SUPREME COURT.

Otago Daily Times, Issue 8556, 26 July 1889, Page 4

SUPREME COURT.

CIVIL SITTINGS. Thursday, July 85. (Before his Honor Mr Justice Williams.) KKNTOIf V. MCH. Claim £20015s 3d, balance of account alleged to be due. Mr Frauer appeared for the plaintiff. John Kenjon, of Shag Point, miner; and Mr J. A. Cook for the defendant, Francis Dyer Eich, of Cambridge, Auckland, geutlcixitiu. ■ ■ ■The statement of claim Bet forth that plaintiff who was until recently a coal miner tt Shag Point! lent on June 13, 1879, to defendant, formerly of Bushy Park, Palmerston, the Bum of £500 at 10 per cent, interest, and repayable on demand j that subsequently the rate of interest was reduced to 8 per ! cent., that on January 12,1888, there wae a balance of £300 15s 3d, due on the account between the parties, and that this amount had not been paid, and • was etlll owing. The statement of defence set forth that defendant denied the several allegations contained In the statement of clulm, and said that there is nothing due by him to plaintiff in respeotof the principal or loteteat moneys therein mentioned or of any part thereof respectively. ' Mr Fraser having briefly opened the csbo, called John Kenyon, laUly underground manager for the Shag Point Coal Company, who Bald he went to the mines In IS7B or 1879. He had »ome money then Mr Bich was managing direotor at that time On one occasion ha went to see Mr Bloh at bis office; Mr Bich said he had heard witness had some money aud when witness said he had he asked for a loan of £600. Witness agreed to give him this, the interest to bo at the rate of 10 per cent. A few days afterwards witness was told by Mr Williams, mine manager, that he was wanted at Mr Bich's residence at Bushy. Witness went up and had an interview with Mr Bich. The conversation wai opened by Mr Bich saying that he wanted to get the money matter settled, and that Mr Williams could go with witness to Palmerftoil to get the money. Witness was to get the deeds and some land. Witness did not suggest any security and did not want any. He went to Falmerston-wlth Mr Williams and got the £600 from the Bank of New Zealand He handed It over to Mr Williams on behalf of Mr Bich. but got no receipt. Witness gave no Instructions about preparing the deeds. Mr nich said Mr Catomore would draw them. When he did get them, a good time after, he took them to the Colonial Bank Witness could not read writing. He had been paid interest on account of the loan, always getting it from Williams for Eich. In 1882 witness, at Rich's request reduced the interest to 8 per cent In January 1888 Rich and witness had a conversation, the former stating that Mr M'Kenzle wanted the land, which was under mortgage, and he (Bich) wanted to cell it. He said he could get £300 for it. and that as Boon as he got the cheque he would send It to witness, alto that lie would send some shares as security for the balance. He also said he had authorised Williams to pay the interest quarterly About 12 months ago he left his work at the mine, and had asked Williams to get a " squaring up " with Bich. Witness had lately received interest being paid by cheque, one for £9 in September 1888 and the other for £5 in January last. Witness had not written to Bich. In January Bich sent him a telegram, saying ha oould not pay till the Government paid ths interest on the railway, and that Williams would pay the interest quarterly as usual. Witness now claimed for the balance of £200.

I By Mr Cook: The land was near the Pukelviki Hotel. At the time he lent the money to Mr Kich he thought the land belonged to him and not to the Shag Point Coal Company. Witness did not think he spoke first to Mr Williams about lending the money to Mr Hlch or to the company. When witness found oat that the security he had was not over Mr Rich's laud he said nothing, as he believed it was all right. He bad known for the last 10 years the state of affairs, but never till he left the mm» did he think of taking action. After three or four years witness heard that Hich was taking over the company altogether. The receipts produced were given by witness to the company for moneys received by him from them on aooonnt of the loan. He used to' go up to the mine office and tell Williums he wanted some money, and he used to give it to him. He never looked to the company for money, but to Mr Rich. Witness had boon an underground manager for 10 years, but ho could read very little writing. Williams used to keep the records of the outputs. Qoorgo Hobertaon Cheeseman, bookkeeper at the Shag Point coal mine, stated that he had prepared the Recounts for plaintiff's claim.

