SALE OF A FARM.

Ashburton Guardian, Volume XXXVII, Issue 9128, 25 October 1917, Page 3

SALE OF A FARM.

ALLEGED BREACH OF

AGREEMENT

•JUDGMENT FOlt DEFENDANT,

At the Supreme Court yesterday, before his .Honour Mr Justice Sim, James Smith, Mayfield, and John W. Bowden, public accountant, Ashburton, executors and trustees under the will of tho late Edwin Parcell Thomas, proceeded against Frederick Parcell Thomas, lately of Wakanui, but now of Spreydon, claiming the sum of £115, damages for an alleged breach of 'agreement. Sir Purnell, with.Mr Dougall, appeared for the plaintiffs, and Mr Cassidy for the defendant. Plaintiffs' statement of claim stated that under the will of the lato.E. P. Thomas, they were empowered to sell | certain land leased by -Ihe defendant, who was a beneficiary under the will, and it was agreed with him that, he should "allow the purchaser to undertake certain ploughing work. The tenancy expired on. A]..ril 30 last, but it was decided to offer the farm for sale before that date, and to allow. the pilrch&ser to plough^the 1 and£;April, or* May being the best time for ploughing. Defendant called {it Bowden's office 'on February 19 and.2o, and agreed 'to allow the ploughing to be; '.done 1' by ■ any purchaser. Tlie plaintiffs' gave, instructibhs. for. the sale of the farm 'by auction and inserted in the coriditions a! right to plough the l&nd before tak.in^ possession at .the end "of April. At the auction there was; no" bid,- but three days later, a Mrs Amos purchased the land, being induced to do so by ; the clauso allowing her to skim-plough 1 the., land before, taking possession; Mrs Amos already, owned the adjoining-; farm. Defendant subsequently.;.refusedto allow the ploughing ,to- bo done.

John W. Bowden gave particulars of the will, and said that defendant on February 19 called at witness's office and agreed to allow the ploughing .to; he done by any purchaser of the farm.) The auction of the farm •.-, was postponed to suit defendant's convenience. Had he not agreed to the ploughing the sale would not have been authorised by the executors. On March/2 witn&ss visited the farm, and in a general conversation with defendant the subject of ploughing was referred to. The subject of a reduction: of rent to defendant was discussed, and it was agreed to make "him .an allowance from the time any, purchaser- commenced plough-;' ing to May 1. The farm was sold to Mrs Amos at £30 an-acre, being £1 advance on the valuation made for the executors. On April 2 he received a letter from her threatening to sue for compensation! as the defendant had refused her permission to plough the landi ' Defendant was written to, and he -called on witness, who asked why he^refuscjd ; lo allow Mrs Amos to ploi'ftjlV the land. Defendant said: ""What am I getting out of it?" Witness referred to the reduction of rent, but defendant declared that was no good to him, and-he'.wanted £100, to include £23 for a windmill. AVitness said the demand was absurd. Defendant persisted in his refusal to allow the ploughing* to be done. Mrs Amos I took possession on May 1, and subsequently claimed £278 as damages. Mesrs' Begg and Doak, on behalf , of the trustees; made an expert /report, ( and eventually Mrs Amos vs claim was settled by :i payment of £100. A total of £15 was also incurred in experts' and lounl fees. ; >• „ . ",- To Mr Cfissidy :'-■*-. Defendanti at' "the first interview never demanded a lump sum to surrender the tenancy before May 1. [ Arthur Bush oil, clerk in the employ ! of the previous witness, said that defendant called at the office and agreed to allow the land, ii'_ sold, to be ploughed. Henry Arthur Lloyd, auctioneer, said that ho visited the farm with Bowden on March 2. On that occasion defendant agreed to allow any pur.chaser to plough before defendant's tenancy expired. When Mrs Amos was negotiating: for the property, witness told defendant, and he said, "Let her buy it." Mrs Amos agreed to buy, but said that if defendant wanted it sho would forgo her option. Witness interviewed defendant again, but again he declined to purchase. The contract was then signed with Mrs Amos. The ploughing clause was always given when asked for. It was the usual custom to allow an incoming holder to get on .with "the ""work.". William Robert llainey, farm labourer, said that he was in the employ, of Mrs Amog in April last. After she purchased defendant's farm witness was ploughing her land, When defendant came along the road and, after some conversation, warned the witness !to keep off the laud he was leasing. I Later, Mrs Amos sent him to plough part of the property leased by defendant, and he worked, three days, when defendant came along and told him to get off. „. Agnes Amos,.., widow,.''.said that defendant refused to let h^er plough the land until his lease was'uj),' as the j?xec.i#ors"wei*e ■nqji.^ying .hjm enough lor the . privilege.'.",-.; 1, John Cairns, farmer, ancf James Robert Begg, 'farmer, gave . expert evidence as to the loss sustained \fs Mrs Amos through the delay-; iji ploughing. , This closed, the case for the plaintiff.' Defendant,-- giving .evidence, denied agreeing '.with: Bowden to ''permit any purchaser of the -property to have possession before witness's, le,&se'. was' up. He agreed to go if given ll'a lump sum. He had always wanted to .purchase the farm hnflself, but did .not say so, because he thought the price would be run up. A rebate of a month's rent to him was never mentioned. Everybody about the place-was talking about the sale, and seemed to know more about it than he did. He did not go to the sale of the land< His Honour: Why didn't you attend if you wanted to buy ?':.' Witness:, I thought it would be passed in, as there was not much demand for laud at the time, owing to the dry season. Continuing, witness said that Lloyd asked,him to make an offer, otherwise he would lose tho place. Later, Lloyd told him that Mrs Amos had bought tho place, but would not say how much she had paid. Witness asked for a day or two, when he might be prepared to pay £32 an aero, but Lloyd refused. At witness's clearing salo a week later lie asked Lloyd if it were

