A PROMISSORY NOTE

Nelson Evening Mail, Volume LXXII, 27 February 1939, Page 8

A PROMISSORY NOTE

ALLEGED MISREPRESENTATION ABOUT INSURANCE JUDGMENT FOR PLAINTIFF A dispute over a promissory not* v.*as heard in the Magistrate's Court thil morning, when defendant alleged that he had been induced to take out two insurance policies on the misrepresent tat ions of plaintiffs agent. The plaintiff was James Hunter (Mr J. R. Kerr) and the defendant George Bothwell (Mr W. V. R. Fletcher). The amount concerned was £8 Os 6d. James Hunter, the plaintiff, produced a promissory note signed by the defendant. The amount of the note wan still owing and payment had been refused. To Mr Fletcher witness said that the money was raised on an insurance premium. His agent, Mr Murdoch, did the business. Witness was not present when the insurance proposals were signed but he received his commission on the deal. He was not present when the promissory note was signed. ft was obtained because it was inconvenient to pay cash at the time. He would not have received any commission if the premium had not gone forward with the proposal, and it was in his interests to see that the premium was sent. This procedure was adopted in several cases. The premium was in respect of a life insurance and an accident insurance. He had not made representations to the men at the camp where defendant was that the life insurance had to l>e taken out to get the accident insurance. He had left his agent. Mr Murdoch, to interview the men. He did not think it likely that Mr Murdoch would represent that life insurances had to be taken out to get the accident insurance. Mr Murdoch had told him that when he went out to collect the money from Mr Bothwell the latter said he repudiated the contract. Witness fid r.ot know when the policy had arrived from the head office. Out of consideration for Mr Bothwell he had not taken steps before January to collect on the promissory note. Re-examined by Mr Kerr witness sa d that the amount of the promissory note was simply a loan to allow Bothwell to pay the premium. Mr Fletcher said that Mr Murdoch had induced defendant to take out the insurance on misrepresentations. Bothwell had withdrawn his application and advised Mr Hunter so later. The Magistrate said he was not sure that defendant’s remedy was not against the company. In evidence defendant said he told Mr Murdoch when he approached him. that he wanted to take out an accident policy. He was told he would have to take out a life insurance also. He was promised £2 a week on the accident policy. Mr Murdoch told him later J that he could not give him £2 a week but not to say anything about it an! he would give him £1 out of his own pocket. Witness refused to have anything to do with the policies. At that stage he had not heard anything from the insurance company. He received a receipt from Mr Murdoch on 23rd March and signed the promissory note on the same day. When he heard from the company he sent the policy back immediately and he did not know where it was now. He took out a life policy because the agent would not give a sickness and acciderjt policy without :t. To Mr Kerr witness said that he had complained to the company and had received two replies. Counsel pointed out that the replies were dated February 1939, after the promissory note became due. Witness said that he had written earlier but had not received replies. Counsel said he would leave the court to judge the truth of that. Re-examined defendant said that when he repudiated the policies he had not heard from the company. Seddon John Taylor, said he was present at the Wangamoa camp when Messrs Murdoch and Hunter came out to see Bothwell. Mr Murdoch promised defendant £2 a week on the accident policy. He also said the accident policy could not be taken out without the endowment policy. When the agent came out again defendant said he did not want to have anything to do with the insurance, as it had been misrepresented. Cornelius James O’Leary, said he was present on every occasion when Mr Murdoch went out to the camp and knew that the accident policy was for £2 a week. He had remarked to Bothwell how lucky he was to get £2 a week. He had heard defendant repudiate the policies. Mr Fletcher said that the offer to take out a policy was made to Murdoch as agent and the withdrawal was also made to him as agent. The acceptance from the company was not received till some time afterwards and the offer had already been withdrawn through the agent prior to the acceptance. Mr Kerr said that Mr Hunter acted in a dual capacity: as agent, and to lend money in a private capacity. The Magistrate said that the money was advanc.d on a promissory note ov Hunter and was not conditional on the premium being accepted. Defendant*, remedy was against the company. On the facts it may be he had a right to recover the premium. Hunter had given the money in consideration for something. On the transaction Hunter j was entitled to get back the premium which he had paid. Bothwell appeared to have two complaints. First, that he had been induced by misrepresentations to take out a policy, but that was a matter against the company. Secondly that before the insurance was accepted he withdrew it. That was also against Ihc compary. It had nothing to do with Hunter in his private capacity or us agent. Judgment was given for plaintiff for £8 0s 4d and £2 10s costs.