y Appeal allowed. Judgment of the Supreme Court/digcharged and judgient in the action entered for defendant ezgellant. Respondent te pay the costs of the action in the Supreme Court a anu the costs of this appeal. aeA Cost va Hag Gist fw mney tect Seo, ' STANDARD RUBBER WORKS PROPRIETARY LIMITED v NAGEL. Judguent. Knox Cad, The question fer decision in this « al depends for its | solution on the interpretation of a docuuent ewbcdying the terms of settlement of a previous action in which the p: ent appellant (here- inafter referred to as the Company) was plaintiff and the present res- pondent and one Poeppel were defendants. In that action the Company sought to recover from both defendants the sum of £1699-9-10 the price of goods sold to Nagel & Poeppel at a time when they were carrying on business in partnership. When the action came on for trial Poceppel withdrew his defence. and admitted the claim of the company. Thereupan negotiations for settlement took place between-the company and Nagel & terms of settlement wor Goer in writing and signed by counsel for both 2. parties. The document containing the terme cf settlement is in the words fcllowing,viz :- " (1) By consent judgment for the plaintiff for & cution cf the judgment S £1699-9-10 with costs of the avtion., (2) ft gainst the agets of the partnership sold te qnd arst to be issued now in the possesaion of Poeppel. (3) Execution of the judgwent against Nagel to be suspended on payment by defendant Nagel of the sum of £600 within 21 days and payment by defendant Nagel 2b the balance of the anount of the judgment and costs by monthly payments of £200 the first of such payments to be neds on the lst day of May 1922 and the other payments on the first day of each month thereafter, C4) on Shack in performance of this settlement by defendant Nagel judgment to issue forthwith for the full amount and costs against the Gefendant Nagel. (5) Judgwent against the defendant Hag Nagel not to be issusd save upon such default as aforesaid and tis entry of judguent against the defendant Poeppel to be without prejudice to the right to enter judgment as aforesaid aginst the defendant Nagel." uuneECnnENE ES a 3. 1d, before whom the action came for trial refused to give judgwent the terws of the document and after some disoussién the parties to : séttlement agreed that judgment for the full amount claimed should Pronounced against beth defendants and this waa accordingly done, but mtertain no doubt that as between the Company and Nagel both parties ce bound by the agresuent constituted by the written document, Tni- hiately after the judgwent was pronounced negotiations were set on ot for the purpose of. avoiditg o forced sake of the assets then in eppel's possession but eventually on the 16th May 1922 these negotia- ons broke down. At that time assets of the formen partnership toa nsiderable velue were still in the possession of Poeppel. The payment £600 mentioned in the terns of the settlement and one monthly payment : 4, * £2 of £200 were made by Nagel. and accepted by the Company. When making the last wenticoned payment on the 6th May 1922 Nagel's solicitors re- quested the couwpany's solicitors to "proceed te carry out the teras of settlement anda issue execution against Poeppel at an early date", and on the 9th of June again wrote in effect refusing to make any further monthly payuentsand repudiating any liability on Nagel's part je adhere to the terms of settlement on the grounds that the Company by net is- suing execution against Poeppel had made default in carrying out those terme. After some further correspondence the company's solicitdrs on 2 . the 18th August 1928 entered judguent for the full amount ggainst Poep- pel & Bagel, and cn the same day issued execution against Poeppel, i A levy was made under this writ on the 5th September 1922 the amount re- @lised being a very small sua which was paid to the landlord on account of arrears of rent, and Nagel was subsequently compelled to pay phe bal-; ance of the judgment debt amounting to 2899-95-10. Nagel then brought an Re action against the Company to recover damages for breach of fag cement constituted by the terms of settlenent, the cause of action alleged being that the fompany in breach of the terms of settlement neglected and re- fused to issue execution against Poeppel on the judgment or to levy on the assets mentioned in clause 2 of the terms of settlement within a rea- sonable time after the 7th March 1922, by reason wherecf Poeppel was en- é i] abled