DISPUTE OVER DEPOSIT.

Wairarapa Daily Times, Volume 46, Issue 14200, 27 August 1920, Page 5

DISPUTE OVER DEPOSIT.

McGRATH V. FANNING. J I’DGAIENT FOR PLAINTIFF. At the Alagistrate's Court in Masterton this illuming, Mr. S. L. P. Free, S.AL, delivered judgment, in the case, ALiss AlcGrath v. Fanning, heard a few weeks, ago. In giving judgment His Worship said: — This is an action in which the plaintiff claims to recover from the defendant the sum of £SO money had and received by defendant as agent for plaintiff, otj in the alternative £SO damages for that the defendant acting as agent for plaintiff was negligent in that lie failed to receive or recover from one C. S. Blake the sum of £SO deposit, on the sale of, a property the defendant having falsely or fraudulently represented to the plaintiff that ho had received the said sum of £SO. The facts are that the defendant’s salesma.n who on his behalf had the conduct of the sale in question represented to the vendor, the plaintiff that he had. received on her behalf a deposit of £SO whereas the sum of £1 only had been so received by him.

It is contended by plaintiff’s counsel that the defendant is estopped from denying the receipt by him of the deposit of £SO. To establish as plea of estoppel by conducl or misrepresentation, the following must be established:—

1. There must have been a false representation or a concealment of ma ferial facts.

2. The representation must have been made with knowledge., actual or virtual, of the facts. .'j. The party to whom it was made must have, been ignorant, actually and permissibly, of the truth of the matter.

4. It. must have been made with the intention, actual or virtual, that the other party should act upon it. 5. The other party must have been induced to a<-t upon it.

The question is, do the facts in this case sustain t.he plea? « 1. There was a false representation that £SO had been received by the defendant. acting as plaintiff's agent as a deposit. 2. The 'representation was made by defendant’s salesman with a full knowledge of the facts. The plaintiff was ignorant of the facts until after this action was commenced and was wilfully kept in ignorance by the defendant to Whom repented application was made for the deposit.' 4. It was made with the intent that tin* plaintiff should act as if tho deposit had in fact been so made.

5. The plaintiff entered into an agreement for the. sale and purchase with one Blake upon tin* representation made by plaintiff's salesman that he held tin* deposit. The agreement contained a clause stating “The sum of £SO is this day paid by way of deposit to Messrs. Fanning and C 0.,” and there is a memorandum endorsed' on the agreement, “lacknowledge that Messrs Fanning ami Co. have received a deposit of £SO as above stated and agree to the, provision as to payment- of commission. (Signed.) 0. D. McKenzie, agent for Fanning and Co.”

1 am satisfied that the defendant is estopped from dein'iug the truth of the statement made verbally to pliantiff’s solicitor and endorsed on tho agreement, and that, the plaintiff is entitled to judgment for the amount claimed, £SO, with costs fills, and solicitor ’s £O.