Sydney, and witness lias held a power of attorney for him since, 1918. "Witness personally lost- £7OO in partnership with Mrs Moore. Air Kinmont: You swear on oath that George Edward Forrest is a. client of yours and is not yourself?

AVitness, in reply, nut in the- power of attorney given him by Forrest, and at a. later stage a. bulky pile of correspondence. He had credited the disputed cheque to plaintiff in Forrest’s account. He did not remember the circumstances under which the cheque had been initialled by him six years ago. He admitted that he had refused to permit Mr Kinmont to go through his• books, this being because' Air O’Dea and Mr Horner had already separately investigated the matter, and because of All* Kimnont’s attitude.

To' Air North: AVitness shouldered the Vicific loss himself; none had been put on to Forrest. The disputed cheque had been banked the following its being drawn out. He* could not remember why plaintiff’s initials had not been obtained to the alteration.

Dr. A. M. Young deposed l that he had attended plaintiff fairly frequently in 1924, the immediate cause of his attendance being acute tonsilitis, and following that acute dyspepsia: and | nerve trouble. He had attended her also in 1925. It was quite possible that, owing to her nervous trouble, she had been unable to concentrate on

business matters for three yearn. Mr North called no evidence. Plaintiff, he said, had used l her rights in bringing this action to make untrue statements about Mr Taylor. Still, the speaker was not, concerned with that; he was there to defend the bank. Although the cheque had contained a technical inaccuracy, it had come into Mr Taylor’s hands for a lawful purpose, and under the Bills of Exchange Act plaintiff could l have been compelled by the courts to endorse it. She had sworn that a memorandum of a mortgage was a forgery, and vet three years later she had carried it into effect. It was true that the, hank, at a time when the manager was on holiday, had accepted a cheque that was not strictly in order. ‘ If the cheque had come into Mr Taylor’s hands unlawfully—and lie thought that the reverse had been proved-^-dt

was a void cheque, and the plaintiff could secure only nominal damages. Mr Kinmont objected to Mr North having criticised plaintiff’s- truthfulness. Plaintiff claimed that at- no time had she received satisfaction for the cheque. Owing to her health, she had not previously been able to get the matter thoroughly investigated. He quoted .authority to show that where- there was more than one drawer to a cheque, .an alteration had to be initialled by all; otherwise the bank paid out at its own risk.

“I am satisfied.’’ said his Worship, “that plaintiff can’t- recover againstthe bank, hut I want to look into the matter with a view to considering costs. The technical error on the partof the hank may deprive it of the right to costs. I will take time to look into the. matter. ’’