CLAIM FOR SUM OF £2000 FAILS.

Star (Christchurch), Issue 18641, 19 December 1928, Page 8

CLAIM FOR SUM OF £2OOO FAILS.

DOMINION MOTORS LTD. V. JOHN AND S. J. FLEMING

Judgment in the case Dominion Motors, Ltd. v. John Fleming and Sarah Jane Fleming for a claim of £2OOO was delivered by his Honor Mr Justice Adams in the Supreme Court this morning. Counsel for the plaintiff company were Sir John Findlay, K.C., with him Mr Nicholls. Mr Upham appeared for John Fleming, and Mr Loughnan for Sarah Jane Fleming.

The claim was one for £2OOO from John Fleming, or in the alternative Sarah Jane Fleming. It was alleged that George Wilcox was indebted to the plaintiff company for £4OOO in September, 1927. lie promised to obtain the guarantee of his father-in-law, John Fleming. Two bank guarantee forms had been returned with the signature of S. J. Fleming. It was alleged that both defendants conspired with Wilcox to defraud the plaintiff by representing that the said guarantee was signed by the defendant John Fleming; that the defendant Sarah Jane Fleming is not a substantial person and never could have paid the amount of the guarantee; that Wilcox was adjudicated bankrupt in July, 1928; that relying upon the said representation the plaintiff supplied goods to Wilcox and has forborne to compel payment of his debt and has in consequence suffered damage to the extent of £2OOO. On this cause of action the plaintiff claims from both defendants £2OOO damages. The judgment was as follow*: — There can be no pretence that the defendant John Fleming was a party to the alleged conspiracy and he can be made liable only if the case is brought within the common law rule that a husband is liable to answer for his wife’s torts. It was agreed that argument of that question should be held over pending the decision on the facts which I have now to consider. “ At the conclusion of the argument I intimated that I was strongly impressed with the candour and sincerity of the defendant Mrs Fleming, but reserved judgment in order to re-examine her evidence with the assistance of the arguments of counsel. In the result that impression has been confirmed without modification. lam satisfied beyond doubt that her intention in signing the document at the request of Wilcox was entirely innocent. She had no suspicion of Wilcox nor of the fraudulent use which might be made of the papers she signed. The judgment proceeded;—“lf she trusted Wilcox too much, the same may be said of the plaintiff. It is also evident that had the plaintiff believed that the document was nothing more than an offer of Mrs Fleming’s guarantee it would not have been accepted. Moreover, the only authority which Wilcox had from Mrs Fleming was to deliver the document she had signed to the plaintiff as an offer of her own guarantee. But his fraud was conceived when the opportunity was presented .to him by the question of Mrs Fleming when she asked him if her signature would be all right as Mr Fleming had refused to sign. Her signature was therefore obtained in the course of the fraudulent scheme and the offer was tendered and accepted as the offer of John Fleming. “ For the reasons I have given I am of opinion that the plaintiff is not entitled to judgment against either of the defendants. The action is therefore dismissed. The defendants properly severed in their defences and each defendant will therefore have judgment for the costs of the action according to scale.