to and did sell and dispose of such assets, The &ction came on for trial before Shand J. who non-suited the plaintiff. On appeal to the i 6. ! Full Court of the Supreme Court the non-suilt was set aside and a new trin &l was ordered, The action then came on for trial before the late Chief Justice of Queensland and @ jury. In anawer to questions the jury found i that assuming it was the duty of the Company to cause execution to be le- vied against the assete cf the partnership within o reascnable time after the 16th May 1922 they did not cause execution to be levied within a rea- sonable time and the plaintiff thereby suffered £650 damages. ' | On this finding the learned 0.J, being of opinion that it was the duty of the Company to levy execution on the assets in question with-, ' . : 1 in a reasonable time after the 16th May 1922 entered judgment for the \ plaintiff fa £650 and costs and from this judgment the present appeal ie! eee) qT. é brought. The sole question for decision# is whether on the true con- struction of the te. of settlement this duty was imposed on the Coi- pany. In my opinion it was not. Clause 1 provided that there should be judguenty for the Gompsny for £1699-9-10 . On that "ent it would have been open to the Company to issue execution and to direct the Sher- ff to levy against the goods of sither defendant only. This being the position if clause I stood alone clause -2 provides that execution is fivet to be issued against certain assets in the possession of Poe- ppel, which seems to me a loose wag of saying that execution is first to be issued against Poeppel7 and the Sheriff is to be directed to levy on these assets. The question really turns on the meaning to be given &. to the word "first", Dees it mean before execution is issued against { any other person liable or levied on any other goods or devas it mean teé> before anything @lse is done under ths agreement? In my opinion the for; mer is the natura] meaning of the words and therefore the meaning to be | adopted. Where execution van be issued aginst both A. & B and letked on! the goods of either I think an undertaking to levy first on the goods ef * A.imports no more than that execution is to be levied on these goods be- fore it is levied on the goods of Bee the It was argued that {description of the assets to be first levied on as being "now in the possession of Poeppel" showed that the obligat iow was to levy execution before he could dispose of, any of the goods in his possession on the #7th March, and therefore dmuediately. But this | arguuent takes no account of the fact that some days at least must necessarily ¢lapae before the writ cculd be issued and the Sheriff be ; put in possession off the goods and that in the meantime Poeppel, who seems according to the learned Chief Justice to have been a man whom no one trusted, would have ample opportunity to get rid of them. In muy opinion the words of clause 2 of the agresuent are reasonably clear and impose no such obligation on the gompany as the respondent alleges The provisions of clauses 4 & 5 of the agreement were based on the as- suuption, which proved to be incerrect, that separate judgments would be entered against Poeppel and Nagel, and no assistance in construing clause 2 can be derived from them, or from clause 3 which does no more' 10. than suspend the right of the appellant to issue execution against Nagel go long as he pays the suwstherein mentioned. In my opinion the appeal should be allowed and judgment in ti action should be entered for the appellant. v NAGET. see MR_JUSTICE TSAACS- ORKS _PROPRIGTARY 3 ISAACS. In my opinion the judgment of the late Chief Justice of Gueenslend was not only a just one but 4lso correct' in law. Turning on the construction of a particular special contract the wetter is not of graat/inportance, but it means much to the parties concerned. Two men,Zoeppel end Nagel were partners, ond the firm purchased goods from the Standard Kubber Company. For these they gave a cheque for about £1,699, which wes not paid. An action brought by the compeny was defended by both partners. While the.action was pending the partners agreed to dissolve partnership, on terms of which the only one/important to mention were that Tloeppel was to take the assets and to pay 411 partnership debts. hen the trial of the action came on,?oeppel, in whose possession the assets then were, consented to - Hagel however would not consent uncon- judgment unconditional ditionally but stipulated for conditions. The parties -Nagel and the company~ agreed to the terms and wished them to be noted by the learned Judge presiding. This the Judge declined to do. It was then arvangea that the form the settlement should take was 4 formal order to order for juégment simpliciter, leaving the two parties as between 1 themselves tio be governed by the terms they had already assented to. Nothing could be ploiner than this, that the agreement they had al- -ready arrived at wos not intended to be destroyed or weakened by the form of the juégment but that os between them the curial faxmacx adopted formlities/vera only a means of reaching,and honorably effectuating the substance of the hargoin they themselves had made. The agreement which, signed by the Counsel of the two respective parties, was as followg;— TERMS OF SEPT BWAND. (1)....By consent judgment for the plaintiff for £1,699/9/10 with costs of the action. (2)....3xecution of the judgment first to be issued against the ths assets of the portnership sold to ond now it Peos- -session of foeppel. (3)...,Bxecution of the judgment against Hagel to be suspended on payment by defendant Nagel of the sum of £600 within 81 days and payment by defendant Magel of balance of amount of judgment and costs by monthly payments of fog oF £200 the first of euch payments to we made on Ist/Iiay 1922 and the other payments on lst Way of each month thereafter. (4),..,Ia default in performence of this settlement by defen- -dant. lagel judgment to issue forthwith for the full amount and costs against the defendant liagel. (5)...,dudgment against the defendant Nagel not to be issued save upon such default as aforesaid and the entry of judgment against the defendant Poeppel to be without prejudice to the right to enter judgment as aforesaid against the defendant Nagel. . Dated this 7th March 1922. ake The agreement as will be at once perceived is not a formal contract. it consists of what way be properly described as memoranda, from which the contact if formally drawn up would ba framed. lt is a bargain between mercantile men, expressed in brief and elliptical terms, and is of a nature to which the lenguage of the Privy Council in the case of (% R420. at.p.182) exactly applies. Phere Lord Justice Mellish says:~ " Although it is true that the " Court ought not to make a contract for the parties which they hexax "have not made themselves, yet & Mercantile contract, which is "usually expressed shortly, &nd leaves much to be understood, ought "'o be construed fairly and liberally for the purpose of carrying "out the object of the parties". When we visualise the relative situations of all parties at the moment, the meticulous dominance the Court was invited to give to the word "first" in clause 2, to the utter disregard of the solid . unwarranted business realities, appears not merely mbounk but distinctly con~ -trary to justice, --------------------------------2------------- On the face of the document the goods for which the debt was incurred and then in Poeppel's possession ware to be made the first means of paying the debt, that was obviously from any business viewpoint, the one substantial protection to Nagel, who had old out his interest PB just to Poapel in these goods. It was/to Yoeppel who had undertaken to pay the partnership debts. It was astounding to me to hear the learned Counsel for tiie company 2dvance an argument that takes a11 substance out of this essential stipulation, and reduces it to a mere as itaguk. mere matter of form. le says that while it wos incumbent on the com- -pany Aecording to ike agresment to issue execution firgt against F Loappal, that,consistently with the agreement could be done at _any_ time, even after loappel haé been allowed to make away with the assets. All that was necessary, says the company, Wass that the exe- -cution against Poeppel should be prior to the execution against not Hagel. Accérding to the argument iriority ana/ Security was the ob- -ject of clause 2. A more unbusiness like and purposeless motion I never heard of. However, that is necessary to save the company in view of what was done. The goods in Poeppel's possession even on 16 May were worth at ordinary selling price over £2,000, After June £1,510 had actually been realised tor them. But whon in September the company caused the bailiff to levy on such goods of Poeppels as the bailiff could find, all that could be found realised after expenses were deducted, the sum of £7/18/68. 