SUPREME COURT.—CIVIL SITTINGS.

Otago Daily Times, Issue 4026, 13 January 1875, Page 5 (Supplement)

SUPREME COURT.—CIVIL SITTINGS.

Tuesday, 12th January. •(Before His Honour Mr'(Justice Chapman and a Special Jury.) A. R. HAY V. HOG'a AND .HUTTON AND H. SOMERVELL. In this acbion, the plaintiff prayed (1.) that a certain receipt, dated 12th January, 1874, might be declared by decree of Court to amount afc most to' a security for the due retirement of four bills of exchange therein mentioned. (2.) Thafc upon the due payment of what might be adjudged, or found to be due,-in respect of the first bill of exchange,in'the receipt mentioned, and the delivery up fco Hogg and Hutton ot the three other bills, the said receipt might be cancelled and destroyed. (3) That Hogg and Hutton might be required, at their own cost and charges, to execute and register a release of the - encuinbraoce rogistfered against tlie title to the land mentioned in the declaration. (4.) That Hogg and Hutton might be decreed to bear and pay plaintiff's costs of suit, together with such other costs as might be" awarded to the defendant Hendry Somervell by reason of hia having been made a party to this suit. And (5.) That plaiatiff might have such further or other relief as to the Court might seem fit. Mr Macassey, with him Mr Stout, appeared for plaintiff; Mr Barton, with him Mr Stewart, for defendants Hogg and Hutton.

The declaration sets forth that on the 12th January, 1874, the defendant Hendry So mervell (who is the father-in-law of plaintiff, and resides at Auckland) wa3 possessed of a piece of land at the comer of Princes street and the Octagon, Dunediu, for a term of 21 years from Ist May, ISB9. Plaintiff occupied part of the leasehold premises as sub-tenant of Somervell, and as agent of the latter was empowered #o sub let the remainder and receive the rents thereof. On the 12th January, 1574, the defendants James Hogg and James Hotton held a.3 sab-tenants of plaintiff parb of the Je wieliold premises, <o.isisting of two shops and premises in Princes street, at the rent of £364 pi;r auuitin for a term of years expmig on the 31st Deccmb r, 1874, the rent being.payable by monthly instalments. On the 12th January, 1874, the plaintiff, being personally in want of temporary pecuni; ry assistance, applied to Hogg and Hutton to except for his accommodation four bills of exchange for the sum of £150 each, drawn by him upon Hogg and Hutton under their co-partnership, firm, or style of Hogg and Hutton, and payable in two, three, four° and five' months' elate, respectively, from and after the 12th January, 1874. As security for the due retirement of those bills, the plaintiff offered to give Hogg and Hutton a receipt in full for three years' rent of the shops and premises held and occupied by them as from the Ist of March last past. Hogg and Hutton agreed to accept the four bills upon these terms and conditions, and plaintiff delivered to them the following receipt:— " Received from Messrs Hogg and Huttun acceptances for the sum of £GOO in bills for the sum of £150. , . In consideration of which acceptances I hereby give the said Messrs Hogg and Hutt .n a receipt in full of all demands, and in full satisfaction of rent for the premises now occupied by them for the term of three years as from the Ist March next, and in the event of my retiring the said aceeptinces when due, this receipt will be null and void. Messrs Hogg and Hutton will nr.t be required to pay any charges during the said term of three years beyond the rate 3 iind taxes previously paid by them." The four bills of exchange were immediately afterwards discounted by plaintiff at the Bauk of Australasia, Ihtnedin, and the proceeds of such discount apulied to plaintiff's individual purposes. When the first of the bills of exchange mentioned in the receipt became due, the plaintiff neglected to retire it, being then under the mistaken belief that he was the acceptor of the bills; but immediately after plaintiff became aware of the first bill by Hogg and Hutton, and on the clay ou which the bill was paid, plaintiff waited upon them at their place of business, but they were theu engaged, and on the day following, plaintiff called upon Hutton and tendered the ainoimt of the bill in bauk notea and gold, but Hutton refused to receive the mon-y bocause the transaction had been entered into with Hogg, who was thenabsentf'cmtown. Afterwards,onthe2sth March last, plaintiff again tendered to Hogg and Hutton the amount of the first bill, thi3 time adding interest to date, but they re fused to receive it. The reason then assigned by Hogg and Hutton f- r the nonaccexjtanoe of the money so tendered was that in consequence of the default committed by plaintiff in the non-retirement of the first bill at the precise timewhen it became due and payable, they were entitled, in terms af the receipt of 12th January, 1574, to hold the plaintiff to his promise to permit them to occupy the premises held by them for a term of three years from tbe Ist March, 1874, free of rent, in the event of the second, third, and fourth of the bills of exchange being met at maturity by them. The plaintiff therefore took steps towards bringing the present action. The declaration then goes on to s^ate that the plaiutiff duly retired at maturity the remaining three bilb of exchange, and had always been ready to recoup to Hogs; and Hutton the amount of the first bill, which was accidentally and through oversight charged to and paid by tho>n. Hogg and Hutton had registered the receipt of the I2th January, 1574, as an encumbrance against the whole of the land referred to above, although the shops and premises occupied by them only formed part thereof. The declaration concluded by asserting, that the real object, meaning, intent, and agreement of pla'ntiff and Hogg and Ilniton in the transaction or arrangement of 12th January, 1874, were that t]ie receipt should operate and be a security merely for the re tirement of the bills of exchange. That the tta-s;ction or arrangement was made and entered into by the plaintiff merely for his personal convenience and accommodation, and Hendry Somervell has never received any benefit therefrom, nor •syas he made aware of the same prior to the 25th March, 1874. That, from the relations existing between plaintiff and Hend/y Somervell, and the trust aud confidence reposed in plaintiff by him, and the voluntary assistance and pecuniary advantages which he had been in the habit of giving and making to the plaintiff to enable the latter to carry on his business as a draper in Duneilin, plaintiff believes that Hendry Somervell would not have complained of the agreement contained in the receipt of 12th January, 18,74, if its true meaning and spirit had been resppcted and observed by Hogg and Hutton. Put owing to the construction- sought to be placed by Hngg and Hutton upon the receipt, Somervell declined to be bound thereby. That Hogg and Hutton had recently threatened to take proceedings to enforce the specific performance of the agreement verbally expressed in the receipt. Mr Macassey opened the case for the plaintiff, and then called the following witnesses :—

