SUPREME COURT.

Wanganui Herald, Volume XXXXI, Issue 12259, 31 August 1907, Page 6

SUPREME COURT.

Before His Honor Mr Justice Button.

FRIDAY, AUGUST 30.

C. W. GIFFORD v WM. RUSSELL.

This was a claim by Charles Wm. Gif ford, of Turakina, against William- Rus yell, of Wanganui, "or the specific performance of an agreement to purchase the lease of a, farm. Mr Cohen appeared for the plaintiff, and Mr Treadwell, on behalf of Mr Gordon, for the defendant. The statement of claim set out the following — (1) T,y kd agreement in writan., • dated sth August, 1907, , and signed by the plaintiff and the defendant, the plaintiff agreeing to sell W the, defendant, and . Ihe defendant to purchase from the plainttff the. leasehold estate of the -plaintiff in •100 acres of land, tajny section' 9^nd part section 10 at, lurakSna, tvhjf the sum pi, XI4QO, the putetane to be completed and poswssio'n given for"Uiwith. $) 'The plaint liff has applied to the defendant specifically to perform thsf said -ag-ree'ment, but the defendant has Tefiißed so' to perform 1 Mie same. (3) The'jfv7aintiff >ft h'ns been a A still is ready and witting 1 'specifically to the said agreement oil his part. The plaintiff asked; that, the. Court would decree That the specifically perform the oaid agrecaneut. Accept a transfer of the lease, pay, the plaintiff the Mim of J61400, togother with interest, and that he pay th»j costs of this suit. Defendant, in his statement of defence, admitted entering into the contract for the purchase of tho lease, and his refusal to complete the purchase! ' l|e held: That hefore entering into iauKsigwing the agreement m paragraph'! of the ""statement of claim the plaintiff represented to him that the momorandiyn of lease under which the leasehold interest was created, ; contained a covenant g«aqting to the lessee a. right of renewal for a. 'further term" of seven yeai-s from the expiry of- the term, by tfcc said lease created, at 'the same rent -and upon the same terms' and coAditkats aa in the said 'lease contained. That relying on such representation the defendant .signed the agreement and paid a deposit 6n-ac-count* of the' purchase money of j&10u. That the lease contained no right of .renjewal. As a c ttinter-claiir. the defendant asked that the said agreement should be dejiyei 1 <hI tip W be cancelled and declared void. „and that the plaintiff should refund the*' A'lOfJ deposit. Mr Cohen said that as his client admit tfd tho agreement the defendant would have to prove the misrepresentation, and he would therefore open the- case. If the misreprcsentati'oi were ' proved the suir would be withdrawn.

The evidence for the defence, which was given by th<> defsrfdant, his wife. Joseph Chaj^matf (wheT aasistpd in the negotiations) O. vJordon (solicitor)," was much on the lines of Mr Tread^ell'ff opening-, Which contained toe following : — ThVland mentioned was held by plaintiff by lease from Mr B. P. Lethbridge, the lease- being for 7 years, commencing* Ist August, 1906; so ill at one year had expired before thc^ property was under offer' to defendant, ' The leasts contained no right of renewal. Ihe property was placed in' Mr Fuxiong's hands for sale. Defendant v;as approached by "one of Mr Forlong's clerks' (Mr Stone), on the ?ud of August, 'asked if he Wanted a place, and after conversation deferred him ' fo Gifford's lease of 400 acres for £1500. Rus«»ell saw tha tater on, and met Gif ford on the farm, ♦o«ether with another agent's representative,- Mr Bowater.' Gfifiard said he vforuld take £1000 cash for tho the place', the balance, JSOO, to Temain at 5 per ci»nt. Rtissell said "the gofodwill- was "heavy for- a 6 years' 1 lease, when Gifford remarked that he had a right of renewal for another 7 yoara, at the same" rental 'aittj oir tho same' tjeirma. ; 33iis~ exte;»de<|; peritid impressel Riißsell, "and he - asked ' Gifford if he was sure there was a renewal tlause ia the lease, to' which Gifford replied he v/a3 quite certain, and H-&' -would see Mr Lethbridge tc ' make" sure.' Bussell v.-ishf»d to ' Sflc t%6> lease''' which, however was held by Dalgety and*'Cd. Later on Russell took* his" wife to" see the place, and on meeting Gifford was told i!hat Mr Lethbridge^'had beelt interviewed -axA abated that there 'was a ienewa! I ' clause- in- the le?se. GJfford then accepted £140tt'fo* th? lease, and on their way home to "Wanganui, Rusaell and his wife called at Mr Forlong's, where Mr Str-cne wrotti out an agreement which Eiipsrfl signed, and paMaown .1100 as. a deposit. Afa meeting at Russell's house on th-» 22ftd of" August, at which Russell and his wife, and Messrs Chapman, Giffford and 1 Bowater Svere present Gifford again stated,' during a conversation, that the. lease contained a re'hewal clause for' 7 years ' ori the flame terms. On the 23rd inst., Mr-GoTdon obtained Mr Lethbridge's copy of- the lease, and found, to his amazement that it did not contain a renewal clause. (Mr 1 Treadwelt mentioned* "that he did riot think Mr Gifford was" acting' disiionestly. "but 4 was also under misapprehension). On ' the parties meeting at MT.Ctoxdon'-s.* office on the 24th to complete the purchase; Mr s Gordon produced the lease' and "iaid there .was no renewal clause, whereupon' Gifford said he ivas absolutely certain there was, but on going thro tgh the* 'document -wiVL Mr Gordon; found that it was inissing. Russell therefore declined to conclude tho ' purchase, hence the 'proceedings in 'Court, filed on ghort notice. Giffor4 went out to see Letfrbridge, as he Was certain the'latter thought there ■ wae % fenewal clause, but nothing resulted. In answer t6 Mr Cohen, Mr' Gordon said he had not heard that the renewal spoken of" was a provision in the lease for ail extension at the end bf 6 years, by the pay-ment-of 5 per" cent. oaTthe' capital.. Mr Cohen said he had been instructed that Mr Gifford had ' not made unjr- representation of a renewal" clause ■ ether /than that mentioned in Mr-Gt>rtt«fi3 're-ply. He could not, after hearin^the eVidei^e given by Mr Gordon,' whom lie believed to be a straightforward member of* the pt6fessk>n, advise his client to go on with the. case and would consent to judgment for defendant. '

Mr Treadwell intimated that he would not afik for costs.

His Honor said he thought Mr Cohen > client was exceedingly well advised in d!6sing the cate and eonseßtting 1 to 'judgi tnent, wWch would be in -favour of de»' fendant on both the claim j 'and counter--claim, A withou.t CQS,tjgf. -J-'..;.