Finality Reached

Manawatu Times, Volume LV, Issue 7409, 17 December 1930, Page 3

Finality Reached

IN EQUITABLE ASSIGNMENT CASE Finality was reached in the Fcilding Magistrate’s Court \Jfcsterday in the civil proceedings in which considerable legal argument was heard as to whether a particular document constituted an cquitablo assignment. The case originated in an action brought by W. Rnyworth and Co., Ltd., against A. P. Calvert, of Coylton, a claim for £33 18/7 for which plaintiff obtained judgment on September 9 last. Early last month an interlocutory attachment order was heard, under which proceedings Mr. J. M. Gordon, solicitor, of Palmerston North, was cited as subdebtor, sinco the defendant, Mrs. Calvert, had assigned her monthly salary to this assignee. On October 31 Mr. Gordon was served with tho attachment process, but ho produced to the Court an order dated October 25 in favour of one E. E. Martin, of Auckland, and Mr. Gordon contended that that order was an equitable assignment and that it must take precedence to these proceedings. Counsel for plaintiff, Mr. J. Graham, quoted authority to support his contention that the order fell short, of being an equitable assignment in that it was altogether indefinite and did not fulfil the conditions necessary to render it acceptable as an equitable assignment. Mr. Gordon argued that the order did amount to an equitable assignment and submitted that he was entitled to act upon it. The Magistrate after hearing considerable legal argument gave judgment for plaintiff, who subsequently moved for an order absolute.

When the application came on for hearing on December 2, Mr. P. E. Baldwin, on behalf of E. E. Martin, of Auckland, applied for an adjjournment t,o enable her evidence to be taken at the northern city. Counsel for plaintiff opposed this application and protested at tho prolonging of the action. Mr. Baldwin contended that the Court, was entitled, before coming to ft decision in the matter, to hear all the evidence, and he produced a telegram from Miss Martin in which she said that she had beeu advised by the defendant (Mrs. Calvert) that her (Miss Martin’s) interests were being protected by Mr. .Gordon. Counsel also went into the law of equitable assignments and submitted that the order given by Mrs. Calvert to Mr, Gordon was an equitable assignment. After Air. Graham had answered the argument as to the legal merits of the instruction given by Mrs. Calvert to her solicitor, Mr. Gordon, the Magistrate decided to grant the adjournment to enable Miss Martin’s evidence to be taken.

The evidence of Miss Martin, school teacher, of Auckland, which was taken in that city, was to the effect that Mrs. Calvert borrowed £25 from her in September last ,and in October Miss Martin received a post-dated cheque in settlement of the debt. The cheque was banked on the day it was due, but. it was dishonoured. Mrs. Calvert had written advising Miss Martin that, her interests would be protected by Mr. Gordon, who had been instructed to pay the £25 out of Mrs. Calvert’s salary from the Education Board. This letter was received before October 31, either on October 28 or 29.

Mr. Baldwin, who read the evidence to the Court, .submitted that that evidence was conclusive on the two points, namely, that the fact of a direction to pay the money of Mrs. Calvert’s in Mi. Gordon’s hands was communicated to Miss Martin by Mrs. Calvert, and further, that the date Mrs. Calvert posted this direction was prior to October 31. Those were the two points on which counsel was called upon to satisfy the Court. Counsel quoted authority to support his contention that where A directs B, who is holding money on account of A, to pay the money to C, and that direction is communicated as between A and C, then an equitable assignment. is established. Mr. Baldwin then called the debtor, Mrs. Calvert, who stated that she was a school teacher at Colyton. She recalled having obtained a loan of £25 from Miss Martin in September last, on the understanding that she paid Miss Martin bach with her October salary. Somewhere near the end of October debtor sent a cheque to Miss Martin, and after this, thought it would bo better for Mr. Gordon to handle her money. She therefore interviewed Mr. Gordon on October 25 ,on which date she signed the direction to Mr. Gordon authorising him to pay Miss Martin. After this debtor wrote advising Miss Martin that she had made other arrangements regarding the cheque, and that Mr. Gordon would pay her. She explained the position to Miss Martin because of the difficulty over the dishonoured cheque. This letter was written between October 25 and October 27. To Mr. Graham:' Debtor intended that the money borrowed should be repaid out of her October salary. The October salary was not paid until October 33. The Teason she gave a cheque post-dated to October 25 was because she expected a sum of £4O owing to her on that date. She was not relying on the £4O coming in.

