Green v Worley [1915] HCA 63

418 HIGH COURT

[HIGH COURT OF AUSTRALIA.)

GREEN AND ANOTHER . B : . APPELLANTS; PLAINTIFFS, AND WORLEY . é : , ' 5 ; . RESPONDENT. DEFENDA

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

H.C. or A. Practice—High Court—Special leave to appeal—Rescission—Question of fact— 1915. Bstoppel—Bvirtence.

+ eae The defendant agreed in writing to pay to the plaintiffs the sum of £70 195. 8a. 'out of moneys due to" R., who was a contractor and was building a

Sept. 20. sas house for the defendant, In an action in a County Court on the agreement Grifith C.5., judgment was given for the plaintiffs on the ground that the defendant was eee Dae estopped by verbal admissions made by him that he was indebted to R. from

denying that any money was due by him to R. The Supreme Court reversed the decision. On appeal by special leave to the High Court,

Heid, that no question of law was involved, and that the leave should be rescinded.

Special leave to appeal from the Supreme Court of Victoria rescinded.

AppEAL from the Supreme Court of Victoria.

An action was brought by E. A. & D. Green, a firm of timber merchants, against William Worley in the County Court at Melbourne, to recover the sum of £70 19s. 8d. alleged to be due and payable under a written guarantee dated 24th October 1914 given by the defendant to the plaintiffs, or alternatively for money due under that document, or alternatively for money had and received by the defendant to the use of the plaintiffs. It appeared that one Rosenfeldt, who was indebted to the plaintiffs and was being hard pressed by them for payment, had entered into a contract with the defendant to build a house. Under the contract a certain sum had, on 24th October 1914, been paid, and a sum of £100 would become due upon the certificate of the

20 C.L.R.] OF AUSTRALIA.

1914 the document sued upon was executed, which was to the following effect:—"I Alfred J. Rosenfeldt do authorize Mr. Worley to pay Messrs. E. A. & D. Green, timber merchants, Geelong Road, Footscray, the sum of £70 19s. Sd. out of moneys due to me—(Signed) A. J. Rosenfeldt. And I the said Mr. William Worley do hereby agree to same.—(Signed) William ss _ Worley." Subsequently Rosenfeldt abandoned the contract and "no money became payable under it. One of the plaintiffs in his evidence stated that in a conversation at the time - the document was executed the defendant acknow edged that _ more than £70 19s. 8d. was then due to Rosenfeldt, but admitted that in answer to interrogatories he had sworn that at that time the defendant had said that there was money coming to Rosen- feldt under the contract. Judgment having been given for the plaintifis for the amount claimed, the defendant appealed to the Supreme Court, which allowed the appeal and ordered the - judgment for the plaintiffs to be set aside and judgment entered "for the defendant, holding that the document was an assignment _ of the amount specified out of the moneys due to Rosenfeldt by the defendant under the contract between them, and that the defendant was not estopped from denying that sufficient money s due by him to Rosenfeldt.