'the articles sola con~ -gisted almost wholly of the office furniture, practically all of the valuable rubber goods having disappeared; and the proceeds going 4% least in the first place into Poeppel's pocket and not applied to pay the partnership debts. that wos the very thing that clause 2 was designed to prevent - if it is to receive any business efficacy. But the"execution" issued under those circumstances, and with that result is said by the company to satisfy the exigency of the second clause, and to have afforded Nagel all the security promised him. In in my opinion, from any standpoint, whether of legal construction, business understanding or ordinary fair play, it is beyond the hounds of reagon to regaré that as any compliance with the stiplation on 6 lBrch to execute the judguent first "against the assets of the "partnership and now in the possession of Poeppel". Then it is said for the company in argument, though @ quite different reason vas given fox its inaction in its correspondence, that it was unable to issue the 2cution earlier against Poeppel because it would have been breaking its bargain with Nagel. That is said to arise in this way. Real J,having ordered judgmont against both defendants, it had to be a joint judguent;but a8 the company had agreed with Nagel not to sign judgment against him until his default, they could not do so until he made default, for fear of breaking faith with him, and therefore the company could not sign judgment against foeppel,and consequently no was possible execution/against Poeppel. With singular inconsistency the argument for the company was that Nagel actually made default on 1 May. If that were true, the excuse mentioned goes for nothing, because hicCawley C.J. pased his judgment on the company's failure after that date, But how doea the excuse sfand on its own merits? Whe direction of lieal J,as I have said, was given in full knowledge of the actual bargain between the parties, That bargain broke the joint liability of the late part- -ners as it then existed by recognising their distinet stipulations for the future. Ho longer were thoy Siamese twins in responsibility to to the company. Poeppel rewsined unconditionally responsible, and this responsibility was placed in the forefront for the reasons stated. lagel was liable for the whole amounts but only secondarily. Sven jucgment was agreed not to be entered against him until he mde default. the referred to when if is examined means that it was not Hagel who was to be protected by #oeppel,but Zoeppel to be prom -tected by Nagel. Por Nagel, according to that was compelled to go on paying regularly on pain of committing a breach of contract, and 80 lose the protection of the asevts,or else suffer default, and be Liable to imnediate responsibility for the whole amount, judgment and execution, following at once. He was not bound to completie his in- -stalments until October. Now if the ogreement meant, as the company contends, that no execution could go &gainst Poeppel unless and until Nagel made default, and that Nagel agreed he would not make default but go on paying until October when the whole amount was paid up,of what possible usa was clause 2? Clause 2 was the corner stone end, f the yart Lam unable to,make jt, the only stone Pike Pees Hee png Mor my re BE Sot Pn Boe, fopae ks tt, the, 2 Fouts have broken fait ere Hage] is soubly absurd pen it is remembered how strenuously Nagel urged the com: nay to do it. to be Tejenteds "pone other objections were raised mt of @ trivial nature. For instence, rzliance was placed on the judguent actually ordered and signed as being joint. what does thet matter? There ves the agrevment to proceed by execution against the assets in ?oeppel's possession at once. Negotiations deferred the duty to proceed till May, and that is all the company has been required tv answer. he plain honest and effective meaning of ths agreement to my mind is nothing more or less than this:~ (1)...