LARGE CLAIM

New Zealand Herald, Volume LXXI, Issue 21932, 16 October 1934, Page 12

LARGE CLAIM

BE. KAYNER'S ESTATE JUDGMENT FOR £14,775 SERIES OF TRANSACTIONS SUPREME COURT DECISION "In mv opinion justice in this case requires that tho smaller debt should be set off against the larger, and judgment given for plaintiff for the balance," said Mr. Justice Ostler, in giving judgment in the Supreme Court vesterdav in the claim of Mrs. Elsie Violet Bushill (Mr. V. R. Meredith) Rgains-i the estate of the late Dr. F. J. Rayrier, represented by John Morrison Melville as executor (Mr. Colliding). Dr. Rayner died in September, 1931, leaving an estate valued for probate nfc £70,000. His Honor at the hearing gave oral decision on most of the questions raised, but reserved one. Tq setting forth the facts His Honor said that in 1919 Mrs. Bushill lent to Dr. Ravner £14,980, the agreement being that he should pay interest at 6 per cent per annum. No interest was paid during his life. In 1921, for good consideration, plaintiff agreed not to charge any interest- on £IQ,OOO, but interest was to be payable on the balance. In 1927 she was in need of £IOOO and applied to Dr. Rayner for the repavment of that sum. It did not suit him at the moment to pay, so he suggested that plaintiff should borrow £IOOO from a bank on his guarantee. She agreed to this course and he guaranteed a loan to her of £IOOO, which was unpaid at the time of Dr. Rayner's death. Another Transaction In 192S plaintiff owed a debt to the Commissioner of Taxes and applied to Dr. Ravner to pay this debt out of the moneys he owed her. Dr. Rayner agreed to become responsible for the debt and he gave a mortgage to the commissioner over his house for £SOOO as security for the debt. In consideration for this plaintiff agreed that she would not demand payment of the balance ot her debt during Dr. Rayner's lifetime. Dr. Ravner left a will under which defendant was appointed his executor. Plaintiff made a claim on defendant as executor for payment of her debt, and defendant, not knowing all the facts, refused to admit the demand. In 1932 defendant paid off the mortgage on Dr. Rayner s house, and in 1934, just before this action was commenced, he paid off the amount due to the bank under the guarantee. In iier statement of claim g credit for the amount which had been paid bv defendant to discharge the mortgage, and claimed only the balance due with interest. Not beeii informed that defendant had paid off the guaranteed loan she did not give credit for this payment. Counter-claim Mads In his statement of defence, defendant denied the loan to Dr. Rayner, and he counter-claimed for the sums which he had paid in discharge of the mortgage and of the guarantee, with interest. No defence was filed to the counter-claim, presumably because plaintiff had already given credit tor the amount paid in discharge of th<e mortgage, and was ready and ■willing to give credit for the discharge of the guarantee as soon as she was informed that that sum had been paid. At the hearing counsel for defendant claimed that the Court must enter separate judgments, one for plaintiff against defendant'for the whole amount of the debt, and the other for defendant against plaintiff for the full amount he had paid in discharge of the mortgage and guarantee. Question of Solvency "The effect of so doing, if it should tyrn out- that Dr. Rayner's estate is insolvent, would be that his estate might be able to recover its judgment in full from plaintiff, whereas plaintiff might be able to recover nothing from the estate," said His Honor. " I determined that in respect of the repayment by defendant of the mortgage he was not entitled to a separate judgment. "The sum paid in respect of the guarantee is, however, not in the same position, for there is nd express evidence that Dr. Rayner, when he guaranteed plaintiff's account for £IOOO, intended to become the principal debtor for that amount, and thus to discharge his debt to plaintiff to that extent, though probably this was the intention. There will be one judgment only for plaintiff against defendant as executor of Dr. Rayner's estate for £14,775, with costs according to scale." His Honor allowed defendant costs as on a counter-claim for £IOOO.