CHATTELS CLAIM FAILS

Taranaki Daily News, 19 June 1934, Page 11

CHATTELS CLAIM FAILS

RETIRED INSPECTOR PLAINTIFF. RESERVED JUDGMENT GIVEN. Reserved judgment for Ivy Marguerite Martini, married woman, New Plymouth, in the claim in which Ben Tippins, retired inspector, New Plymouth, sought possession of certain chattels (furniture), or in the alternative £7O representing the amount of an advance made on the chattels plus interest and insurance, was given by Mr. W. H. Woodward, S.M., at the Magistrate’s Court at New Plymouth yesterday. No costs were allowed. Mr. J. H. Sheat represented Tippins and Mr. C. H. Croker Mrs. Martini. “I think it is clear that the transaction was a loan and not a sale,” said the magistrate in his judgment. “The circumstances under which the piano was included in the list of chattels indicate that there was no sale but a colourable arrangement to save the chattels from distress by the landlord. The £5O paid by Tippins was a quite inadequate consideration for furniture insured for £l5O. “Mrs. Martini’s husband, who is not the man to accept responsibilities which he is not liable for, signed promissory notes for the £5O plus interest and insurance, and Tippins accepted this, the transaction being a loan, for the repayment of which Mrs. Martini and her husband were both liable. The question arises whether it was a loan to Mrs. Martini with her husband as surety, or a loan to him, for which she went surety and pledged her furniture. “The furniture belonged to Mrs. Martini and the money advanced by Tippins was paid to liquidate a debt under a bill of sale, in which Mrs. Martini was the principal party and her husband was the guarantor. That, however, raises io irresistible presumption that the advance . was made to Mrs. Martini. Mrs. Martini says the transaction was made in the form of a sale in order to save her furniture from distraint, and Tippins agreed that this was so. I have r. doubt that it was his charitable intention to do Mrs. Martini a good turn in. this way, while at the same time securing himself. Mrs. Martini, whose evidence struck me as particularly lucid and detailed, further says that plaintiff refused to give hextime to find the money for the bill of sale debt or to see a solicitor. This she ascribed to a conspiracy between Tippins and her husband to defraud her. I do not think she is right in this. I think it is in character with Tippins’ charitable intentions towards her, and with an anticipation on his part that her husband would pay, so that it would probably be immaterial to her whether she signed over the funiiture or not. That I think is the reason why he pressed her to sign. “Mrs. Martini goes on to say that Tippins said to her, ‘Understand, Missus, I don’t want your fnrniture,’ and that her husband could pay when he was able. I believe her evidence here. It is again consistent with his desire to protect her furniture for her. I think that plaintiff in saying this really allowed his goodwill towards Mrs. Martini to get the better of his judgment, and, in effect, committed himself to treating her as a surety Only for the money he was lending. Mrs. Martini’s husband seems to be a man of considerable persuasive powers. He had been a somewhat intimate associate of Tippins, and I think it quite probable

that in spite of his record he had persuaded Tippins he would be able to pay, and that it would probably be unnecessary to resort to the furniture. “Tippins’ subsequent attitude seems also to have been consistent with, his regarding the husband as the principal debtor. A solicitor formerly employed by Tippins did indeed demand the furniture from Mrs. Martini, but Mrs. Martini said Tippins told her that he had not instructed the solicitor to do so, and in fact the demand was not repeated by that solicitor. Mrs. Martini further said that Tippins called at her home and demanded of her husband what he was going to do about the money and accused him of wasting enough money to pay his debt two or three times over. At that time Mrs. Martini and her husband were at variance. Tippins admitted calling at the house and a conversation with Mrs. Martini which showed him sympathetic towards her in her differences with her husband. “I am forced to the conclusion that by his action and words at the time he made the loan and afterwards, Tippins has out of goodwill to Mrs. Martini placed himself in the position of being precluded from treating her as the principal debtor. I conclude that the loan was made to her husband, and that she was a surety only for its repayment. “It is not disputed, and cannot, I think, be disputed, that the legal effect of the acceptance from the principal debtor of promissory notes in satisfaction of the debt without reference to the surety results in the release of the surety’s obligation. Therefore judgment will be for Mrs. Martini.”