SUPREME COURT.

Auckland Star, Volume XLVII, Issue 168, 15 July 1916, Page 8

SUPREME COURT.

; CIVII. SESSIONS. f INVOLVED LAXD DEAL. i EXCHANGE OR SALE? : At the Supreme Court yesterday, be fore hie Honor Mr. Justice Hoskinp, George William Ernest Fenton, for whom Mr. H. H. Ostler appeared, pro- • ceeded against Cecil Norman Bamfll Mar- ■ don. settler, of Auckland (Mr. J. R. ■ Reed, K.C., and Mr. M. The plaintiff, in the statement of claim, said that in April, 1915, he entered into agreement with the defendant to sell to him certain lands. The lands agreed to be sold were an allotment and a sixhouse in Dominion Road, for which the price was £925 (less a mortgage for £213); an adjoining section, for which the price wae £325, and a section at the corner of Paice's Avenue and the New Edendale Road, for which the price was £150. The plaintiff now asked that the defendant be ordered specifically to perform the agreement and to pay the purchase money. A sum of £200 was also claimed in respect of the defendant's failure to complete tltc agreement. The plaintiff asked, alter nately, that the defendant pay a sum of £501 for general damages. The defendant admitted that he signed the agreement with the plaintiff, but stated that on the same day the plaintiff and lie executed a further document which stated, inter alia: "C. A. Mardon agrees to sell part of Section 22a, containing 47 acres and 6 acres, township ( sections, fronting Te Kauwhata Road and Mercer Eoad, for the sum of £932." The plaintiff and he agreed to exchange their respective properties. He was ready to complete the exchange, but the plaintiff had refused to do so. In his evidence, the plaintiff eaid that • defendant had been in possession since a week after the agreement was signed. Witness had not been paid anything in i respect of rent or of the contract. C'rocs-cxamined by Mr. Reed, witness eaid that he had not realised until now the importance of showing , that the deal was not an exchange. Mr. Reed: Do you understand what perjury is?— Yes, I have an idea. Now, I ask you again: Do you per- ■ siet in saying that the arrangement was [ not an exchange?—lt was a sort of cxi change, and can be looked on ac an exchange. [ Did you not consider that by transferring your property to Mr. Mardon, you have already paid for Marden's property with your house?— Yes, that is co. Mr. Ostler re-examined the witness in L respect to the question of exchange. The defence submitted that the transaction wae in the nature of an exchange, ! and that therefore the plaintiff could I not enforce specific performance. The statement of defence eet out that two agreements had been entered into at the ' sime time. The defendant admitted that he signed the agreement mentioned in the statement of claim, but contended , that,- contemporaneously, he signed an other agreement. The defendant did not L at any time (says t)ie fttatement) agree : to purchase the plaintiff's prpperty, but , the whole transaction was an agreement :to ... , .... -... .:.■'. .... : Mr. Ostler proceeded to call evidence , with the object of showing that the . reason why plaintiff had not carried out the contract to purchase the defendant's land was that the agreement had been brought about by misrepresentation, a statement having been made that the land wae not subject to floods. His Honor etated that such evidence was not relevant at that stage, although he thought it was open to the plaintiff to bring another action for damages. Mr. Reed moved for a nonsuit. Mr. Ostler objected to the introduction of , any extrinsic evidence as to what happened when the documents were signed. There was nothing, on the face of the agreement, lie contended, to show that the transaction had been an exchange. On account of the large number of country witnesses in another case who were present in Court, the further hearing of legal argument and Mr. Reed's motion for a nonsuit, was adjourned.

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