UNDUE INFLUENCE

Evening Post, Volume CVIII, Issue 150, 21 December 1929, Page 10

UNDUE INFLUENCE

PROMISSORY NOTE CLAIM

JUDGE'S STRONG COMMENT

(By Telegraph.)

(Special to "The Evening Post.")

AUCKLAND, This Day.

Judgment for the defendant has been given by Mr. Justice Smith in a claim by Edward Joseph Flood, an accountant of Sydney, against James Earnest Gear, of One Tree Hill, for £775 alleged to be due on a promissory note, and 8 per cent, interest from 23rd May, 1923. .

The defendant alleged that if he did make the promissory note it was obtained from him by John M'Laughlin and Son, solicitor's of Sydney, unlawfully by duress and undue influence. He denied that the plaintiff was the holder in due course of the note.

His Honour proceeded to relate what he described as a disgraceful story. It was desirable that M'Laughlin should go to New Zealand, for if he could take Gear and his estate over to New South Wales a prize bird could be plucked. The difficulty was to find the money, not only to meet a liability in respect of £2000, but also the money for M'Laughlin's office expenses while he was away, money for certain pressing debts, and money for the expenses of his trip. It was resolved, therefore, that Gear, who was to be saved from the careful guardianship of a New Zealand solicitor, must first himself be placed in jeopardy.

His Honour expressed the opinion that the bill presented to the Court, as a bill for £775 signed by Gear in M'Laughlin's office on 20th January, 1923, was not that bill at all. He thought that it was more likely a bill signed by Gear in the Auckland Hospital as a renewed bill for £275 with its due date, purporting by an alteration, to be extended from April to May to turn it into a bill for £775. The word "two" must have been altered to "seven" after its execution, and the alteration remained uninitialled. There was also an alteration iv the figures to make them read "£775," but what that alteration was it was difficult to say.

M'Laughlin took Gear at a very great disadvantage on the morning they ■were leaving for New Zealand, and exerted very strong pressure upon a comparatively simple mind to extract promissory notes for substantial sums for his private benefit. Undue influence was positively established. This constituted illegality in making of the note. Flood's own position in respect of the note in question was very unsatisfactory. He never wrote to Gear or his solicitors for payment. He never proved in M'Laughlin's bankruptcy for the amounts advanced to him.