SUPREME COURT.

Wanganui Herald, Volume XXIII, Issue 6800, 11 May 1889, Page 2

SUPREME COURT.

* (Before His Honor Chief Justice Sir James Prendergost.) PEIDAy. BANK OP ATJSTBAtASIA T PATBA BUILDING society, £1229 6s sd. On resuming at 2 o'clock, tho first witness was .Alexander V. Webster, manager of the Bank of Australasia, who stated when he took over the Bank in August 1887 the Building Society owed about £1250. In August of last year, Mr Adams colled to see liim with reference to the payment of some ground rents, and he asked him some questions as to the balanoe of the properties, and whether, the Society should not face the general* question of realising all the securities. Told him he (Adams) should himself urge it on for his own sane, and the sooner he did so the hotter for himself. When he spoke about the co-sureties Mr Adams snid he and others of tho sureties (he could not swear Mr Adams used the word ' sureties,') had no personal liability in connection with it. He at once replied that all of them were personally liable, and expressed surprise that Adams should take up such a position at that stage. Mr Adams then explained that they only signed the bond upon Mr Nor- | man's statement that it was a mere matter of form. As a further reason why they wore not liable, ho said that he nnd others who signed it had had no consideration for to doing. Witness naturally refused to believe this. In support of his statement, Mr Adams eaid he had an opinion from Sir Bobert Stout that thoy were not liable, and that he had made the same remarks as to nonresponsibility to each of the previous managers. He appeared to be in earnest about the matter, and witness said he would hare to report it to his inspector. Told him he was to consider himself liable, and that the account would be stopped. j Mr Adorns referred to the fact that they hud had no fresh money after the bond wos signed. This was not correct, as the total dobits after the bond had been £2800, whereas whon the bond was signed the overdraft was £2300. There were no more debits after this conversation. After taking advice, ho told Mr Adams they would probably require a general mortgage over their deeds, as provided for by the lien,and he expressed his willingness to give any security the Bank wished over their assets. Mr Adams met him the day after the claim was served on him, and asked what it nil meant, and witness told him it was made because he had repudiated personal liability. Mr Adams said he did not wish the Bank to lose money on the Society. Advised him to call a meeting of his co-sureties and writs a letter to the Bank asking for time, and when thoy parted witness thought Adams was favourable to doing so. In a conversation with Mr Adams shortly after ho (witness) went to Patea he bewailed the foot that they had been led into the Society by Mr Norman. Believed if the assets were realised they would bring £600. Mr Smail told him he had no recollection of signing the bond of 1882. Cross-examined— Was ■ certain that in each of his half-yearly reports on Mr Adams he mentioned that he was liable for the Society's ' bond. The bond was not mentioned at the first interview with Mr Adams. His impression at the timejiA that there was no point in his remark, thaT Norman had led him into it, if he did not refer to personal liability. The liability on the bond really narrowed itself down to Mr Adams as far as the Bank was concerned. This closed tho case for the Bank, and the next question was settling the issues. Before Mr Barnicoat proceeded with his addross to the jury, Mr Ktzherberfc asked His Honor to note that he asked that the jury should be directed to find for the plaintiff on the ground that the evidence did not disclose a defence to the 'bond. Mr Ba'rnicoai then went on with his address, and contended that it was dear that one of two things must be true— either Mr Norman had made an actual misstatomerit, or that yrhen the question of personal liability was raised he so fenced and evaded the question as thafc they were induoed to think they were not personally liable. Allusion was made to the worthless character o£ tho precious bond, and to the likelihood of Mr Norman desiring new and betternames, owing to,the fact that the society wm not in a good position. The evidence of Mr Norman and Mr Adams was alike on the point of Mr Adams refusing to have anything to do with the bond if it was to render him personally liable, -and Mr Nomura also recollected that at the Director's meeting the question of personal liability was again raised. The question then remained by what means was tiiat objection removed. Hosubmitted^ftor alluding to the small interest most of