@he company to be ontitled to order judgment against both defeniants. (2).,.She particular assets to be realised at onee by execution against Poeppel, this connoting judgment to be entered against him forthwith. (3)...Bxecution of the judgment ordered against Nagel, to be suspended while he complie@ with the in- -stalment plan. (4)..Judgment not to be entered against iegel unless he failed in respect of the instalments,in which case the protection of (3) and (4) to cease. (5)...Hagel, in case of default, to raise no objection that a separate judgment had been entered against Poeppel. The company hag had all the benefit of the bargain, and they have deprived Nagel of any of its stipulated protection. In my opinion the company was justly amercea by McCawley C.J. an@ this appeal should be dismissed with costs, SUANIARD RUBBER YORKS PROPRIETRAY LIMITED ve NAGEL. et | SUDGHENT. RICH I This sppeal is from a judguent of the inte Chief Justice of Queensland in which His Honeur held that the cppellant was bout. to issue execution agiinat one Poeppsl and to levy on certain partnérolip agaats within u ressonoble time after the date of the entry of judgnent in a previous action. In that action the parties » at & setticment the terma of which are not vary sptly wordel. The snawer to the present controveray ¢ wnda upon the conatruction of this document. I amunable to agras with the conatsuct=- ion plscet upon it by the late Chief Justice. In ay opinion clouae a of the settlement provided that execution should be levied om the peri- narehip aaasts be fore levying on Nagei's sepurate goods. The docunent ia not to be construed a4 inpuulag an absolute and over-riding obi ion oa the company to proceed 4 g2113% the pertnership goods before taking any other otepa.under the teraa of | settlement. Be So far 29 execution ageinet the partnership ivasts is Goncerned the Cowunent ie silent as to the tiac m aueh execution is to insuce Ta wy opinion the decument in question affords no guppert ta the csuse of action sllegad ani tne appesi ehould ba allowed c STANDARD RUBBER NORKS PROPRIETARY bTD, WV. NAGEL. Judgrent_ Higgins Js Z do not think that anything would be gained 4£ I were to deal | with any of the mumerous quastiona disguased but one; and that iu, the question cf the messing of clause 2 of the-"terna of tho aettlonont'. If that queation be deodded against the seapondent(the plaintiff in the ac thon) tho a@tion mot feiljand anything that I Could say on other ou jects would be merely obiter. The action ia of a very umamsal nature, vased on the terms of settlement of on action againat the partnership of Hagel and Poeppel. It hae not been contended by the appellant(tne defen dant) tiat there would be no cause of ad tion even if the plaintiff's 7 interpretation of the turma of sattlement. were "nocopted;ana,an the absence of arguaent on the eubject,i prozose to aumume that thoye would bs a good ' \ Oause of adtion. Ny opinion is that there was nothing BS the tormo of aattloment to oblige the appellant,as judgment arestior, te levy excou~ \ ' tion "against the agseta of the partneruhip wold to and now in the pos ace gion of Poeppol" or to levy exeoution at all unless he onomey ad that the word "rire" in Gluuse 2 mouns merely that before levying of any 'exqout ion againat Nagel there must be exeoution againut the asests cf the partnore whip. Those exptesaions aro not technigal,mt they are used in the terna of aettlenent,and 'the meaning 40 plain. While I revegnize the thoréugh= nosd{$hich the late Chief Justice KaCawley dealt with tho oaeo,T an unatde| $0 concur with him in the following pasdage(smongat others) in his reaxeng: for Judgment (p.177) - * what effect is te be given to the word 'errot' Gin Clouse 2 of tho terns of vettlonent}? I think 4t'moano that: tho plaintife, Nagel waa bound te do anythingjand the firet thing Nagel waa pound to do waa to pay 4600 81 doys after judgment". t muot strike any one a} all familiar with the ways of sheviffe and exe tione as axtraordinary that the t7o learned counsel who drew up and aigned Se rn. the terme of settlement should expect exesution to be cemplated within a 20. Tut there is nothing whatever in the terms of settlement to make { so he obligation of Nagel to pay 4600 in 31 days and 4800 monthly thereafter | — (elsuse 3) dependent upen the levying of oxeoution against the partnershap : ouda. Nagel' was to go on paying untdl the Judgment was satiafied. I2 nd when thers should be exeoution and aale of all these goods,Nagel would | '7 . progunatly get the advantage of anything realiaed from the sale,anmd credit | tor nia own paymonta,in the settlement of accounts with Poeppel. With the: wawunte between the partnere,tho judgment écedttore hod ne concern, I reac Qlauso 2 nog aa binding the judgment creditore to levy execution wainet ahy persen or aay gooda, tut a8 binding them not to worry Nagel wet yeeoution against hie private assete until exesution should be oxhausted iwainet the goods that belonged or had belonged to the partnership. 'or it was a partnership debt. ' The learned Chief Justice indsed,hae dealt with this view of G1. 