ACTION AGAINST A BANK.

New Zealand Mail, Issue 1190, 21 December 1894, Page 30

ACTION AGAINST A BANK.

Mr Justice Richmond and a special jury of 12 were engaged on Tuesday in heai-ing a suit bi'ought by Victor Maurice Braund against the Union Bank of Australia to recover <£lsoo damages for alleged breach of conti*act. Mr Skerrett appeared for the plaintiff, and Mr H. D. Bell for the Bank. Mr James Lockia was foreman of the jury. , , \\ >- ■

The plaintiff’s statement of claim set up two causes of action. Upon the first he claimed .£SOO damages for alleged wrongful dismissal, claiming that the term of the original contract made . with him was three years'; that on the’ expiration thereof the contract was- from quarter. to quai'teff .determinable only; at the end of any quarter of service upon three months’ notice. The second cause of action alleged that upon the appointment of the plaintiff to the New Zealand branch it was agreed that he should be employed in such work as would enable him to become,acquainted with the dxxties of the post of resident inspector’s * secretai'y at Wellington, and that so soon as lie became competent to undertake the duties the Bank would appoint him to that post at the salary then paid to the occupant of the post, viz., .£373. That upon tho faith of the contract, the plaintiff left Vie-tox-ia and entered the service of the Bank in New Zealand. That in 1892 the resident inspector at Wellington reported that the plaintiff was competent to undertake the duties of such office, but in spite of such report tho Bank neglected, and refused to appoint him, and in lieu of doing so employed him in other arduous and severe duties in connection with the service of the Bank, whereby his health became : injured and impaired. Further, that upon * the plaintiff insisting that the Bank ought to perforin their contract they dismissed him from their service. Upon this count the plaintiff claimed .£IOOO damages. The statement of defence alleged that tho service of the plaintiff was terminated in pursuance of an agreement entered into in June, 1890, and denied that he was wrongfully dismissed. It claimed that while the plaintiff was serving in the Melbourne office the Bank had power.to tx-ans-, fer him to any branch or agency or other establishment of the Bank, and that- at the time when tlio office (in respect of which plaintiff alleged that an agreement was made with him) became vacant he was./ incapable of performing the duties of -such A office,tand himself notified the Bank of sxiclihjeapacity. It was further averi-ed that though the plaintiff’s business capacity was not questioned by the Bank, his per- • sonal temperament ,was not such ; as to qualify him for employment in. the office in " respect of which he alleged an. agreement. It was denied that plaintiff's "health was injured or impaired by the duties required of him, and it was averred that -plaintiff,'', committed acts in violation of his agreerA ment with the Bank, these acts being such , . as to justify his instant dismissal, viz., retaining in his private possession copies of confidential reports by him and correspondence between the Bank’s officers and himself..

The plaintiff gave evidence, and said that in January, 1892, when he was in the Melbourne office, Mr Moore (acting chief officer) told him the general manager had selected him as successor to Mr Longden (in the Wellington office), who was to be promoted.' The substance of this conversation witness repeated to Mr Finlaysont general manager, who confix med it, but said he could not then definitely appoine him to Mr Longdon’s position, as the resident inspector’s was a sepai*ate staff, and Mr Tolhurst would have to be satisfied of witness’ fitness. Witness took a week to consider the., matter, and then saw Mr Finlay son again. On this occasion he asked, “Do I understand that I shall be promoted to Mr Longden’s position so soon as I shall .be competent to fill it.” He explained he put this question because he was afraid of being left in the ruck, and would be satisfied to accept the appointment with such an assurance. Mr Finlayson gave an affirmative answer. Witness accepted the appointment, and arrived in Wellington on Saturday, 23rd January, 1892, and on the Monday following ho took up his duties. Up till December, 1893, witness complained frequently that the Bank wasnot fulfilling its ari'angement with him, and in December, 1892, he asked Mr Tolhurst whether he considered him competent to take over Mr Longden’s position, and reminded him the Bank had promised it to him as soon as he had qualified for it. Mr

Tolhurst replied that he was perfectly satisfied as to his competency, and would write to Mr Finlayson recommending the change. Witness had since discovered that this letter was written by Mr Tolhurst in December, 1892. He had also seen the general manager’s reply, the substance of which was that a difficulty about Mr Jones’ transference to Rangiora blocked ; the way. On 20th March, 1894, plaintiff j wrote to Mr Finlayson (general manager) through Mr Tolhurst, reminding the , former that he had been appointed “ under study” to Mr, Longden, and that on his (Mr Finlayson’s) assurance that as soon as he proved himself competent his appoint- | rnent to Mr Longden’s position would be made: Mr Tolhurst wrote on 17th April, 1894, saying he was desired by the general manager to intimate that plaintiff was in error in saying there was any promise expressed or implied that he was to get Mr Longden’s position, also that, plaintiff was informed he was being sent to New Zealand to qualify for that position should it hereafter become vacant, nothing more, and that he was given no option of remaining in Australia. Plaintiff wrote on the 23rd April, saying he “ must respectfully reassert the accuracy of the statements ” contained in his letter of 20th March. Mr j Tolhurst replied on sth May, advising ! plaintiff that the general manager deemed I the terms of the first portion of his letter of 23rd April tinbecoming, as his statements eame into direct conflict with the facts given by the general manager, who trusted- this was not intentional on plaintiff’s part. Mr Tolhurst offered the opportunity of withdrawing or modifying satisfactorily that portion of the letter, and added: “ Any statement which is equivalent to a charge of breach of faith is one the general manager would necessarily /refer for the Board’s consideration.” Plaintiff replied on the Ist June, stating “.the principles which have always guided me through life, and which, I trust, always may, will not permit a withdrawal of any portion of my letter of 20th March.” The matter then went before the London Board, and the result is indicated in a letter written by plaintiff on the 6th September, 1894; to Mr Tolhiu’st, in which plaintiff stated: “Referring to your verbal intimation to me of Ist inst., that the ' London Board of Directors had resolved that I must either withdraw my letter of . 20th March, or resign, I would remind the Bank that I have already expressed myself unable to withdraw that letter, and it is to be regretted that the request has. been renewed, especially with so severe an alternative.” He declined the alternative 'of resignation, and the same day he received three months’ notice terminating his^engagemeht. Arthur Longden, sub-manager of the Union Bank, Christchurch, deposed that he had had an impression from a conversation with Mr Braund that ho was to succeed witness as secretary to the resident inspector.l ; The case for- the plaintiff having closed, Mr Bell said that he would move for a nonsuit: ' ,

His Honor intimated that as the Court of Appeal would sit next morning, he would hear argument on the motion for a nonsuit on the conclusion ©f the appeal business. The Court then adjourned until 10.30 o’clock next morning.