Counsel: Why then date your cheque for October 25 when you were relying on your salary cheque of October 31? Debtor: Miss Martin would have held the cheque until October 3L The £4O did not come in?—No. And Miss Martin presented your cheque? —I sent Miss Martin a telegram before I saw Mr. Gordon on October 25. What did you say in the telegram? “Please hold cheque.” Questioned as to when she scut the telegram, debtor was unable to say definitely. Her explanation for post-dat-ing the cheque to October 25 instead of October 31 was that she did not think it would mako any difference. , Who was the £4O to come from?—l refuse to answer. • In reply to tho Magistrate, counsel s?ud that he was very suspicious of the whole transaction regarding tho telegram and the £4O. : Continuing, debtor was unable to say what her monthly - salary was; it-was

£25 odd. She did not think anything about the odd shillings when she instructed Mr. Gordon to pay Miss Martin her salary cheque. After she had given her evidence in the Court on the first occasion she wrote to Miss Martin saying she was sorry about the holding up of the money. Witness could not remember what else she said or whether she said to Miss Martin that the case depended upon Miss Martin remembering the communication about the £25. Mr. Baldwin protested against this last question, as it suggested hire. Calvert counselling Miss Martin to commit perjury. The Magistrate did not think such was the case, and Mr. Graham pointod out that Mrs. Calvert’s evidence was so divergent from that given by Miss Martin in Auckland that he was entitled to test the credibility of the witness. “Of course you are,” said the Magistrate. Later, his Worship that said he wanted to get at the facts. Debtor then went, on to say that she could not now remember whether she wrote to Miss Martin at all. Mr. Graham submitted that the further evidence before the Court did not carry the case any further than the period when tho telegram was received from Miss Martin. The law on the matter was clear; the order before the Court must bo looked at in all the circumstances. There was nothing in the order to make its meaning plain and clear; it did not show that it referred specifically to the October salary cheque. The evidence was most unsatisfactory indeed. It was peculiar that the communications wfiiich passed between tho debtor and Miss Martin had not been produced —all tho letters had been burnt. As far as Miss Martin s evidence was concerned, her statement as to the receipt of a communication that slio was to be protected in some way or other by Mr. Gordon did not amount to the communication required to bring it within the cases cited by Mr. Baldwin. Her evidence was altogether indefinite; it did not enable her to recover from Mr. Gordon, and this, surely, was the test of every equitable assignment. “This matter, although complicated, is, I think, clear,” said his Worship in summing up. On the taking of the evidence of the sub-debtor, Mr. Gordon, there was no evidence of Mrs. Calvert’s instruction having been communicated to Miss Martin, certain fu.tber evidence had come before the Court. He wished to make it clear that he was not favourably impressed with the evidence of Mrs. Calvert. In spite of that, his Worship felt that if he discredited the evidence of both Mrs. Calvert and Miss Martin on the vital point of communication between Mrs. Calvert and Miss Martin, ho would be carrying the matter too far. Reviewing Miss Martin’s evidence on the issue of communication and comparing >Jiis with tho order given by Mrs. Calvert to Mr. Gordon, his Worship was satisfied that it must be held that Miss Martin had been advised. Communication, in his Worship’s opinion, had been proved, and the order absolute would accordingly be refused. Costs against the judgment creditor in favour of Miss Martin amounting to £3 14/6 were allowed. No costs were granted to the debtor or sub-dobtor.