PAYMENT OF CHEQUE

Otago Daily Times, Issue 24775, 27 November 1941, Page 8

PAYMENT OF CHEQUE

STOPPED AT THE BANK CLAIM BY LAND AGENT JUDGMENT FOR PLAINTIFF The Chic! Justice, Sir Michael Myers, was engaged at the Supreme Court yesterday in hearing an action brought 'by Messrs J. W. H. Clarke and Co- against Messrs Wright, Stephenson, and Co. and Francis Dionisio Johnson, farmer, Momona, for the sum of £IOO. the amount involved in a cheque transaction. Mr F. W. McElrea appeared for the plaintiff company, Mr W. F. Forrester for Messrs Wright. Stephenson, and Co., and Mr J. M. Paterson for Johnson. John William Herman Clarke said that Mrs F. D. Johnson had purchased a house at Shag Point from his firm and had paid him a cheque for £IOO. The cheoue was drawn by Messrs Wright. Stephenson, and Co'., payable to F. D. Johnson and endorsed by Johnson. Witness had banked’ the cheque on May 29.' and it was returned to him stopped the following day. . Cross-examined by Mr Paterson witness said that the cheque was crossed “ not negotiable.'' but that he frequently took such cheques. Mrs Johnson had told him that she had had her house burned down and that Mr Johnson had given her permission to buy any small property she thought proper. The house was .to be removed to their farm at Momona. Any amount owing above the £IOO was to be paid for at the rate, of £ 1 a week. 1 1

Cheque Stepped Francis Dionisio Johnson, the defendant, said that he was heavily- in debt and that he had been living in a converted tramcar on his property. The tramcar had arrived at hi" property without his knowledge. Witness-; gave evidence regarding gctL'ng the cheque from Messrs Wright Stephenson/ and Co. and how a deal for a house at Miller's Flat had fallen through. The cheque had been given to Mrs Johnson, but bed not been returned to Messrs Wright. Stephenson. and Co.t and it was stopped at the bank. His wife had ashed him why ho had stopped the cheoue and said that she'bad bought another proport, v and had paid for it with the cheque for £IOO. He had protested agaimd her buying the second place. He had later heard that Messrs Clarke and Co. were asking for payment of (he cheque and he had told Messrs Wright. Stephenson, and Co. not to pay. There was no suggestion that the house from Shag Point was to go oi, his farm, and that was one reason for his refusing to go on with the deal. He would have been content if the house had been going on his property at a value. No Authority to Wife

Witness was cross-examined at length by Mr McElrea. He said that the cheque was originally obtained to purchase a house to go on his property The first deal had fallen through. He denied that his wife had ever said h* him to leave it to her to buy a property. He denied that he had said u* his wife that if the Shag Point properly suited her die could buy it. His house had been burned down in August. 1938. It was a £2OOO house. Hi* 'had seen Mr Clarke after the purchase of the Shag Point house and had told him that his wife had no authority to buy the house. He denied that when he'had seen her the previous night ho had threatened her if she gave evidence in the case.

Leslie Raymond Simpson said he had been Mr Johnson’s solicitor for some years. He had seen Mr and Mrs Johnson at his office, and Mr Johnson had made certain allegations against his wife regarding the cheque. Mrs Johnson had said that her husband well knew that he had told her to keep the cheaue to buy another place. Hr reply had been in effect that any such place to be bought, for him was to go on his farm. Johtrnn ako challenged his wife with not having divulged to him the fact that, she had received Hr cheque back when he had as'rd her about it. Mrs Johnson had made no answer

Sale to Mrs Johnson Mr McElrea called Ernest Laurence Walter, farmer, Miller’s Flat. Witness said that all the arrangements in connection with the sale of a three-roomed house at Miller’s Flat were made by Mrs Johnson. The deal was . subsequently called off, and‘the cheque paid to witness was returned. Mr McElrea called Myrtle Eileen Johnson, wife of the defendant. Witness said that her husband had been quite satisfied that she should purchase the Miller’s Flat house. The deal had fallen through because of the difficulty in shifting the house. When the cheque had come back from Walter he had given it to her to buv a place to go on the property. When she bought the Shag Point house it was for her husband, herself and their child to liye in and the cheque which she had paid to Messrs Clarke and Co. was stopped bv her husband, and when she had told her husband about the chequebeing stopped he laughed and said that the money was there whenever she wanted it. She told her husband that she had bought, a house, and he had said that that would bo all right. Threatened by Defendant

Her husband had never questioned her authority to buy a house, witness added. Her husband had come to the place where she was living in town on Tuesday night, and he had told her that she was foolish to go on with the case. If he lost he conic) not, he said, race his hol'ses at Forbury on Saturday, and that she was very foolish to go against her husband. He would even divorce her if she won the case. He said “You go into the witness box and say that you had no authority to buy the house.” Witness said that she was just amused, and did not take the matter soridusly. Her husband was in a raging temper To Mr Paterson: She would say fhat the cheque was given to her as a gift. Mrs Johnson’s Evidence Accepted

Delivering judgment, His Honor said that both the companies had acted in perfect good faith. The defendant company had drawn the cheque in good faith to Mr Johnson, and in due course it had been delivered by Mrs Johnson to the plaintiff company. Messrs Wright, Stephenson, and Co. really did not make any defence on its own behalf, except such defence as they were entitled to. make jointly with the husband Johnson. It was a defence upon which the defendant company relied, and necessarily relied. “As the action has been shaped before me,” said his Honor. “ the question really resolves itself into this — whether I accept in the main the evidence of Mr Johnson or that of his wife, because the dispute is really/ a dispute between them. I may say at once that the particular matter in the evidence which I think throws a flood of light on the whole case—and this is an admitted fact—is that Mr Johnson last night called upon his wife, who had been in Dunedin since Monday. And for what purpose? The conclusion to which I am necessarily forced is that he went there for the sole purpose of saying something to her about this case, and that that was the only point upon which they held any conversation. Of that I am satisfied, and I believe Mrs Johnson when she said that he said to her —‘ Go into the witness box and say you had no authority to buy a house.’ In my opinion, that little happening last night throws a flood of light upon the whole case. Ido not accept Mrs Johnson’s evidence literally—l have very grave doubt whether she herself meant that the cheque was a money present which was given to her-—but taking the evidence and the whole probabilities the position in my opinion is this—that Mr Johnson did authorise her to buy a place and to pay £IOO, which in the first instance he had found in the cheque of Messrs Wright, Stephenson, and Co., and which was given to her to hand to Waller. But the transaction

with Walter had .been cancelled. The next important point was that there was no earthly reason why. if Johnson was not giving his wife any authority, he himself should not have called on Walter and delivered the cheque to him. Nothing of that kind was done," His Honor said that if Johnson had not given his wife some authority he should have taken steps to get the cheque back when the deal with Walter had fallen through, but he had not done anything of the kind. His Honor added that where there was a conflict of evidence between Mr and Mrs Johnson he preferred Mrs Johnson’s evidence to that of Johnson. He would give judgment for the. plaintiff for £IOO with costs, and thejudgment must of course be against both defendants.