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TMI Blog1929 (6) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the deed, and that he had been discharged from all liability thereunder by reason of a certain arrangement for giving time alleged to have been come to between the appellant and the principal debtor without the respondent's approval or consent, a somewhat ambiguous phrase. 2. The Courts of the Dominion, perhaps accepting the allegation at its face value, assumed, as it would appear, without any definite inquiry into the circumstances, that the arrangement alluded to was one for which George Henry Lysnar was solely responsible, and they did not concern themselves to ascertain how far, in fact, the respondent was cognisant of and had become bound by its terms. In consequence they occupied themselves chiefly with the question-in their eyes the most important-Whether notice of the position of the respondent as a surety only could properly at the date of the arrangement be imputed to the appellant. And in the result these Courts were in difference as to the proper answer. The learned trial Judge held that such notice could not be so imputed and decreed the action against the respondent. The Court of Appeal, on the other hand, being of opinion that the appellant must at the crit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish security from his own property if time for payment were given and judgment in the action not taken. This was agreed to by Mr. Burnard on Mr. Bennett's behalf subject to the execution by the respondent and his brother of a deed embodying the terms then foreshadowed. Instructions to prepare such a deed were given by Mr. Burnard to his partner, Mr. Bull and the actual deed of 21st December, in which the final terms are embodied, shows on its face the alterations before execution made in the draft as so prepared. 7. The deed executed is expressed to be made between the two brothers, as grantors of the one part, and Mr. Bennett, as grantee, of the other part. It recites that the respondent is the owner of the chattels scheduled to the deed; that the grantors are jointly and severally indebted to the grantee in the sum of œ5,280, and witnesses that in consideration of that sum now owing by the grantors to the grantee (as they do and each of them both hereby admit), the respondent assigns to the grantee the scheduled chattels by way of mortgage only for the purpose of securing its repayment with interest in the manner thereinafter provided, and the grantors jointly and severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s brother, it so continued under the deed was not seriously challenged. Further, it may be inferred from the evidence of Mr. Bennett that the position of the respondent as surety under the 'promissory note ought to have been known to him and also, although this was disputed to Mr. Burnard as his solicitor. Finally the appellant accepted the position that any notice or knowledge imputable to her husband was equally imputable to herself. 11. But here real conflict began. No attempt was made by question or otherwise to establish that Mr. Bennett, on receiving the deed of 1923, had any reason to suppose that as between the grantors the obligations thereby undertaken were other than they thereby appeared, and the evidence of the respondent, which sought to establish that he had brought home to Mr. Burnard by express statement the fact that he remained a surety only in the transaction was not accepted by the learned. Trial Judge. 'The respondent's recollection, given in evidence, was that in the draft of the deed shown him there appeared a recital that he was a principal debtor, that he insisted on the deletion of that statement, and that after heated words Mr. Burnard agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this question if, having examined the later history, they find that any decision of theirs upon it is called for. 14. That subsequent history is simplified if the fact be borne in mind that, beyond his liability under the deed to Mr. Bennett, Mr. George Henry Lysnar had mortgaged certain of his properties to Messrs. Burnard Bull to secure a separate indebtedness of his own. With that indebtedness the respondent was in no way concerned, but it is from time to time referred to in, and had considerable influence upon, the correspodence to which attention will presently be directed. 15. As to the first installment of œ1,000 payable under the deed, no question arises. It was duly satisfied as arranged. No interest, however, was paid in 1924, and on 22nd December of that year the respondent and George Henry Lysnar were notified by Mr. Burnard in identical letters that œ1,000 principal was due on 20th January 1925, and that, in addition the overdue interest, payment of that amount would be required on that day. 16. To this demand upon each of them no response was made either by the respondent or George Henry Lysnar. 17. On 21st January 1925, a further letter was addressed by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eto, and the document be then exchanged for one in like terms signed by himself. 21. By the first clause of the memorandum the interest then accrued is agreed at œ581. Cls. 2 and 3 are as follows : 2. The Messrs. Lysnar are to pay œ120 on account of such accrued interest, leaving the sum of œ461 to be paid on 1st December next. 3. The Messrs. Lysnar desire the principal sum œ1,000, which fall due on 20th January last, to remain on until 1st December next. It is agreed that the Messrs. Lyanar shall pay œ80 by way of premium and shall pay the said sum of œ1,000 on 1st December next, together with the above sum of œ461, being the sum of œ1,461 in all. 22. By the final clause it is provided that all further payments of interest and all other obligations under the security are to be duly performed and observed. 23. The memorandum was accompanied by the following letter addressed to George Henry Lysnar : W.D. and G.H. Lysnar to L.T. Barnard We enclose herewith statement of agreement regarding this security, the understanding being that, provided your order for œ600 on Messrs. Common, Shelton Co. is duly met, and the sums of œ100 owing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that their conclusions on this part of the case do not have exclusively to depend on concessions made in the course of argument by a respondent in person. 28. The first letter is as early as 1st April 1925-written, that is to say, before the agreement of 27th March had ceased to be conditional. Messrs. Common, Shelton Co had refused to pay over the œ600. The letter goes on : This is completely contrary to Mr. George Lysnar'a statement to the writer that the matter had been definitely arranged with Mr. Smallbone, and will make it 'impossible for the matter to be completed on the lines arranged. Under these circumstances, we have to notify you that, failing the matter being carried out as previously arranged by 10 a.m. on Friday next, 3rd inst., we will be obliged to take immediate steps to enforce the security. 29. This letter the respondent received in silence. Later George Henry Lysnar paid the œ600 in two installments, and on 25th June 1925, after payment of the second of these, Mr. Burnard sent to the respondent a memorandum of the moneys due to date. You will recollect, the letter says, that under the arrangement made on 27th March last the arrears of princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the agreement, as an answer to Mr. Burnard's successive letters, can be understood. It is only thus that his joining with George Henry Lysnar as late as 1926 in raising money towards meeting Mr. Burnard's demands can be explained. 35. The respondent sought to account for his silence and action by suggesting that until by service of the writ a direct demand for payment by himself was made he had not troubled to investigate and did not really know the facts. It was only after the inquiry which he then made that he came to realise that he had by the arrangement of March, 1925, been completely discharged. 36. The respondent does not in this statement do himself justice. Direct demands upon him for payment had been made, as has been seen, before the arrangement, on 22nd December 1924, and 21st January 1925 and, after it, on 1st April 1925, and 26th March 1926. His knowledge of the arrangement itself he has never denied. This enquiry of his after writ could not have brought him knowledge of any relevant fact that he had not thoroughly known all along. What may well have been suggested to him by it was the view of the law since apparently entertained by him, that, notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent also rested this part of his case on a statement of Mr. Burnard's in a letter to George Henry Lysnar of 27th No. November 1927: We are, however, prepared to wait until 20th January for payment of the whole of the remaing principal. 41. And that money was due and payable, so says the respondent, on the previous 20th December 1926. 42. To which the answer is that it was not so payable, and that the view of George Henry Lysnar in his latter of 26th November, 1926, and accepted by Mr. Burnard, was quite correct. Whatever effect might have to be given to the provision of the deed that the principal sum of sum of œ5,280 as one sum was to be paid on 20th December 1926 its retention in the deed is an obvious oversight when the original is looked at it remains the fact that for payment of the last installment as such no date earlier than 20th January 1927, is fixed. 43. Moreover, their Lordships can in this statement find no agreement at all to postpone, certainly none supported by any consideration. This contention, which was almost trivial, fails the respondent also, and no other answer to the claim against him being put forward by the respondent before the Board, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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