2 thuse should not be "If the clause meant ne more thaa that oxedution saaxlaxted levied againat Bagel until exooution waa levied againat Poeppel, Nagel oould got no benefis from the Clouse unlesy he made defmilte He would in effect have to make default da the sgrecment in order to get the benefit of it - a most oxtraordinary situation: ow,with deep reapeut for the late Chief dustics,I am unable to socept he position as 30 stated. Ia delay in the enforoement of the judgment obt against Hagek personally no benefit to Nagel? Ia not the substi tp. } tion of time paymenta for ong inmediate paynent no benefit to him? I Le 3' Bote alse that the Chief Justice,in coming to his donolusion aa to she meaning of tho terms of settloment veoms to treat the cirounstance o of tha Case ao adding to the expressions used in the contrast, There 49 a aifference botwoon fa) putting oneself in the circumstamees of the parties at the tine of a contrest,so ae to find the proper application ofthe Core trant,aond (b) deducing from the circumstanogs what contrast the parties wenld probably have made. Tho former course is legitimate; the latter io note Finding 4 of the jury at the trial is as follows + "that the parties te this a¢tion thoreupon! that gudguent should bo entered in the said setion against the plaintizf and Poeppel for #1699/9/10 #ith costs. on the terms and conditions mentioned in the wagroomsnt of wattigment( Ex a)so. far ao the sare sould be applied'. : The concluding nerds "so far aa the acme ould be applied" were due to the pooiltion taken by Real J. fut tho trial of the origingL se tion Stand afd Rubber a0 ata. ve Wagel] that there mat bo judgment againgt bothh dofendanta - agoinst Nagel as woll os against Pooppel. | Put finding 4, which neither party impugn prattionlly reduces the otd dyntions created to the terms of settlement on their tme inverprekation; /: a these termes of sottientnt I can find, neither expressed nor implied, any obi gation on the part of the appeliant to isaie exosution at alle: \ In ny cyinion, the appeal should be allowed. IPRIETARY LTD. in lis pleadings that the rd Rubber "a Lea, sd and undertock that it sould ly, ex at the earliest reascrable time after 7th 'arch 1922, : jesue exeoution upon a cevbain judgment, aud levy against and cause to mR | el and oc be seized, the aosete of a partnership vebwe Poeppel atyled "The HowPuncturable Tube ond Bubber Company", scold to, and then in the possecaion of Poeppel. Whe proof of thie allegation rests urou veh 1922, the copatrcetion of certain Terme cf Settlement, dated 7th of an action in waich the Standard Rubber Werke Ppy Ltd was the plaintiff ami Vagel and Poeppel were fendaute. Ry this Settfement, it was agreed { that judgwent should be given for the Standard Rubrer Works Ppy Ltd against veth Nagel and Poeppel for the eum ef £1,699-9-l0d. And Clause 2 provided as follows: "Execution of the judguent firet to be issued against as- Per) "Sota cf the partnership aold to and now in the possession of Poeppel'> Thie clause Goes no wore than require the essets of the partnership to be exhausted before execution is levied uwon assets belonging to Magel himself, 14 fixes no time within which the exeoution upon the partnership ~<F peer Bow, As 45 rast ~ assets showld be levied. Sor is tmcwaluentaad ect forth in the plead- effeet ard efficacy to this term cf the ings Keosssegm to give busin Las ae er a ee aE Settlement, Clause 3 cf the Settlement provides for certain payments vy a Nagel, but it throws no light oh CYase 2. ty Clauses 4 aud 5, the par— uld be ties stipula given againat Hagel unless he wade default im the payments mentioned in Clause 3. But the learned Judge metho ny nt wie made stated that he aust who heard the action in which the Settleu % both defendants. The parties finally accept @hes in lew give judgment a arties refrained this view, and judgment wae given eovordingly. But the for sone time from formally entering this judgment on the records of the Court. These Clauses, |b and 5, ow only be underatocd in the Might ef this action on the part of the learned Judge and cf the parties at the trdal. Tiey are luappropriate to the judgnont which was actually given, cut it is clear enough thet they ¢pevate to prohibit against Claus. rd Ruber ¥erks Puy T assets before the e Partnership were exha ated, or before he bub on cebion au. 1 fer in © mode defandt in ae 3, upen neglect to le on the partrerstip asacte forthwith, or within a veasonsble tine af 7th Murch 1922. The apveal ought to ollowel, with the veual consequences.