still possible for him to buy the place, and Lloyd, said no. Later, when asked, by Mrs Amos, he refused to lot 'Sher burn the straw on the property, because of the possible danger; and, as regards the ploughing, he asked her to get written authority from the trustees. He'called on Bowden and asked what 'he was to get to^'go out of, the place, agreeing to leave if paid £70 to £90, which included the value of a windmill erected by witness. Bowden declined to give him any Jump sum, and sppke ot -Court proceedings. There wero 'about 600 -isheep and' 20 grazing on the property. . To Mr Dougall: He "could not have entertained a cash transaction to get the property. Under the prevailing conditions it was of no advantage to Mrs Amos to have ploughed in April. He had told his brother that he would leave the farm any time it he were paid a lump sum for doing so. His Honour said that the witness was contradicting every other witness. He (his Honour) would say at once that he did not believe the witness, who might have a weak memory. Addressing his, Honour, Mr Oassidy said- that the re*- was. an ontiro absence of any agreement in writing, the case for the plaintiff depending on casual remarks., The compensation to be paid to defendant was never mentioned until after the sale. Under the statute any agreement concerning the surrender of land must be in writing. Mr Purnell and Mr Bongall having replied,, his Honour said that it was clear fr&m the evidence that tnerchad been an understanding between the parties that the defendant should grant a license to any purchaser of the farm to do ploughing or other necessary farm work, but at the time and to April 2 there was no arrangement made as to the reduction of rent to be allowed to defendant. That seemed to suggest that the subject of the consideration to be given.- to the defendant' had not been discussed. Under the circumstances it would be •impossible for luni (his Honour) mto find any consideration for; tho granting of the license. It was simply a nudum .paetunij -and the plaintiffs were therefore not. entitled to recover , damages, 1 and judgment must bo found for the defendant. " In view of his conduct, ■'

however, which had been throughout reprehensible, he would not be allowed costs.. ...'.>■■ '.■'■■

Tlie Court adjourned to 10.30 a.m the following tl.ay.