By Mr Cook : Witness had been working for seven years with last witueßs, but nevor knew that he could not read writing. It was only within the last fow mouths be had heard Kenyon speak of Hich's liability. For the last few years tha business had been carried on by Hich.

This closed plaintiff'a oa>e. . Mr Cook said the case for the defence was that this money was never lent to Mr Rich at all, but Mr Rioh, na managing director of the Shag Point Coal Company at the time, arranged the loan with Keuyon. The mortgage was given to secure the amount over the company's property, and the money was paid luto the company. Kenyon dealt with the company for about 10 yearß, and now he suddenly fouud it convenient to turn round and try to iix the liability tor the loan on Mr IJich. The ootnpauy wbb originally formed In 1577, when there were seven or eight shareholders. From time to time llich bought out various shareholders-and eventually, about five years after this transaction with Keuyon, Klch had become tbesoleowner of the mine, and it was well known throughout the district that he was tho owner. When Mr Rich in his telegram stated that ho would pay Kenyon he, of course, spoke for tho company, meaning that when the company's assets were realised Kenyou's debt would be satisfied.

William Henry Wllliame deposed he had been mlno manager at Shag Point since 1878. At that time tho company consisted of nine members. The capital was fully paid up shortly afterwards. Mr Rich bought out the other members at different times. He acquired all tho shares In ISB4. Until tho sale by the bank the other dar, the assets consisted of the mine itself, thepropertyand machinery on the minlni? land, 150 acres of land, and the railway. Mr Hioh and Mr Strode heard from witness that Mr Kenyon had some money and was willing to lend it. Mr Eich arranged to borrow the money from Mr Kenyon on the security of the 160 aores of land. The deed was drawn up by Mr Oatomore, at Falmerstou, and the money was handed over and the deed signed on the same day. When witness spoke to Kenyon on the subjeot, he referred to the company and uot to Kloh. Mr Cook: Has Kenyon always treated the company as his debtor. Witness: Oh, yeß. When Kenyon wanted any money at different times ha would come to me as manager, and ask for some. Tho seal nf the company was ou tho document (produced), which was a a mortgage from the company to Kenyon. The doeiim«nt w«s dutcii Mid lDtli Juno 1879.

By Mr Fraser: Tho lust two cheque* for Interest were drawn by •' F. 1). ltioh, per W. H. Williams.." That was tho way in which witness whb required by tho bank to draw on the mine account.

To his Honor: Mr Klch conducted the Uegjtmtioiiß for the sale of tho land to Mr JfKoiule.:

Mr Cook put In the mortungo, and with It oonolnded the case (or the defendant.

His Honor, in delivering judgment, salds It seems I to me that the evidence of the plaintiff Is concluslvei, if it is true that the bargain as to. the original loan wbb made with Mr Rich. Mr Bich is not called to contradict that.,: At the same timo we have Mr Rich's letter, In which he admits his liability for the balance, and we have the further fact that Mr Blah baa given security over his own property for the liability. The only thing that la inconsistent with that is that a mortgage was given over the property of the company at the time of the advance, but the plaintiff says—and I Bee no reason to disbelieve him — that he did not Instruct the solicitor and that he did not know thf.t it was the company's property over which a mortgage was given, and if that is so his case is absolutely complete. I do not Bee how It could be suggested that. If the case were heard before a jury, in the face of Mr Rich's not being called and In the face of hia letter, Mr Rich could be other than liable for the amount: "Judgment will be for the amount claimed with costs on the middle scale; disbursements and witnesses' expenses to be paid by the'reglstrar. ... The court rose at 12.45 p.m.