VALIDITY OF AN ORDER

Gisborne Times, Volume XXVII, Issue 2570, 3 August 1909, Page 2

VALIDITY OF AN ORDER

— lll PEACOCKE V. WILLIAMS. ' JUDGMENT FOR DEFENDANTS. Mr. W. A. Barton S.M. gave judgment in the Magistrate’s Court, yesterday morning, in the long-standing case of Peacoeke and Co. v. Dr. J. W. Williams and Sarah Williams, claim for £l5O on an order alleged to have been accepted by defendants. The case arose out of the bankruptcy of W. Crump, a builder, who held a contract under Mrs. Williams for whom Dr. Williams was acting. Mr. L. T. Burnard appeared for the plaintiff, and Mr. J.-W. Nolan instructed by Mr. E. H. Mann for defendants. Die Magistrate, in delivering judgment, said: The plaintiff claims to recover from defendants the sum of £l5O upon the following statement of claim:— The plaintiff says:— 1. That on the 11th day of June, 1908, one William Crump gave an order in favor of the plaintiffs drawn on John William Williams, one of the defendants for the sum of one hundred and fifty pounds (£150). 2. That on the said 11th day of June, 1908, the said John William Williams accepted'the Gaid order, such acceptance being in the form hereinafter set out. 3. That such order and acceptance were in the words and figures following: “Gisborne, New Zealand. —Dr. Williams, Gisborne, dear sir, —Please pay Messrs H. J. Peacoeke and Co. the sum of one hundred and fifty pounds stg. (£150) and deduct same from moneys coining, due to me on account of contract- for Mrs. Williams’ residence, Whataupoko.—W. Crump. 11-6-08. (stamp, W.C.)” accepted on behalf of Mrs. John Williams. —J. W. Williams.—June lltli, 1908.” 4. That- the “Dr. Williams” referred to in the said order is the defendant John WTlliam Williams. 5. That “Mrs John Williams” referred to in the acceptance is the defendant, Sarah Williams. 6. That the plaintiffs have not been paid the sum of one hundred and fifty pounds (£150) or any part thereof, and the same is still due and owing. Wherefore the plaintiffs claim to recover from the defendants the sum of one. hundred and fifty pounds (£150). Four grounds of defence have been raised: — _ 1. That defendant, John W illiam Williams, is not liable to pay the amount of the order, as it was accepted by him on the condition that the amount was to be naid by him out of moneys falling due for progress payments, on the architect’s certificate, in connection with a contract entered into between one W illiam Crump and Sarah Williams for the erection of a house.at W 7 liataupoko, as no nayments became due to Crump after tWdato of the acceptance of the order 2. That assuming the instrument to be a bill of exchange there was no consideration for the acceptance, and that therefore the defendant is not liable on that ground. 3. That defendant John W illiam W illiains having accepted the order on behalf of Mrs John Williams, he is not perscnallv liable on it. 4. That Sarah Williams should not have been joined as a defendant in tin's action, the order not being drawn upon lier. and that John William Williams had no authority to sign acceptance on her behalf. In reference to the first ground of defence:This case came before me for hearing on the 28th day of November, 1908, and after taking the evidence on behalf of plaintiffs, defendant moved for a nonsuit, which I allowed, on the ground that the order sued upon did not come under the statutory definition of a Bill of Exchange, as defined by “The Bills of Exchange Act, 1908.” Against this decision the plaintiffs appealed, and the case came berfore His Honor Mr Justice Edwards, and it was decided that the instrument standing unexplained was a bill of exchange within the statute. What I understand the judgment to moan is that in the absence of an explanation of. the circumstance under which the acceptance was given the document«avas a bill of exchange. An explanation of the circumstances has now been given, which shows, to my mind, beyond all doubt, that the condition under which the order was accepted was that the amount was to be paid by defendant John William Williams out of moneys coming into his hands under Crump’s contract. It is perfectly clear from; the evidenep and surrounding circumstances that Dr Williams never intended to make himself personally liable for the amount by the acceptance of the order, and, it is quite - obvious from the plaintiff’s actions that they did not, at the time of the acceptance, consider that Dr Williams was taking upon himself any personal liability. I have not the least doubt but that plaintiffs fully understood, and intended that the amount was to be paid out of moneys falling due to Crump under the contract, and not otherwise. It is clear from the evi- ’ donee that no money was due Under the contract at the time the order was given, and that no payments became due after the acceptance of the order. As to the second ground of defence, I am .of the opinion that, there was no consideration for . tile acceptance of the order.' Neither of the defendants were under any obligation ter the plaintiffs at the time of the acceptance, and it is clear from the evidence that they had nothing whatever to gain by its

acceptance. Having found in favor of defendant upon the first and second grounds of defence, I do not deem it necessary to consider the other questions raised. I am therefore of opinion after careful consideration of the evidence and the authorities quoted, that plaintiffs are not entitled to recover in this action. Judgment accordingly ■ for defendants, with posts of Court. Mr Nolan applied for separate cost*, which lie considered defendants were pa eh equally entitled to recover. Mr Barnard considered that the usual practice should be followed, contending that when two defendants wore represented by the same counsel, separate costs were never granted. His Worship, after hearing counsel, refused the application, and assessed costs at £l2 2s, fixing the amount of security to be given in the event of appeal at £SO.