CLAIM UNDER GUARANTEE

Taranaki Daily News, 23 March 1932, Page 7

CLAIM UNDER GUARANTEE

MANGATOKI COMPANY WINS MISREPRESENTATION NOT PROVED NO REPUDIATION OF CONTRACT. Reserved judgment was given at the Elthain Magistrate’s Court yesterday in the claim made by the Mangatoki Dairy' Co. Ltd. against William Robert Perry for £167 Is lid, being the balance of an amount due under a guarantee. Judgment was in favour of the plaintiff company with costs amounting to £l4 17s. “This was a claim for money payable under an instrument of guarantee,” said, the magistrate, Mr. R. W. Tate, “A decision was made to realise on the security and notice was given to both Mrs. McKay and defendant to this effect. In July, 1931, the stock were sold under the instrument of security. The defendant was present at the sale and took an active part, and in November, 1931, demand was made on the defendant for the deficiency bn the realisation. The defendant made no response, nor did he pay. “The defence was that the defendant was induced to enter into the guarantee by representations made by the secretary of the plaintiff company. The alleged representations I find not proved, but I shall refer to an alleged representation that the plaintiff company would get the whole of the income from the two farms. I regret finding it necessary to comment on the quality of the evidence. Douglass was obviously a witness of truth. I am unable to rely on the evidence of Mrs. McKay and of the defendant. Mrs. McKay, who was suffering from a sense of injury, testified reasonably in examination-in-chief but under cross-examination she appeared to be deliberately obstructive, her unwillingness or refusal to answer questions causing great difficulty in the proceedings. INTERVIEW AT THE GATE.- ' “The cross-examination of Douglass was keen and after it had progressed some time counsel reverted to a previously mentioned interview at a gate when the representation in question was alleged to have been made. It was clear that Douglass was not conscious then of having said in the earlier part of the cross-examination what counsel claimed he had said. My notes were appealed to and showed no such statement. On the second day of the hearing Douglass was recalled and further cross-examined as to the alleged representation, when he said that it was extremely unlikely that the subject was discussed and that he would deny it. On the third day of the hearing the long-hand notes of a reporter were put in containing the following statement: ‘I said we get all money from the two arms and would pay Mrs. McKay £l5 a month wages.’ My notes of the crossexamination of the witness as to the interview at the gate are much fuller than those of the reporter. Just before the reference to paying . £l5 a month wages my notes show some words struck out which indicate to me the commencement of the paraphrasing of an abortive question. I think the statement as reported above may be the paraphrasing of something said by counsel in a question. I have no recollection of the statement as alleged and I have no doubt that Douglass, if he had made the statement as reported, would have recollected it and admitted it.

“I have found the alleged representation not proved, but it is clear that the plaintiff company intended to take all the security it could get. It intended to handle all the available income, and Douglass had no suspicion that. Mrs. McKay, who was present at the interview at the gate, had already pledged the income of one of the farms for £2OO. tion of the contract.” “Assuming that I am wrong and that the statement was made as alleged it does not in the circumstances help the defendant. Douglass first became aware of the encumbrances on the income on August 2, 1930, and he immediately informed defendant of the fact. Never from that day to the hearing of this action did the defendant protest, complain or do anything in the nature of repudiation o fthe contract.” The magistrate quoted from authorities to the effect that it was incumbent on a representee both to allege and prove that since the discovery of the truth he had exercised no right, and has taken no benefit, made no claim and recognised no interest or liability under or in respect of it. • \ . “There is no proof of repudiation or even of protest,” concluded the magistrate, “and the defendant must fail on that ground. As in regard to this alleged representation so in regard to the other alleged representations the defendant did not complain, protest OT do anything in the nature of repudiation of the contract.” Security for appeal was fixed at £iu 10s and the payment of costs.