Dollard Ltd v Brennan

CourtSupreme Court (Irish Free State)
Judgment Date08 November 1927
Date08 November 1927

Supreme Court.

Dollard, Ltd., v. Brennan and Others.

Practice - Trial - Right to jury - Restrictions imposed by Courts of Justice Act, 1924 (No. 10 of 1924), sect. 94 - By what Judge the right to have a jury is to be determined - Liquidated sum claimed - Discretion of Judge - Jury where necessary or desirable for proper trial - Appeal.

Motion on behalf of the defendant, Bartholomew J. Brennan, for an order that the action be tried before a Judge and common jury of the City of Dublin, on the ground that the issues in the action made it necessary and desirable that it be tried by a jury.

The plaintiffs, the Dollard Printing House, Dublin, Ltd., issued a specially endorsed writ claiming the sum of £353, for money paid by them for the defendants and at the defendant's request, being the price of goods ordered by the defendants in the name of the plaintiffs from Messrs. Brindle & Son, Ltd., Preston, and which goods were paid for by the plaintiffs but were delivered by the said Messrs. Brindle & Son, Ltd., to and used by the defendants. The goods were ordered by the defendant B. J. Brennan (who was at the time the plaintiffs' manager), from Messrs. Brindle & Son, Ltd., of Preston, and delivered by them to the mills of the other defendants, the Killeen Paper Mills, Ltd., a company of which Brennan was a director. The plaintiffs moved for final judgment, and for the purpose of the motion an affidavit was made by George P. Orpen, the plaintiffs' secretary, in which he verified the cause of action and stated that the defendants had no defence. An affidavit in reply to this was made by the defendant, Brennan, on behalf of himself and the other defendants, in which he denied that the money claimed was due to the plaintiffs, and stated (inter alia) that among the businesses carried on by plaintiffs was that of supplying paper bags to traders as wrappers, and that the Killeen Paper Mills, Ltd., were manufacturers of such paper bags, but were not manufacturers of the particular paper from which they were made; that is to say, the Killeen Paper Mills, on receiving reams of the paper, manufactured the same into paper bags, and received payment at a recognized rate for so doing. He stated that he was manager for the plaintiffs from the year 1920 until 1st September, 1926, and was a director of the defendant company since it was started. That about 1st June, 1926, Mr. J. P. Grace, who was paper warehouseman and buyer for the plaintiffs, gave an order to the defendant company, through him (Brennan) to make up into bags a large quantity of paper for the plaintiffs. That the plaintiffs ordered the paper from Messrs. Brindle & Son, Ltd., and directed that it be delivered at the Killeen Mills, and that the paper was ordered by and belonged to the plaintiffs, and that he was informed by Messrs. Brindle & Son, and believed that the invoices for the paper were sent to the plaintiffs. He further stated that the Killeen Mills made up certain quantities of the paper and delivered them to the plaintiffs, and that certain quantities had been made up by them and were ready for delivery, but that the plaintiffs would not accept delivery of same, and that the balance of the paper remained with them unmanufactured. And he claimed that plaintiffs owed the Killeen Mills charges for the said work. A replying affidavit was made by Mr. Joseph Dollard, managing director of the plaintiffs' firm, of which the following are the material paragraphs:—

"2. The said B. J. Brennan was, until the 1st day of September, 1926, manager of the plaintiff firm, and was also, as I am informed and believe, a director and practically full proprietor of the defendant company. The records of registered companies show that 100 preference shares and 1,400 ordinary shares were allotted by the defendant company; and of those, the defendant, B. J. Brennan, holds the 100 preference shares and 1,398 of the ordinary shares.

3. During the month of July the said B. J. Brennan was prevented by illness from discharging his duties as manager of the plaintiff firm, whereupon I undertook his duties. While discharging these duties I had occasion to examine the accounts and invoices of my firm, and discovered two invoices furnished by Messrs. Brindle & Son to my firm, upon which, marked with the letters 'A' and 'B,' I have endorsed my name at the time of swearing hereof. As in the ordinary course of business my firm never purchased paper in the bulk for manufacture into bags, but purchased the manufactured paper bags from Messrs. M'Crea & Co., Belfast; Smith, Anderson & Co., of Fife; or other paper bag manufacturers, and as the two consignments mentioned in the invoices exhibited were of paper in bulk, and were to be delivered at the premises of the defendant company, with whom my firm never had any dealings, I made further searches, and found copies of letters written by the defendant, B. J. Brennan, to Messrs. Brindle & Son on the 23rd day of February, 1926, and 8th April, 1926, respectively, and a reply of Messrs. Brindle & Son thereto, dated the 1st day of March, 1926; upon which, tied together, and marked with the letter 'C,' I have endorsed my name at the time of swearing hereof. Those letters refer to the paper included in the invoices exhibited. It will be seen from these letters that the defendant, B. J. Brennan, represented to Messrs. Brindle & Son that the plaintiff firm had bag-making machines installed at the premises of the defendant company. This representation is false, as my firm have no bag-making machines installed at the premises of the defendant company, and have no interest whatever in the company.

4. The method of business of my firm is that accounts due to paper manufacturers, such as Messrs. Brindle & Son, are passed by the manager for payment, and cheques for the amounts so passed are signed by the directors. By passing the accounts for those two consignments of paper, which were ordered in the name of the plaintiffs and delivered to the defendant company, the said B. J. Brennan secured payment for them by the plaintiffs.

5. On further investigation, I discovered that Messrs. Nordbery, Ltd., and Louis de Maeyer, Ltd., who are also paper manufacturers, had furnished to my firm invoices for large quantities of paper supplied and delivered to the defendant company. I have repudiated liability for these goods, and I assume that same have been paid for by the defendants.

6. As a result of the foregoing and other matters, the plaintiffs dispensed with the services of the defendant, B. J. Brennan. I never knew until the 7th day of...

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