JUDGMENT FOR £5241.

Auckland Star, Volume LVI, Issue 243, 14 October 1925, Page 8

JUDGMENT FOR £5241.

AGAINST F. C. HAND.

HAMILTON LAND CASE. ELDERLY COUPLE'S CLAIM. (By Telegraph.—Own Correspondent.) HAMILTON, this day. An action, recently heard at Hamilton, owing its origin to what the judge termed "one of those ill-famed and unsatisfactory transactions in respect of land, known as exchanges," was brought to a termination this morning, when a judgment by Mr. Justice Herdman was read at Hamilton. The plaintiffs, William Allen Paterson and Jane Paterson, alleged that in his dealings with them, the defendant, Frederick Charles Hand, had been guilty of fraud, or, in the alternative, that in his capacity as their agent, he had been guilty of a breach of duty. They also claimed to recover a sum of £600 for breach of an agreement which defendant made with them to postpone exercising the power of sale conferred upon a mortgage by a certain security given over plaintiffs' property. In all, plaintiffs claimed to recover from defendant the sum of £15,150 by way of damages.

"The plaintiff and his sister appear to mc to be elderly, unsophisticated people who occupied a humble position in life, managing to eke out an existence upon small means," said Mr. Justice Herdman. "Miss Paterson had at one time been a school mistress in Otago and was possessed of a little property of her own. Latterly, in partnership with her brother, she owned a farm and stock at Te Poi, near Matamata, which became involved in the exchange transaction. Defendant carried on the business of a land agent at -Hamilton, in conjunction with one Whittaker, under the name of The Farmers' Land Agency Company.'"

An advertisement in a newspaper attracted the attention of Mr. Paterson, who desired to retire from the farming business and secure a safe investment for himself and his sister, so lie made up his mind to interview Messrs. Hand and Whittaker for the purpose of obtaining more detailed information about a security which was in their hands for sale. His Honor went into the history of the mortgage and plaintiffs' subsequent dealings with Hand and Whittaker. '

"The Patersons' complaint is that defendant Hand represented that he w-as acting in connection with the sale of the mortgages for a very wealthy man; that he had put through £200,000 worth of sales for him; that he had sold this property, containing 10,000 acres, for his client for £40,000, and that the mortgage of £17,650 (taken by plaintiffs) represented the balance of the purchase money. The wealthy man must have been Slater, who at one stage in his evidence said he was worth £60,000 in December, 1920, and later on computed his wealth at that time to be £35,000, but who, notwithstanding his riches, very soon got into difficulties with the Te Poi mortgage, and who, with a haste which one might describe as indecent, sought to quit the mortgage of £17,650 at it's face value, apparently quite prepared to sacrifice commission that he was liable for and the stamp duty and law costs incurred in connection with the exchange transaction with the Waiopehu Company. Slater's descent from affluence must have been speedy, for I find that when Mr. Hanna gave up the submortgage of £6000, Slater gave him an unregistered security over the Te Poi stock to secure £1000 which he owed to Mr. Hanna."

"Mr. Paterson understood from defendant's statement that there had been a sale for cash, and that the mortgage represented a balance of purchase money, the remainder having been paid in cash. Mr. Paterson does not allege that Hand said anything about an exchange, a transaction which, of course, differs materially from a sale for cash. His charge is that a sale was mentioned," continued the judge. "That the representations made by Hand that there had been a sale of the propertj' for £40,000, and that the mortgage of £17,650 represented the balance of purchase money induced the Patersons to agree to the exchange I have not the least doubt. If it was made it was an intimation to Paterson, who was acting for himself and his sister, that they need have no fear about the soundness of the investment offered, and the statement subsequently made by his partner (Whittaker) about Mrs. Pennikett's farm could only be interpreted by Paterson in one way. "How, then, did the Patersons stand when they took over the mortgage?" asked his Honor. "They received a security worth, say, £3284, they received in cash £500, gave away in stock and implements £3300, the equity in a farm worth, say, £5000, they paid for commission £475, and legal costs and stamp duty, about £250. Their loss, then, would amount to £5241.

"I have not troubled to take into account the alternative claim for a breach of duty, 'believing that there is enough evidence to justify a finding of fraudulent misrepresentation. Nor do I think it necessary to deal at length with the claim for £600, as I am unable to discover on what legal ground this claim is based." In this connection defendant appeared to have "kept to the letter of his bond."

Judgment was given for the plaintiffs for the sum of £5241, with costs and expenses. At the hearing Messrs. A. Blair and Adams appeared for plaintiffs, and Mr. G. P. Finlay represented defendant.