SUPREME COUIIT

Otago Daily Times, Issue 11542, 30 September 1899, Page 7

SUPREME COUIIT

IN CHAMBERS.

FHIDAY, SEI'TE-IBER 29.

His Honor Mr Justice Williams.) Connell- and Co. v. Tlie-Cdlonial Bank-of INew - Zealand.—Summons, for; directions *6n taking accounts.—Mr Chapman and Mr J. Cook appeared for the plaintiffs, and Mr Hosking and Mr Sim for the defendant bank.—After the matter had been discussed by counsel, it was allowed to stand over pending the preparation of a draft order by -the • parties. Scott v. Stout (Inmitod).—Summons for inspection (Mr Hosking).—Accordingly. . Bowron Bros. v. The Otago Farmers Cooperative Association.—Summons for discovery of documents (Mr Sim).—Accordingly; 10 days. -Re William* Read (deceased).— Motion for-re-* numeration to* executors (Mr Sim).—Registrar s report., confirmed; remuneration -accordingly. -iRe". Margaret Amelia ... Mosch (deceased).—; Motion for remuneration to executor (Mr J. Cook).-^Registrar's ■. report .confirmed* remuneration accordingly.. ■ • . - *.... . Probate was' granted in the estates of the., following deceased persons:^-Jane Guthrie (ilx. Sim)/Agnes Mackie (Mi. Adams), Henry loms. (Mr Mouat), Timothy7Keates (Mr Sim), and. Margaret .Adam (Mr*W6od). '~.; '-, ; TR e An<nis Ewing Livingstone (deceased).— Petit'on to have estate administered by the official assignee (Mr Barclay).—Order accord-.-settlement' hy "William '."Walter* Cargill and re" The Cutten Trust Act, 1599."— Motion-for taxation *of - costs of trustees and' beneficiaries, (Mr Brehtj.—Decision reserved. ■ •'Monaghan -v.' Perry.—ln .this . previously-; lieard appeal case,. hUHonbr'gave' judgment as; follows:—"-1 ,think7\the .*• -weight; : -'of. evidence justifies.-the conclusion that.. Simson was: Perry's, agent. to receive" f lic ' money' secured by*. Monaghan's crop. lien. Certainly Sinisdn .was: Perry's agent In ihe. negotiations for the crop lien..;-He was, employed by /Perry to secure; crop liens for him, and secured this amongstothers. The ;7money;* was- received - :*by him; iToni Perry, \vas. paid into liis own account,, and was ;paid out again; by. him to Monaghan. when the security was completed. Itdpes not .■of. course '.that, because" Simson was.. Perry's agent fqr^ the .purpose- of lending the ■moribythat he was'also Perry's agent for the; X^urpose of receiving it wnen due, but the cir-.. cumstance,that.he was the 7>igent in, the one. case makes''it *: : n6t* Improbable' that he.'was;, agent-.intheotheri .Perry did a great-deal of business-lending money on. grain liens. Simson-' "says,*'."*l. did 'practically..-the';'whole of ; Perry's grain lien business since ;-we were. acquainted. I collected practically the whole; of the money, except once, I think.' 7 It was. : not denied on tlje part of the plaintiff that the; money"was repaid through Simson, biit it-was;, contended as r most of the persons who. had liens; . were J clie.htsy.7of;. S.imson'.. that ' the. ."/.money : TOsfpmS* by'.thpm tb, Siihsonas their agent . for''tho, purpose., of :payirig '.Perpr, .and' not as* Perry's-agent; 7 In*.support of ;tbis contention; 'tie'; fact that;*'.-?erry,;-iad. up-'account'* in' Sim-C soh'sf books .was'insistdd. on;-. That.no doubt is; ah "elethent, for consideration, but it would; tell equally against "She probability that Sim-, son was Perry's agent in lending the money,; and as to this the evidence-is: clear. If it is: shown that money owing to. Perry, in, respect: of a Certain class ;;'pf "transactions wasordinarily paid by^bbrrowers "to; Simson, and ■fcr- him .paid .to • Perry, the inference;'.ls.;that' Simson was authorised .by Perry to receive* ■it-' That inference is; strengthened if it; appears that when the money came. : due .Perry 7;did: hot' ;_.pply; • to 7 the'; • borrower? himself, but*looked to,Simson.for it. ..-In.the present, case, :'thV money .became, due on the; ITth, November. -Perry made no application to Monaghan -until-'some three months after,; when he had failed to get the money from Sim-: son. If Simson was hot authorised to collect the, money for crop liens on behalf of Perry, I fail. Id understand the bearing of Perry's letter to Simson on the 12th* Noverhber,>lß9B (exhibit 7).7 ' There is, however, the additional fact here that* Siinsbn" did act as Perry's agent for": recovering and paying.to :Perry'-apart of the,money se- . tpired.. ; Part. of the security, was. a grain war-; ; rant over bats in Messrs.Hehdersoniand Bat;;, ger's /store.'.'. ■ This "wis. in* the .hands* of the:. ißank' of Australasia, and Simson' obtained it; ■qiidei an order from Monaghan, holding it, of': course, on behalf of Perry.';: The oats.were sold,; liy the' New Zealand' Eoah and VMercahtile-; Agency Company by the instructions of ;Hona-:/ ghan,. but they .were delivered.to.the.purchaser, aiid -tiie -money Tpafd to/Simspn; onIy ; -by virtue-, of '.jtlie!; .warrant', which; Jhe . held.