STATUTE BARRED

Hawera Star, Volume XLIX, 5 December 1929, Page 7

STATUTE BARRED

DEFENCE TO DEBT CLAIM ITEMS RULED OUT OVER SIX YEAR. TERM. Defence under the -Statute of Limitations, which confines to at period of six years the right of action on ai simple contract- debt, was raised successfully before Air J. H. Salmon, S.M., in the Hawera Court to-day, when finality was- reached on the claim preferred’ bv R. H. Lsece and Cb., motor agents, of Hawera, for the recovery of £7 lalileged l to -be due by Faina and Glee-son for goods supplied principally during the year 1922. -. Considerable- evidence was beard m respect of the claim at hast week s •sifting of the oourt when, a® already reported, the proceedings were adjourned to allow Mrs B. A. Fama, who had been in partnership with Claude Albert Gleeson in a grocery business, 'to be joined as defendant to the action in piae© of her husband, whom, the court held bad had no connection with the business and had been wrongly sued. Mr J. Foy -appeared for plaintiff company and Mr T. A. Kinmont for defendants. . George Duncan, district manager or the National Insurance Company, gave evidence that £8 Os 3d shown on the ledger account against Faina and 1 Gleeson was in respect of fine cover and indemnity on plant and employees at the Turuturu store. The premium had not been paid by Fama and! Gleeson, but by Leec© and Co. It was found that insurance had hem taken out in the Norwich Union Office, and in September. 1923, the whole 'premium of £8 Os 3d waisi refunded to Deeoe and 00, The debit and credit entries in tire* ledigeT didl not, thoreifoioi, affect the actual amount said to be owing hv Fama and Gleeson. Adam Pickering, who was called by defendant’s counsel, said in evidence thiait in 1922 be purchased the grocery business of Mrs Fama and Gleeson He dealt with them before the purchase was made, hut coiuldl not remember wh ether at the time of the purchase he owed anything to Fama and Cfleeson. INCIDENT FORGOTTEN. “I don’t remember the incident re- : ported in the paper last week. I think we were square,” said witness in referring to evidence given at the earlier hearing to the effect that witness arranged with Mrs Fama and Gleeson to settle liabilities amounting to £7 2s 6d or £7 12s 6d of Fama and Gleeson to Pickering, Sagar and Leece as a contra in respect of a sum personally owing to the store by witness. He could not remember the date on which Pickering, Sagar and Leece had dissolved partnership, but recollected that it was some little time after the agreement of dissolution was signed before he received the cash due to him under the settlement. The- magistrate: Three witnesses have told the court that, at an interview concerning the purchase of the store, mention was made of an amount owing by Airs Fama and Gleeson to Pickering, Sagar and Leece -and an amount owrng by you to Fama and Gleeson and a- settlement by contra. Is it possibv* the arrangement was made and that you have forgotten it? Witness: I cannot bring the matter to. mind, though it is quite possible. ROOKS NOT AVAILABLE. Defendant Gleeson produced a copy of an agreement made with Pickering in respect of the -sale of the grocery business. He explained that it did hot include items covering the insurance policy premium on tile stock and fittings and an amount owing by Mr Pickering. Cross-examining witness concerning the insurance, Mr Foy asked if he could produce the partnership hooks. Witness: They were handed to Mi’ Pickering. All* Kinmont raised as the principal defence the contention that the account was statute barred. Referring to the payment of £5 made in 1925, lie stated that it had been paid by mistake, and without the authority of defendants, by Mr Faina,, wlro was" taking action for its recovery. Counsel also submitted as a -second defence that at the time of the purchase of the grocery business any liability to Pickering, Sagar and Leece had. been settled with Pickering. Mr Foy contended that notifications of the debt had been given on several occasions. It was emphatically denied that Air Fama, as was contended by the defence, had notified plaintiff company that the payment of £5 had been made in error. Referring to the contention that any liability had been -settled by contra with Air Pickering, counsel stated that Air Pickering, at the time of the store purchase, had no authority to settle matters for Pickering, Sagar and Leece, all accounts owing to- whom became payable to Air Leece when the partnership was dissolved. MAGISTRATE’S SUAIMARY.

The magistrate said there was no doubt that in 1922 an amount was owing by defendants, Mrs Fama. and Gleeson, to Pickering, Sagar and Leece, who dissolved partnership on July 31. Fifteen days later Pickering macle arrangements to purchase the business of Mrs Fama and Gleeson. As it was probable that Pickering had not then "been paid, it would be likely that a proposal would be made for settlement by contra of any small amounts owing between the respective firms. He was prepared to accent the evidence of Gleeson and Mr and Mrs Fama that such an arrangement for a small amount was made.

Dealing with the payment of £5 made in 1922 by Mr" Fama. which, it was claimed, revived the right of action, the magistrate said he must hold on the evidence given that Mr Fama was not acting with the authority of defendants. Mrs Fama. and Gleeson. It was probable that Mr Fama, in making the payment, was acting in the. manner anv honourable man might lve expected to do when informed that a sum of money was owing by his wife. The authorities all showed that before payment by a husband could be held to he pavment by an agent in respect of a wife’s debt, there must he some evidence that the husband had taken some active part in the business of the wife, continued the magistrate. There was nothing in the present case to connect Mr Fama with the business. Reviewing the statement of account, the magistrate held that the items were statute barred with the exception of 6s fid for a tyre lever shown as supplied to Gleeson in 1925. In the face of the business dockets he could not accept Gleeson’s statement that he paid cash for the tyre lever. Judgment for 6s 9d and costs £2 was given in favour of plaintiff companv against Gleeson. while judgment against plaintiff, with £1 5s costs, was given in favour of Mrs Fama, nod against plaintiff, with £2 Is costs, in favour of Mr Fama, who had been wrongly sued in the first action.