MAGISTERIAL.

Gisborne Times, Volume XXVI, Issue 2200, 26 May 1908, Page 1

MAGISTERIAL.

WADE V. BROWNLEE,

JUDGMENT FOR DEFENDANT

At the Magistrate’s Court on Saturday, Mr. AV. A. Barton, S.M., delivered judgment as follows .in the case of Alfred AA’aclo (Mr. T. Alston Coleman) v. Herbert John Brownlee (Mr. H. Bright):— The plaintiff claims to recover from the defendant tho sum of £53 upon tho following statement of claim.: Tho plaintiff claims from tho defendant tho sum of £53, being the amount of a dishonored order accepted by the defendant, which order .is in tho words and figures following—Gisborne 20th March, 1008. To Mr. Straclian, AVainiata Valley. Please pay tho boa’ror tho sum of £53, and stop the said amount out of moneys coming to mo on account of our contract dated October'l2, 1907, for the erection: of buildings'for you in AVainiata A r alley and work done by mo for you incidental and oxtra to the said contract.—John Chambers, for Chambers and Kcam, builders, Gisborne. Received and accepted, 20— Herbert J. Brownlee, architect. The short.facts of the caso are as follows: Messrs Chambers and Kearu, builders, entered into a contract with one Straclian for tho erection of certain buildings at AVaimata, and tho contractors became indebted to the plain-, tiff in tho sum of £53, tho amount of the presont claim, and gave tho plaintiff an order on Mr. Straclian for tho amount. Plaintiff presented the order to defendant, wlio was tho architect for the buildings, which lie ac- : cepted. Plaintiff says that .the acceptance was conditional, viz., that it' was subject to prior claims by workmen for wages. Tho order is dated 20th March, 1908, and was accepted by defendant tho Same day, as is shown by his endorsement thereon. Some timo subsequent he admitted in the presence of several persons in tho office of Messrs Chrisp and Coleman, solicitors, his personal liability upon, tho order. Defendant denies having made such an admission, but I cannot disbelieve the evidence of plaintiff and his two witnesses, who say most positively that he did. Upon the law the defendant contends: (1) That the order tho subject of this action, which tho defendant purports to have accepted, is a bill of oxenange within the meaning .of the Bills of Exchange Act, 1883, but that lie cannot bo held liable, as an acceptor, as Mr. Stfiachan, and not defendant, is the drawee. I have already ruled that in my opinion tho document is not a bill of exchange, and I have no reason to alter my opinion upon that question. (2) That if defendant’s acceptance is a jiromise, it is a promise to answer for tho debt of another, and is void under section 4 of the Statute of Frauds, Birkmyr v. Darnell, vol. 1, Smith’s Leading Cases, page 334. (3) That there was no consideration binding any promise to pay, and that the agreement, if agreement there was, is nudum pactum, llann v. Hughes, 6 Ruling Cases, pages 1 and 3. After looking into the authorities quoted, I am of opinion that plaintiff is not entitled to recover, on the ground » that tho acceptance of the order by the defendant amounts to a promise to pay, but such promise Was without consideration, and must therefore be regarded as nudum pactum, and void. There was no obligation for defendant to have accepted the order, end -it was clear'’from the evidence that lie could derive no advantage or convenience from the acceptance, and I am at a loss to understand why he did so It is to be regretted that the defendant did accept the order, as by doing so he led the plaintiff to believe that ho would see the amount paid, and had ho not done so, it is possible that plaintiff would have sought some other remedy to recover the amount thereof. For the reasons given, judgment will bo for the defendant, but in Tall tho circumstances I do not think it is a case in which- defendant should be allowed costs.