** on .Xb'ehalf',' of; Perry',; and the money was remitted- ,by': Simson to Perry., .There is-additiohal evidence on the' part of Monaghan to'.w"hich";T am inclined ta/ give credence,, although it is contradicted by.; Perry; which strengthens the; conclusion that. . • Simson .was; authorised .by. Berry, to receive the" jiioneyL ,7:Monagh_ui^:says*--.tJiai_, ,a 7 day-,-,'or 52 twq;: . after-The-hadIsettled-;a^^itht'Simsbhf'hei-inet;-Perry; 'and told him tb call on-- Sim'sbn' and get liis'moiiey, that, hia accouiit was" settled up,,to 'which Perry ;replied," " Oh,. Jack (meaning Sim-1 son) is-.all right; I'll call, andjget.it before I; go." .Monaghah also' speaks of two subsequent conversations; X&t the last of which he says that Perry:, told ;him;he: had got' the inbneys from Simson; - Perrg himself "says' 'ifcit he saw Mpiiaghah :pretty ,*w^H!"-fyeiy :trlp;7lie"werit to: Gbrfe"," and that he .(terry).goes.:down:to ,Gore fully iialf his- iiime/ ;Now'-Monaghaii; had squared. * lip .with .Simson:.oh the .16th'- ot 17th* of TNp.yem-., her,. and; Perry and Monaghan -had .certainly; , met shortly after.. Monaghah./wbiild; therefore,1 naturally say. to,: Perry'7what1 he says'.he <M-; Soy, too, the-iansw.er7M6hagh*au..sayi;Perry;. gave*, is probably what he .did really give, because if Perry had thrown ahy.dbubtsas to Simson.being all right,.or had^ "not appealed satisfied, at the money having been left'with Simson, Monaghan would certainly have gone to Simson to see about it; Monaghan did not go, however, but:acted on the assuhiption;that., the: matter ■was,settled until the claim :was made oh him by Perry after Simson's cheque was finally dishonoured In* February. _. It is not difficult to -believe, therefore, that Monaghan was : led'by !Perry^s'7stat'ement3..to suppose that the matter : had. been settled, and' the money. paid.KThe evidence,; moreover, -shows that Perr/.s memory in several; particulars has-been defective.. I do. :nqt. think that: what, took place after the cheque .was finally throws much light on the real position. of the .parties at .the e'arlier.date.7*;Perrj. not being able to get the money.'from Simson, - of, course, tried to get it, from; Monaghan, Simson :was. deluding* both parties, and Monaghan not unnaturally was doubtful-hbw he stood. Sitting ais a jury, I conclude,' therefore; that Simson was Perry's agent ..to receive, payment . of the moneys due on Monaghan's lien. 'The provision in the lien that the grain, 'when threshed, *was to be , stored to.'the order of Perry and sold through Simson at usual rates, Was ho doubt insertedto enable the grain to be dealt with before the money became due that the farmer might* not lose his market/and at the same time to protect Pefryi •. It; was also inserted for Simson's bene^t : as a^ mode of - remunerating him for his services rendered *to ■ Perry in connection •with the lien by enabling him to get the charge for storage and commission on sale. Here the oats and barley were sold by Simson; though they hadnot been previously stored; they were delivered by Monaghan to Sinlson's order, and Simson received* the money for* them. Simson says7that Perry was made aware from time to time of 7sales of.grain under'lien,, and that he knew of the. .sale- of this* particular grain. /This -is confirmed by.Simson's letter to Perry of the 14th January, and later letters, in "which he refers, only .to the wheat'as unsold, taking for '/granted-that Perry knew of the sale of th; other grain. He would hardly have, so written unless ;Pe-_ry: did know. So long as the grain was sold 'through Simson, and he got the money'for it, there would be no need to go to the unnecessary expense of storing it before sale. * The circumstance that Simson purported to have sold the grain at a named price, while, in _act,7he had sold it at an7enhanced price to cover carriage, does hot make the sale the less a* sale by Simson. He, in* fact, received 'the money for which he purported to sell it. After Simson; had sold the grain: he certainly could not Have; handed the "proceeds to Monaghan without the consent of Perry: 4,fter;the amount of; the lien became due the only person whb could have successfully sued Simson for the proceeds he had received was Perry, nor could Simson have set off against the claim, by-Perry a debt due to him; from Monaghan.: That being the; position pf Simspri under.the agreement of lien, and Simson be: ing further. the agent .of Perry, to receive moneys;due under the lien,.l think that.the receipt by Simson of the proceebts of the sale of the property over which the. lien was given was the. receipt by Perry. I think there is sufficient evidence also to justify the further conclusion that Monaghan was led by7Perry into the belief that Perry had been settled with 7jy Siinsoh, and that in January Monaghan paid Simson a considerable sum of money on another account, which he would not have paid him if he had not so believed. Even, therefore, if Perry retained a right to hold Monaghan liable, aa well as Simson, he wouldnow be. estopped from, setting up the right. Judgment, for appellant." . His Honor directed that judgment should be entered up for .the defendant in the" Magistrate's Court, with costs £20), disbursements^ and witnesses' expenses.