Fisher v Provincial Bank of Ireland

• Jurisdiction: Ireland
• Judgment Date: 07 February 1918
• Date: 07 February 1918
• Court: King's Bench Division (Ireland)

Provincial Bank of Ireland

and

Fisher.

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1918.

Principal and surety — Conditional undertaking in writing to pay debt of another — Promissory note — Guarantee — Indemnity stamp — Release of surety by giving of time to principal — Consent to giving of time — Evidence — Stamp Act, 1891 (54 & 55 Vict. c. 39), s. 33 — R. S. C. Or. XL, r. 9.

The defendant, amongst other signatories, signed an instrument whereby, in consideration of the plaintiffs advancing to P. and R. the sum of £140, he, jointly and severally with the other signatories, undertook to pay the plaintiffs the said sum, with the usual rate of bank interest, within six months from the date of the instrument. The plaintiffs subsequently advanced to P. and R. the sum agreed upon, taking from them promissory notes for the payment thereof, which notes were renewed from time to time without the express consent of the defendant. In an action by the plaintiffs against the defendant to recover the sum so advanced to P. and R. with interest:—

Held, by the King's Bench Division (Gibson and Kenny JJ.), (1) that the instrument was in its essence contingent and conditional, and was not a promissory note within the provisions of sect. 33 of the Stamp Act, 1891 (54 & 55 Vict. c. 39); (2) that the instrument was a guarantee for future advances, that the findings of the jury amounted to a verdict that the defendant consented to the giving of time to the principal debtors, that the defendant was therefore not thereby released, and that judgment should be entered for the plaintiffs.

Held, by the Court of Appeal (Sir I. J. O'Brien C., Ronan and Molony L.JJ.), affirming the judgment of the King's Bench Division on this point, that the instrument did not require to be stamped as a promissory note under sect. 33 of the Stamp Act, 1891. But held (Ronan L.J. dissentiente), reversing the King's Bench Division, that the instrument was a guarantee, that the plaintiffs had not discharged the onus of proving consent by the defendant to the giving of time to the principal debtors, and that the defendant was entitled to a direction at the trial.

Motion for Judgment.

The action was tried before the Lord Chief Justice and a special jury of the county of the city of Dublin, on the 2nd February, 1917. The plaintiffs claimed to recover £167 5s. 9d. as due to them under the following undertaking in writing, which was signed by the defendant and ten others:—

Stamp 6d.

24. 8. ‘16. To the Manager, Provincial Bank of Ireland, Ltd., Newry.

Sir,—In consideration of you advancing to Messrs. Porter and Rowland the sum of £140 we hereby jointly and severally undertake to pay you the said sum, with the usual rate of bank interest, within six months from this date.

Dated 3rd December, 1912.

The plaintiffs pleaded that the said sum of £140 was advanced by the plaintiffs to Porter and Rowland, and that no part thereof, or any interest thereon, had been repaid to them.

The defendant by his defence, in addition to traversing the plaintiffs' claim, pleaded that he was released by the plaintiffs giving time to their principal debtors, Porter and Rowland, in pursuance of a binding agreement, and without the defendant's knowledge or consent.

The following summary of the. evidence is taken from the learned judge's report of the trial:—

The manager of the plaintiffs' branch bank at Newry, Mr. Richardson, deposed that up to December, 1912, he knew nothing of Rowland and Porter. In that month Mr. Hunter Moore, a well-known solicitor in Newry, brought the document sued upon to Richardson's office. The defendant's signature and one other were then upon it. Witness then agreed, on the strength of the document, to advance £140, which he understood was required to provide the necessary security for costs in two actions which Rowland and Porter were bringing for alleged libel. Mr. Hunter Moore then took the document away with him for the purpose, as he stated, of getting additional signatures to it, and witness did not see it again until the month of September, 1916. It then had upon it nine additional signatures, but it was not stamped. Mr. Cowan, the solicitor acting on behalf of Rowland and Porter, came to witness's office, with Rowland and Porter, upon a subsequent day in December, 1912, and witness then paid each of the latter £70. Rowland and Porter then signed bills for £141 5s. Witness advanced the £140 on the strength of the document signed by the defendant. Cross-examined, Mr. Richardson stated that the bill was renewed seven or eight times, the first three renewals being for two months, and the last four for four months. Witness sent notice on the occasion of each renewal to the defendant's office by Rowland and Porter. Mr. Hunter Moore got the document stamped. On the 8th January, 1915, witness wrote to Mr. Hunter Moore the following letter:—

Dear Sir,

Bills of R. Rowland and Jos. H. Porter for £158 5s. 4d. lying here unpaid since 27th ult. The money was advanced on 5th Dec., 1912, to above parties on the joint guarantee of yourself and others, and, owing to the want of punctuality in renewing them as they fall due, I shall be glad, if the loan is to continue, some arrangement might be made that would avoid the bills going on every occasion overdue. We send a notice a week before maturity to the first name on the bill.

