TIMBER MERCHANT’S CLAIM.

Gisborne Times, Volume XXVI, Issue 2354, 21 November 1908, Page 6

TIMBER MERCHANT’S CLAIM.

AN INTERESTING CASE

THE VALUE OF AN ORDER

A oaso of interest to builders and timber merchants was heard by Mr. W. A. Barton S.M. yesterday, when H. J. Peacocke and Co. proceeded against Dr. John William Williams and Mrs. Sarah Williams, to recover in connection with an order accepted by defendants. Mr. J. R. Kirk, with him Air. H. Bright, appeared for the plaintiffs and defendants were represented by Air. J. AY. Nolan, with him Air. E. H. Mann. The statement of claim was that, on J une 11, 1908, one Wm. Crump gave an order in favor of plaintiffs drawn upon John Wiliiam Williams,, one-of the defendants, for £150; that the order was accepted, being worded as follows: ‘‘Please pay Alessrs. Peacocke and Co. £l5O and deduct same from moneys coming due to. me on account of contract for Airs. Williams’ residence, Whataupoko. W. Crump. 11 June 1908. .Accepted on Alls. John Williams, J. W. Williams,” and that plaintiffs have not been paid tiie sum of £l5O or any part thereof. Air. Kirk, in opening, detailed the circumstances, and claimed that the position was a most iniquitous one and one which, if it w r ero allowed to exist, would cause trade to stagnate in the towif; as then a man could got any amount of timber and work clone and refuse to pay one peiyiy. He held that the order accepted by the defendants was a bill of exchange, and quoted authorities in support of his contention. The acceptance of tho order by Dr. Williams was, he claimed, absolutely-unconditional, and rendered him, personally liable. The bill had been addressed to Dr. AVilliams and he alone could accept it. The very fact of accepting, it and adding the words ‘‘accepted on Airs. John Williams” did not free him from personal liability. It might be urged that the' order was an equitable assignment, but he contended strongly that it was a bill of exchange. ■ Hilary James Peacocke said that he supplied timber to (Jrump for Airs. Williams’ house on Whataupoko. He askedj Crump for an accepted order on the owner of the job. Crump agreed, and asked if the order would do a few days later, and if witness would let him have enough timber, to keep him going until he got the order signed. Witness supplied Crump with tfhe (timber and subsequently got an order from Crump on Alessrs Bamford and Pearce for £IOO. He sent the order on to this firm and received a ireplv back tfrota them agreeing to his suggestion to accept it. Crump continued to get timber and witness obtained another order for £IOO from him, which? he - also sent to Bamford and Pearce. He got no reply to this and shortly afterwards interviewed Air. Bamford in Auckland, who told him that they would see that- he was protected. Witness subsequently heard that Dr. Williams had paid some money to Crump, and he went, to see the latter who told him that Dr. Williams had not paid him but would do so in a lew days. Witness then went to see Dr.. V illianis and took the first order lor £IOO with him. Dr. Williams said he had paid the money to Crump and witness referred him to the orders, considering that the money ought to have been paid to him. Dr. Williams said he had not heard anything from Bamford and Pearce but that if ho had lie would have seen witness was paid first. Witness told Dr. Williams! that he did not want to sue Crump: or stop the contract, but that if Dr. j Williams would protect him he would wait a little while. Dr. Wil- ' Hams, on examining the orders, said that they were addressed to Alessrs Bamford a and Pearce and not to him, and that it would be better to have one addressed to him, and he would accept it. - \\ itness then went and saw Crump and asked for an explanation. Crump gave him an order on Dr. Williams for £l5O. He took the order because he calculated that timber to that amount had gone into the job. He took the order to Dr. Williams, who said that he would sec that it was paid. On witness’ suggestion, Dr. Williams accepted the order, which was returned to witness.. He had not been paid any part of the order, but Dr. Williams" had told him that the architect had said that they had keptplenty of money in hand. He saw defiend an t’s solicitor -regarding Hue order, and he (Mr. Mann) promised to see Dr. AVilliams. Later on he again saw Air. Alarm, who said that he was not prepared to say that Dr. AVilliams would guarantee payment of the order for £l5O. Later still Mr. Alann told him that Dr. AVilliams would not he responsible for the order until he saw how the work progressed. He instructed O’Meara, liis clerk, to present the order to Dr. Williams for payment. The amount of the timber supplied on the ground for the job was £l5O, and -at the time of the acceptance of the order about £4OO worth of work and labor had been put into the work. To Mr. Nolan: He supplied Crump with timber for other jobs as well, but did nob tell the architects that Crump was sound enough financially to carry the job through. He understood that the progress payments were to be in sums of not less than £3OO, and that he was to be paid liis money as it fell due. He did not know if the architects had certified to any progress payments. His foreman told him about payment having been made to. Crump. Edward Harding O’Meara said that about July 16tli he went to Dr. AVilliams’ house and presented the £l5O- - for payment. Dr. AVilliams said he did not admit any liability and “that he would not pay it. He pointed out that-the words were on the order, ‘•deduct same from moneys coming to me, etc.,” and said that Crump had .no money coming to him. Witness was referred to Mr. E. H. Mann, ■and was told that Crump had thrown up the contract, which was being relet, and if there was anything left at the finish of the contract Peacocke and Co. cou'ld get it. Dr. Williams also said that lie had paid Crump £2OO, hut that it was not really -a. progress payment, but an advance to Crump to pay wages. To Mr. Nolan; At the time Crump was bankrupt. .. , - George Laurence Evans, timber merchant, said that his supplied timber to tlw tfrtue sf w

in connection with Airs. AVilliams’ work. The amount had nob been paid -to his firm, i ? This was all tlio evidence for the ' plaintiffs, and Air Nolan claimed that plaintiffs must be deafly non-suited. His clients were sued on a bill of exchange which, being a conditional bill of exchange, was not really a bill of exchange at all. The wording was that the amount was to be paid out of money coming due, and not out of money already due. " It was clearly not a bill of exchange. Counsel quoted authorities at length defining bills of exchange. His Worship said that the whole question appeared to be whether the order could bo . deemed a bill of exchange or not. Air Kirk addressed the Court, contending that the authorities quoted by Air. Nolan wero out of date, and that the cases quoted by him were the leading cases of a much 'later date. Counsel further quoted 'authorities to show that the document referred to was a bill of exchange. His AVorship reserved his decision as to the 11011-suit asked for by counsel for the defence.