Myerson v. Collard
25 CLR 154(1918) 24 ALR 306
(Judgment by: Powers J.) Court:
Judges:
Barton J
Isaacs J
Higgins J
Gavan Duffy J
Powers JRich J
Judgment date: 12 August 1918
Sydney
Judgment by:
Powers J.
At the hearing of the appeal several questions were raised which my learned brothers have fully referred to in the judgments just delivered. We agree on all questions to be considered by us in this appeal except one important one, namely, whether the prosecution proved that some part of the furniture seized "belonged to" Mrs. Collard at the date of the seizure, in the sense in which we all interpret those words. I cannot see my way to come to any other conclusion on the evidence than that Mrs. Collard did prove that part of the property "belonged to" her, and therefore that the appeal against the conviction should be dismissed.
The following is the evidence on that point:Mrs. Collard said: "Some of the furniture was my own, and some I had under a hire-purchase agreement. The green leather suite-a seven-piece suite-belonged to me-a dining-room suite I bought at Davidson & Co 's, and paid PD7 12s. 6d. for it. ...The green leather suite was also sold." The witness was not cross-examined on the statements referred to. No evidence called by the defendant contradicted the statements made by Mrs. Collard. The evidence was, in my opinion, confirmed by Thomas Leslie Crowe, called by the informant. Crowe said:"I am secretary to Davidson & Co Ltd , house furnishers. I know Mrs. Elizabeth Collard, to whom we sold a seven-piece dining-room suite on the time-payment system, but it was fully paid up on the day of the sale." Other evidence was given to show that the full purchase money was not paid until the date of the sale, and the circumstances under which it was paid, but it did not in any way refer to the payment being made under the terms of any hiring agreement.
The uncontradicted evidence, therefore, is that some of the furniture was Mrs. Collard's own, and she shows clearly that she knows that property held under a hire-purchase agreement is not her own, because she distinguishes between the two. She further added the words, "the property belonged to me, I bought it at Davidson & Co 's"-in contradistinction to holding it under a hiring agreement. It is said that by using the words "belonged to me" Mrs. Collard could not affect the legal position. That is, of course, true; but after showing that she knew that property held under a "hiring agreement" was not her property, full effect should, in the absence of evidence to the contrary, be given to her words.
She also used the word "bought" in respect of the goods in question, when she referred to her own goods, in contradistinction to the words "held under a hiring agreement." I do not feel justified on that evidence in drawing an inference that she was talking about property under a hiring agreement when she said the property bought from Davidson & Co was her own. It is more difficult for me to draw such an inference when Crowe, the secretary to Davidson & Co Ltd , house furnishers, corroborates Mrs. Collard and swears that they sold the property to Mrs. Collard on the time-payment system. It surely cannot be inferred against a furniture dealer also that when he swears to property being sold he does not mean it, and that he refers to goods not sold, but only hired with a right of purchase.
It is common knowledge that property of all sorts is sold on the time-payment system and becomes the property of the purchaser-furniture, men's suits, women's clothes, and almost every sort of goods; and the evidence submitted here, by the prosecution and the defence, as to the particular goods in question, is that these goods were sold by the seller and bought by the purchaser, Mrs. Collard, and belonged to Mrs. Collard at the time of the seizure although the full price had not been paid to the seller before the day of the sale.
I agree with my brothers Higgins and Gavan Duffy that the order to pay the sum of PD14-the value of the articles taken possession of-should be reduced to PD7 12s. 6d., and that the appeal against the conviction and penalty should be dismissed.