BERTIE V. EQUITABLE OF THE UNITED STATES.

New Zealand Herald, Volume XXVII, Issue 8178, 13 February 1890, Page 6

BERTIE V. EQUITABLE OF THE UNITED STATES.

A careful perusal of the evidence and judgment in the above case forces on us the conclusion that Mr. Robinson, R.M., gave a decision alike adverse to the company, the evidence, and the law. It is a misfortune that the case should have been heard in an inferior Court, where the legal argument* which were essential to a right decision on a matter of so much importance were naturally less complete and exhaustive than they would have been hud the case come before a Supreme Court Judge. There are several matters in the evidence before the Court of mingled law and fact, in dealing with which we think Mr. Robinson gave the defendant company something less than justice. First, as regards the delay in the proceedings. The inception of the contract was in 18S6 —more than three years ago, and the plaintiffs explanation of the delay, his account of how he came hot to take action before, was most incomplete and unsatisfactory. The course taken by him wears the appearanoe, at any rate, of being inspired and instigated by the agent of some rival association rather than the natural outcome of events. The delay in taking action for three years appears to us a fact bearing very strongly against the plaintiff at the outset. Mr. Skerrebt's able contention on the contract question seems thoroughly sound; he said: "The misrepresentation appears to consist of an alleged statement as to the effect of the contract, and he contended that it was quite plain that such misrepresentation could not support; an action of deceit He submitted that in this case the signing of the proposal and policy by the plaintiff must be taken as an acceptance ot the contract. He argued that a man who enters into a contract mußt have made himself acquainted with the terms of such contract before entering into it." This is perhaps the first case before the Courts in which oral statements and those contradicted again and again have been allowed not merely to be used to modify and explain an ambiguity, but to flatly contradict and override a written document. Mr. Bertie appears to be a somewhat addlepated person, who had erreat difficulty in understanding what he was doing, but with every possible allowance for his obbuseness, we fail to see why the agents of the Equitable should be blamed because they apparently failed to make him understand the nature of his contract. Mr. Robinson again exhibited a singular blindness as to the value of the evidence offered him. Mr. Ross is a permanent official paid by salary, with no interest whatever in deceiving Bertie, and he is, moreover, a man of sterling worth and independence, to whom such a deception would have been not merely distasteful but wholly impossible. Both Mr. Ross and Mr. Johnson are really blamed by the magistrate, beoause, while informing Bertie what his policy was, they olid not tell him what it M'as not. Wo hale two permanent and independent officials positively declaring that they explained to their stupid client what sorb of a policy he had got, and no reasonable man should have had any doubt that they were speaking the truth. And, after all, the difference between the plaintiffs statement and that of Mr. Boss, the present manager, was not a great one. Mr. Bertie says he was told he would get £500 and accumulated interest at the end of twenty years if' he -survived that period. Mr. Ross says that after referring to the table of estimates he bold plaintiff he ouo-ht to receive £688. We pass over CL ties Moore's evidence for obvious reasons as of no real value, but desire to point out that Mr. Trigg's absence in America is one 'of the unfortunate -jonßequences of the' plaintiffs unaccounted-for delay in bringing tho action, a delay which in itself was almost enough to put him out of Court. If Mr. Bertie lost the bet of a suit of clothes, to which he jocosely referred as the immediate cause of his bringing this action, Mr. Robinson certainly lost his head in giving a decision apparently contrary to fact, and certainly contrary to law. a.Z. Insurance and Finance Journal.