Alexander R. Hay, the plaintiff, stated that Hendry Somervell, of Auckland, was his father-in-law. Tlogcr and Hutton occupied premises belonging to Mr Somci-vell in Princes, street. An agreement was entered into as to'rent iv IS7O, and another in 1573. The latter was for the payment of £7 per week, payable mopthljy for 1874. When the four "btils were discounted at the Bank of Australasia, witness stated to the Bank officials that they we're accommodation bills given by Hogg and Hutton, and he afterwards made tl^e same statement in Hogg's presence, and was charged 1 per cent, discount. Y^hen the first bill became due witness forgot about it, and ib was presented' and duly paid out of Hogg and Huron's account. The same day witness went into defendants' office explained that he had forgotten the bill, and said he would see about it nest day! Witness went in ne.xt day h tender tho amount a.nd found Mr Hutton there. The latter said, "Well, I have had nothing to do with this transaction. J would prefer that you would let it stand over until Mr Hogg comes home." As soon as witness heard that Hogg returned, on 25th March, he went in to Ins office and tendered him a cheque for £150 He declined to take it, and referred witness to his solicitor. He said nothing about the receipt. Witness consulted Mr Macassey, and on the same day he tendered the amount, with interest, in gold, to Mr Hutton, in the presence of Hogg and Hutton's traveller. Hutton said he accepted it as a tender, but witness had it counted out on the table. Hutton. would not take the money. Witness paid the three other bills. '' '-

Ci;oss-examined: Witness was not the owner of the property occupied by Hogg and Hutton, Witness collected the rents, "and

a PPr°P«ated them.to his own use. He paid all the outgoings, which were'more than the income. Before witness's bankruptcy he gave Somervell a mortgage over this property, to account of some back interest witness owed him on account of another mortgage. Witness did not sell the property occupied by Hogg snd Hutton to Herbert, Haynes, and Co., for £4000. Witness authorised Gillies and Street to sell the property for £4700. £7000 was since offered for the property. Witness never represented to anybody that this property was his own. Witness fully explained to Mr Gillies the position of the property. When Somervell found that Haynes was to be the purchaser through Gillies and Street, he telegraphed stopping the sale. Up to the time of this action witness was acting without power of attorney for Somervell, bub one had. been drawn up since. Defendants were not to receive any consideration for accepting those bills. At the time the transaction was entered into, Hogg said he wanted a carpet, and he agreed to give him one at cost price, 5s 4d. The carpet was charged at 7s 6d by mistake, and the price was reduced to 5s 4d, the account being endorsed "by allowances in consideration of accepting four bills." The word " four " was an error. He never told defendants' clerk that the-building was his, although standing in SoruervelPs name, and that a little scheming was necessary to keep one right. Jno. Sandiman, formerly apprentice to Mr Hay, corroborated the evidence of the latter as to the tender of £150 in gold. This closed plaintiff's ;ase. Mr Barton moved for a nonsuit. The case made out in the declaration was that Somervell was owner of the premises, and that Hay acted as his agent; that Hay entered into an agreement "with the tenants, but Somervell repudiated that arrangement ; but in his evidence he admitted that he had authority to make such au arrangement. Further, the plaintiffs had no status, aa he was not the proper person to bring the action.

His Honour said he would reserve the nonsuit point. It might; form an argument in favour of dismissing the bill. The Court then adjourned till 10 o'clock this morning.