ACTION AGAINST A BANK.

New Zealand Mail, Issue 1191, 28 December 1894, Page 42

ACTION AGAINST A BANK.

Mr Justice Richmond and a special jury of 12 were engaged on Tuesday in hearing a suit brought by Victor Maurice Braund against the Union Bank of Australia to recover =£lsoo damages for alleged breach of contract. Mr Skerrett appeared for the plaintiff, and Mr H. D. Bell for the Bank. Mr James Lockie was foreman of the ■jury. The plaintiffs 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 quarter determinable only at the end ~ of any quarter of service upon three months' notice. The second can so of action alleged that upon the ap-oointment of the piaintiff to the Kew Zealand branch it was agreed that ho should bo employed in such work as would

enable him to become acquainted with the duties of the post of resident inspector's secretary at Wellington, and that so soon as he 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., .£375. That upon the faith of the contract, the plaintiff left Victoria 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 the 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 perform their contract they dismissed him from their service. Upon this count the plaintiff claimed .£IOOO damages.

The statement of defence alleged that the 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 transfer him to any branch or agency or other establishment of the Bank, and that at the time when the 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 office, and himself notified the Bank of such incapacity. It was further averred that though the plaintiff's business capacity was not questioned by the Bank, his personal 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 agreement 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 confirmed it, but said he could not then definitely appoine him to Mr Longden's position, , as the resident inspector's was a separate staff, and Mr Tolhurst would have to be satisfied of witness' fitness. Witness took a week to consider the matter, and then saw Mr Finlayson 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 he took up his duties. Up till December, 1893, witness complained frequently that the Bank was not fulfilling its arrangement 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 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 appointment to Mr Longden's position would be made. Mr Tolhurst wrote on 17th April, 189-1, 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 Atistralia. Plaintiff wrote on the 23rd April, saying he " must respectfully reassert the accuracy of the statements " contained in his letter of 20th March. Mr Tolhurst replied on sth May, advising plaintiff that the general manager deemed the terms of the first portion of his letter of 23rd April unbecoming, as his statements came 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 sth 1 September, 1894, to Mr Tolhurst, in which plaintiff stated: 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 Avith so severe an alternative." Ho declined the alternative of resignation, and the same day he received three months' notice terminating his engagement. Arthur Longden, sub-manager ot the ■Union Wank, Christchurch, deposed that ho had had an impression from a conversation with Mr Braund that he was to succeed witness as secretary to the resident inspector. The case for the plaintiff having closed, Mr 801 l said that he would move for a nonsuit. His Honor intimated that as the Court of Appeal would sit next morning, ho would hear argument on the motion for a nonsuit on the conclusion of the appeal business. The Court then adjourned until 10.30 o'clock next morning. [Later reports on this case will be found on another page.]