Yours faithfully,

(Signed) T. H. Richardson,

Manager.

Hunter Moore, Esq.

Mr. Hunter Moore deposed that he got the document from the defendant, and brought it to the bank in December, 1912. The defendant's signature was then upon it. The witness signed it himself in the bank, and then brought it back to the defendant. He never saw it again until July, 1916. Witness knew the bills were being renewed. On receipt of the letter of the 8th January, 1916, witness showed it to the defendant. Witness could not say what knowledge the defendant had of the renewals; but he frequently discussed the subject with him, and the defendant never suggested that he was not aware of them, nor did he ever deny his liability on the undertaking. The plaintiffs' case having closed, Henry K.C., on behalf of the defendant, asked for a direction, 1, because the document sued upon was in law a promissory note, and not now capable of being stamped; 2, because the plaintiffs by taking the renewals and not reserving their rights against the sureties had released the sureties.

The learned judge reported that he then asked did either side suggest any question of fact for the jury, whereupon Mr. Henry asked that the opinion of the jury should be taken on the question whether the defendant had knowledge of the renewals. The judge said he would ask the jury whether the defendant had notice of them, and to this Mr. Henry agreed.

The defendant, a solicitor practising in Newry, deposed that he was not identified in any way with the actions of Rowland and Porter at the commencement, but later was asked by the local Unionist Association to assist in procuring the amount of £140 to provide the required security for costs. Mr. Cowan was solicitor for Rowland and Porter. Witness was solicitor for Mr. M'Cullagh, who had brought a similar action for libel, and witness provided the £70 security for costs required in his case. He never knew of the renewal of the bills until June, 1914, and was never consulted about them. He knew that bills had been given originally. He told Porter towards the end of 1914 not to renew.

Cross-examined, witness deposed that the three actions were amalgamated about the 7th March, 1913. Mr. Cowan died on the 27th May, 1914. Witness provided all the money for the litigation. The cases were subsequently settled, and portion of the money lodged as security by Rowland and Porter was paid out to them, and by them paid to witness. He only got his outlay out of the money. When Mr. Moore showed him the letter of the 8th January, 1915, he said, “This is a bad business.” He told Porter not to renew, because he was annoyed that the cases should have been brought to Mr. Cowan and not to his firm. He knew there was a bill or promissory note signed at the start. If the question had been at any time directly brought to his mind, he would have known that the bank was not paid; but he did not trouble himself on this point, because he had assurances from the very highest political quarters that the claim of the bank would be paid.

Henry K.C. having renewed his requisition for a direction, the Lord Chief Justice left to the jury the question—Whether the defendant had notice of the renewals? The jury found that the defendant knew the bills were due, but that he got no notice prior to the 8th January, 1915, of the renewals.

The learned judge refused to enter judgment, and left the parties to move.

D. M. Wilson K.C. and Phelps, for the plaintiffs.

Henry K.C. and Williamson K.C. (Lowry with them), for the defendant.

The arguments were similar to those in the Court of Appeal.

Cur. adv. vult.

D. M. Wilson K.C. and Phelps, for the plaintiffs.

Henry K.C. and Williamson K.C. (Lowry with them), for the defendant.

Gibson J.:—

This case has been brought before us on cross-motions for judgment, neither party asking for a new trial. The evidence is loose and conflicting, with many conspicuous omissions of material points, and the only issue put and found by the jury thereon possibly might have been, but was not, challenged as inaccurate and ambiguous.

The argument at the bar was directed to the following points:—

1. Was the instrument a promissory note requiring to be stamped as such?

2. If it was such note, could it, not having been stamped as such, be sued on as any proof of a contract, subject to a 6d. stamp?

3. If the undertaking was a contract, was it a guarantee creating the relation of principal and surety between...