"to considerable loss and expense in removing and excavating the said earth, and remedying and making good the damage "and injury caused by the said collapse." The defence was that the collapse was caused by the execution of the works by the plaintiff in a negligent and unskilful manner; but this was not relied upon in the argument, the main defence being that the incident was one for which the defendants were not liable, and that there was no implied guarantee with respect of it. The evidence was that at some time previous there had been a slip in the earth above the tunnel, leaving a cavity which had been packed with pine scrub, limbs, and logs, and that this gave way when the timbering of the tunnel was being poled up, and caused the collapse. There was also some evidence that it would not have happened but for an excessive rainfall. It was contended on behalf of the plaintiff that the existence of this cavity was a latent danger of which the plaintiff had no knowledge, while the defendant's Engineer had; and therefore that there was an implied warranty against it. I am of opinion that there was no such warranty. The plaintiff was informed that the thickness of the brickwork was to be increased; he knew that to effect this the woodwork would have to be what is termed "poled back"; and he also knew that this operation was a somewhat dangerous one under the circumstances, the ground being treacherous. In the Court below Mr. Justice Edwards said, "The plaintiff was not bound to "perform extra works not contemplated by McWilliams's con"tract; and, though brickwork was contemplated by that contract, still I think that additional brickwork might be "ordered under such circumstances as to show it was not "within the contemplation of the contract. In that case, 66 86 66 66 pre however, the plaintiff should have refused to perform the extra work, unless under a new contract. The order purported to be given in pursuance of McWilliams's contract, "and the plaintiff began the extra works ordered without objection, and continued them without objection, until the contract was taken out of his hands. This, I think, "cludes him from claiming to be paid in respect of the work, "or any loss connected with it, any larger sum than appears "to be owing in respect thereof under the schedule to McWil"liams's contract. At all events, the finding of the jury that "the works were within the contemplation of McWilliams's "contract is conclusive upon the matter." C.A. 1900-1. SLOWEY V. LODDER. This view of the plaintiff's claim is entirely in accordance with the judgment of the House of Lords in Thorn v. The Mayor, &c., of London(1), which, in my opinion, decides beyond question that in such a case as the present there would be no implied warranty. The result is that judgment should, in my opinion, have been for the plaintiff for £1,015 5s., and no more. It was pointed out by Mr. Chapman that several-perhaps many-of the items were charged at higher rates than those in the only schedule which was before the Court. Assuming this to be as stated, and accepting, as I do, Mr. Justice Edwards's opinion that the plaintiff was not entitled to claim in respect of his work, or any loss connected with it, any larger sum than appears to be owing in respect thereof under the schedule to McWilliams's contract, it still appears to me that this Court could not attend to such details, but that, if the parties cannot agree as to the deductions, if any, to be made from the amount found by the jury, that amourt should be the basis of the judgment to be given, leaving it open to the defendants to move for a new trial on the ground that the amount found by the jury is excessive. I am not satisfied that it is excessive, and should object to this Court being expected to examine into details of the account. This being substantially a judgment for the appellant, I am of opinion that he should have costs on the highest scale, and that the cross-appeal should be dismissed. [Martin, J., also sat on the argument, but had resigned before judgment was given.] Appeal allowed. Solicitors for the appellant: Morison & Loughnan (Wellington). Solicitors for the respondents: Findlay, Dalziell, & Co. (Wellington). (1) 45 L.J. Q. B. 487. MIERS v. BETT. S.C. Revenue "The Stamp Act, 1882," Sections 69, 70-Bill of Exchange- WELLINGTON. Promissory Note-Letter of Credit-Request to advance-Guarantee. A document in the following words-"Palmerston N., 7/6/97.'Mr. E. M.,—Please to advance Mr. A. F. the sum of fifteen pounds, "and I will be answerable for the repayment of same after six months. "Yours, etc., J.B."