MAGISTERIAL.

Gisborne Times, Volume XXVI, Issue 2195, 20 May 1908, Page 2

MAGISTERIAL.

TUESDAY, AIAY 19.

(Before Air AV. A. Barton, S.AI.) A DISHONORED ORDER. Alfred Wade (Air Coleman) sued Herbert J. Brownlee (Mr Bright) for £53, due on a dishonored order. Tho case was previously before the Court, when Air Bright applied for a nonsuit -on the ground that the order was a bill of exchange. The nonsuit was not allowed. As plaintiff’s case had been closed Mr Bright briefly addressed the Court an behalf of the defendant, and denied that his client ever accepted personal liability; but accepted the order to give plaintiffs first claim on tho contract moneys duo. Herbert John Brownlee, architect, said that plaintiff was a sub contractor upon Air Strachan’s building under Messrs Chambers and Keam. The order in dispute was given at plaintiff’s request, and was drawn upon Messrs Chambers and Keam. Witness pointed out- that the order was not stamped, and that if he accepted it tho wording should be altered ~o that it should operate only upon Alessrs Chambers and Keam for work done extra to their contract. He suggested that ho should pay plaintiff and the other contractor the balance of tile money difference between what had been paid and 75 per cent-, of the tota.l contract price. Plaintiff agreed to this, but up to that time witness had not accepted the order. He told plaintiff to re-write the order according to his dictation and he would accept it, provided that Air. Straclian was protected. The next day plaintiff produced the order, and he took it and put it in his drawer. A few Jays afterwards he wrote the endorsement across the face of the document. He afterwards told plaintiff lie thought it would be best to have the provisional arrangements of the first interview endorsed on tho back of the order, and Air. Tustin, another subcontractor, took exception to tho conditions. "Witness told plaintiff there was no reason to refuse to sign the order, and he at first consented, but afterwards refused to do so as he said die wished to take legal advice. AY;tness accompanied plaintiff and Air. Tustin ot tlie office of Alessrs Cbrisp and Coleman. Air. Clirisp said to Air. rustin, “This is good enough lor you,”* referring to tho order, and advised him not to sign the endorsement. At the interview, Air. Tustin said the .-sub-contractor ■would not > e either witness or Air. Strachau go down ior the nionoy and witness replied that if Air. Strachau suffered in any way he also suffered, because he c -uld ! ot allow his client to suffer from any error of judgment on liis (Air. Brownlee’s part). Air. Tustin said that it the money was paid over then, he, and the other sub-contractors would be agreeable to sign an indemnity cgf inst any loss to Air. Straclian cr witness. Malcolm Straclian said Mat Ale.*sis. Chambers and Keam held a contract from him for additions to a Loise. There was not sufficient money due on the contract to uw-et all wages demands. The wages totalled £IOO. Air. Coleman, asked permission to call rebutting evidence on Air. Brownlee’s denial that he had admitted he was personally liable for tlie amount of the order.

J. D. Tustin, recalled, said that he was present at the consultation with Chrisp’s office, and Air. Brownlee said the order was worth 53 golden soverAlessrs. Brownlee and Wade in Air. eigns, that he would not see Air. Straclian pay, but would accept all responsibility. .Air. Coleman colled Air. Nicboll, ironmonger, of Gisborne, who said he was present at the interview between the parties in Alessr. Clirisp and Coleman’s office. Ho remembered a discussion on three orders connected with Alessrs Chambers and Keam’s contract. He heard the defendant say the orders were golden, and that he had fallen in the soup. Ho wanted Alessrs Wade and Tustin to sign the endorsement on the back of the order, and said he was watching tlio interest- of his client. He said he was personally liable for the orders. AVitness was quite clear that defendant did make that statement. He heard Air. Tustin offer to give defendant an indemnity if he paid the amount but on tho advice of Mr. Clirisp, withdrew tho offer.

Air. Bright said he would not argue the two first legal points, -which were that the document was a bill of exchange, but that Brownlee could not bo held liable as acceptor, because Air. Straclian was drawee. The claim was one of a bill of exchange. If there was any promise, it was only a promise to ask for the debt of another and was void under section 4 of Statute frauds. The other point was that there was no consideration binding the promise. On the facts of the easo there was never any intention that Brownlee should bo personally liable, lie was trying to protect plaintiff and an advantage hau been taken of any promise made. He asked that defendant be awarded judgment.

Mr. Coleman submitted that the claim had been correctly drawn. Even if the claim be within section 4 of Statute Frauds, plaintiff was entitled to judgment. Defendant by signing the document had made himself legally liable. Air. Brownlee had been a party to a promise and a contract, and had received consideration for liis work in tlio dispute. Wade, on defendants representation relied upon him to secure payment of the order.

liis Worship reserved liis decision. Two other eases uga.inst defendant, depended upon very similiar circumstances were adjourned until after judgment is delivered.