A DISPUTED CLAIM.

Gisborne Times, Volume XXVI, Issue 2361, 30 November 1908, Page 4

A DISPUTED CLAIM.

THE MAGISTRATE'S RULING

At the .Magistrate’s Court; on Sa+ll rJav Mr W. A. Barton, ».M., delivered Ins ruling on the point, raised by Mr J. W. Nolan tor bho defendants an the case of Pea cocke tamd Co. <Mr J ; R- , ' J. AV. and Mrs S. Williams, o.ann foi £l5O, the amount of an order claimed to have been accepted by Dr \\i - liarhH on behalf of his mother as 'follows : —“ln reference to the non-suit point -raised the question winch I am called upon to decide is whether the document sued on comes within the statutory definition of a bnl of exoliaixKe 'as defijiCKl by luic 13uJft or change Act, 1885, which enacts that a bill of exchange is an unconditional order in writing to the person to whom it is addressed to pay a certain sum of money. The third subsection enacts that an order to paj out of a particular fund as not unconditional within the meaning of t/)is section, hut an unqualified order to pav, coupled with an indication ot the particular fund out of which the drawee -is to -reimburse himself, etc., is unconditional. The short ‘facts of the ease are as follows: One William Crump entered into -a contract with Mrs John Williams for the erection of a dwelling house at Whataupoko, and the contractor procured from plaintiffs certain timber to the amount of £l5O and upwards for the iiurpo.se of the contract. After some of the material had been supplied one of the plaintiffs saw the defendant and it was agreed that-an order should he given by Crump upon defendant for the sum of £l5O. The order was drawn up and signed by Crump, and accepted by the defendant. The following is a copy of the order: —Gisborne, New Zealand, lltli June, 1908. Dr. Williams, Gisborne. Dear Sir, —Please pay Messrs H.-J. Peacocke and Co. the sum of one hundred and fifty pounds* moneys coming to me on account of contract for Mrs. Williams’ residence, Whataupoko. Stamp. 11-6-08. It is clear to my mind upon the evidence that the instrument intended that defendant should pay to plaintiff the sum of £l5O out of moneys doming due under the contract. It- is not suggested that there is any money due to Crump at the date of the order, neither is there •any evidence that any money became due under the contract at any time -'after the acceptance of the order by default. I am of opinion after carefully considering authorities quoted, that the words in the document “and deduct same from moneys coming to me on account of contract for Mrs. - Williams’ residence, Whataupoko,” amounts to a condition, and that the instrument is an order to pay out of a particular fund, viz., out of moneys to become due under contract, and that being so, the document is not, in my opinion, a bill of exchange within the definition-of the Bills of Exchange Act, 1883. Plaintiff will therefore be nonsuited with costs £8 1 is. Mr. J. Kirk said the matter in point was an important one, and he gave notice of appeal.