the Directors had in tho society, that it was a natter of credibility. "Mr Barnicoat spoke for half an hour. Mr Ktzherbert followed and opened by allluding to the great importance of the case as affecting business circles elsewhere throughout the colony, and therefore he askeS the jury to be very careful in considering their verdiot. Coming to the evidence of the directors he characterised it as agreeing in a most wonderful manner. It was made up of three or four leading phrases which they had had over and over again with •' damnable iteration." It was » farce to say that they thought the bond was to bind to the Bank the assets of the Society, because they wore already bqund by a lien, Mr Ktzherbert then wentthrongh portions of the evidenco.of Mr Adams and Mr Smaill to show that they apparently knew all along that there was a personal liability. He believed Mr Norman hatt accurately stated the position 'when he said the whole of the defendants' evidence was based on a distorted account of what had taken place. They had apparently gone over it by themselves so often that at length, they hail persuaded themselves it was true. Mr Ktzhetbert concluded his remarks, which, lasted 2S minutes, by again impressing on the jury the importance of the case. His Honor first settled the issues and then proceeded wifli his" summing up, which took up two hours, and the jury retired at 6.15. At 7.25 they returned with the following answers : — (1) Did Mr Norman represent to the defendants "immediately before the bond was signed ' ' ' . (a) That they would ' not ' incur any pßrsonalliability whatsoever by doing so P—^ Yes. ( ' (b) That the said bond was a mere matters of form ?— Yes. (o) 'That tho defendants Vouty never bo called upon to pay any money under tho% said bond?— Yes. ' ' * (d) That if the defendants signed thesaid bond they would sign only as directors of the Sooiety and for the purpose of binding the said Sooiety and pot for the purpose of rendering themselves personally liablo for »ny purpose whatever ?— Yes. (2) Were iuoh" representatipns untrue ? —Yea. (3) Were such representations untrue to the knowledge of Mr Norman?— No. (4) Were such representations made by Mr Norman with the intent that they should be acted upon by the defendants by executing the said bond ?— Yes. (a) Were such representations made by Mr Norman without believing that they were true ?— No. ' (b) Or without reasonable grounds for believing they were true ?— No. (5) Were the defendants induced by such representations to execute the eaid bond? -Yes. His Honor consented to defer, further mention of the case till next morning) and the Court then adjourned. SATOTDAY. With rogurd to this case Mr Rteherbert said it was in a confused position at present, and he and Mr Barnicoat had agreed to ask that it should bo resorved for further consideration, and be argued in Wellington at some future time by mutual content. Ml 1 Barnicoat proposed to move for judgmentj udgment or in tho alternative for a new trial. Mus McGbsqob t. Sun— £3oo. Mr Barnicoat isked that judgment be entered up in McGregor v. Sun Fire Insurance for £800. Mr Ktzherbert was quite i agreeable to this course, but thought that ' interest could hardly be allowed, that however, he left to His Honor. He thought there were grounds for askiug that costs should nob bo given against the Company, U there wore elements of suspicion whioh warranted them in bringing the case. His Honor agreed,and said this was different from pome insurance coses where Companies were ill-advised in declining to pay. Mr Rtzherbcrt thought tho Company had been misled by Mra MoGrcgor'a own evidence at the inquest, and the verdict really amounted to not proven. Judgment was then entei ed up for i 800 with interest from January 10th lill judgment, and costs on tho middle, scale..

As to the Phoenix Company's risk, Mr Barnicoat mentioned that a settlement had been arrived at for £75 in full of tho olaim. He found there waa do doubt they bad a good legal defence on the ground that the polioies in the Northern and the Sun vrere not noted. No blamo was attachable to Mrs McGregor in the matter, but the J head office of the Phoenix would nave thought they had a single insurance. They had, therefore, good grounds for thinking they wore not liable to pay. DIXON T. BCXC. Mr Esam for the plaintiff and Mr Barnicoat for defendant. This was a claim for the enforcement of a contract for tho sale of a section of land. It seems that in 1878 an arrangement was entered into for the purchase of the land, but in 1881 after certain payments had been made trouble arose about the title and the payments were discontinued, andDixon hod to leafa the land.