-is neither a bill of exchange nor a promissory note within the meaning of sections 69 and 70 of "The Stamp Act, 1882." The term "letter of credit," in section 69, is used in its ordinary mercantile meaning only. The intention of the Legislature in using the wide words of section 70 is merely to prevent an evasion of the duty with respect to documents which in substance are promissory notes. Mortgage Insurance Corporation v. Commissioners of Inland Revenue(1) and Dickinson v. Bower (2) followed. THIS was an appeal from a decision of C. C. Kettle, Esq., District Judge at Palmerston North. The only question involved was whether a document which was sued on in the action was liable to stamp duty as a bill of exchange or promissory note. The document was in the following words : Mr. E. Miers. Palmerston N., 7/6/97. PLEASE to advance Mr. A. Farmer the sum of fifteen pounds, and I will be answerable for the repayment of same after six months. Yours, etc., The District Judge held it to be liable to duty. T. Young, for the appellant: JOHN BETT. The only question is whether the document is stampable as a bill of exchange or promissory note under sections 69 and 70 of "The Stamp Act, 1882." An order presupposes that there are moneys in the hands of the person to whom it is addressed out of which it can be paid: Buck v. Robson(1). That was affirmed in Fisher v. Calvert (2). See also Little v. Slackford(3). There having been here no money in the hands of (1) 48 L.J. Q.B. 250, 254; 3 Q.B.D. 686. (2) 27 W.R. 301. 1901. July 31; August 20. EDWARDS, J. S.C. 1901. MIERS V. BETT. Neither is it the appellant, this was not a bill of exchange. [EDWARDS, J.-It is a guarantee. There is not a primary liability.] It is, no doubt, a guarantee. If not stampable otherwise, it is not stampable as an agreement, the amount being under £20: The New Zealand Farmers' Dairy Union v. Birch(2). C. A. Loughnan, for the respondent :— It was not contended in the Court below that the document was an order, there being no funds in the appellant's hands. But it was contended that it was a promissory note. It was also suggested that it was a letter of credit within the meaning of section 69. "Letter of credit" is defined in Sweet's Law Dictionary(3) and in Byles on Bills(4). The latter seems to confine the terms to a letter between bankers. But there appears to be no authority for that. This document comes within the definition in Sweet(3). It is admitted that this is not a promissory note within the Bills of Exchange Act, because it is payable on a contingency; but it is a promissory note within the meaning of the Stamp Act. There is a primary liability on the part of the respondent. On the question whether this is a letter of credit, the appellant relies on the definition in Byles on Bills(4). EDWARDS, J.: Cur, adv. vult. The only question raised in this appeal is whether the document in respect of which this action is brought is a bill of exchange or promissory note within the meaning of sections 69 and 70 of "The Stamp Act, 1882." The document in question is in these words: [His Honour here set it out]. It is impossible to doubt the meaning and effect of this document. It is a request, by a person proposing to become surety for a sum of money to be advanced to another, to the person from whom the advance was asked to make the advance, and a guarantee that the person to whom the advance was made would repay the money advanced at the expiration of six months. The request was to advance to the principal debtor, not to the surety, or to the principal debtor as agent for the surety. The liability of the person signing the document was clearly the liability of a surety only. Counsel for the respondent admits that the document is not a bill of exchange within the meaning of "The Bills of Exchange Act, 1883"; but he contends that it is a letter of credit, and therefore a bill of exchange within the meaning of section 69 of "The Stamp Act, 1882." In my opinion this contention cannot be supported. The words letter of credit are used in conjunction with the words "draft, order, cheque," for the purpose of extending the meaning of the words "bill "of exchange." It is plain that all these words are used in their ordinary mercantile meaning. It is conceded that the ordinary mercautile meaning of the words "letter of credit" is correctly defined in Byles on Bills(1), and that that definition does not include such a document as the present. Counsel for the respondent also contends that the document is a promissory note within the meaning of the 70th section of the statute. This section is in the same words as the 49th section of the Imperial statute of 1870, 33 & 34 Vict., c. 97. The case of The Mortgage Insurance Corporation v. The Commissioners of Inland Revenue(2) has established that a document is not a promissory note unless it contains a promise to pay a definite ascertained sum of money, and unless that promise is substantially the whole contents of the document. An agreement to be answerable for the debt of another is not a promise to pay a definite ascertained sum, for the promise is not to pay the sum mentioned in the agreement, but so much thereof as is not paid by the principal debtor. The extent of the liability of the surety cannot be ascertained from the document alone, but only by inquiry as to the state of accounts between the principal debtor and the creditor. The case is therefore ruled by the case just cited. The very point has been so decided in Dickinson v. Bower(3). The case of Yeo v. Dawe(4), as explained by Lord Esher in The Mortgage Insurance Corporation v. The Commissioners of Inland Revenue (2), shows that the intention of the parties is an element to be taken into account in determining the (1) 16th ed. 111. (2) 20 Q.B.D. 645 : on app. 21 Q.B.D. 352; 57 L.J. Q.B. 174. 630. VOL. XX.-24. (3) 14 T. L.R. 146. (4) 53 L.T. 125; 33 W.R. 739. S.C. 1901. MIERS 1'. BETT. |