MAGISTERIAL.

Bush Advocate, Volume XXIII, Issue 87, 13 April 1911, Page 2

MAGISTERIAL.

The following is the text of the judgment in the csao Hebcr Gebbio (Mr Fitzhcrbert) v. Norman Leslie Gurr (Mr Lusk), claim £7O, in respect of an alleged false representation, or in the alternative for breach of contract : The plaintiff is a journeyman bootmaker, with nothing but his wages to rely on for his support; the defendant is a commission agent. At the time of the events hereafter to be detailed, the plaintiff had £SO on deposit in the Post Office Savings Bank. This was all tho property he possessed, with the exception of his household furniture. In December, 1909, one Reginald Alexander, placed in defendant's hands for sale a small house property situate in Dannovirko. Alexander had previously submitted tho property to plaintiff, who had told him the price asked, £450, was beyond his means. The defendant saw plaintiff at the latter's employe;-'s shop in Dannevirke, some time prior to December 23, 1909. The following is plaintiff's account of what occurred, then and subsequently:—"Gurr asked me if I thought of going in for a place. I said I had been talking about it. Ho said 'Why not go in for that place of Alexander's?' I said I had already seen Alexander and tho place was too much for me. Gurr said 'How much could.you put in ?' I told him I was not quite certain, but I would see. The conversation then dropped. Gurr came to the shop two or throe days afterwards. He asked me about the place. I said 'No use my thinking of it." Be said placo could be easily managed, easily financed. He went away and brought Alexander. We had a short conversation. Then, because I told him it was boss' time, and that he would have to see me outside of boss' time, Gurr said 'Make an appointment, then ; at my office in the dinner hour.' Alexander and I met at Gurr's office afterwards. I believe it was the next day. lam not quite sure. After some conversation Gurr asked me how much I could raise. I said I thought I could get £SO. Gurr said that is enough, because I can got the balance from the Government easily. I said 'How would you get the money from the Government?' he said 'I am a Government agent; I can manage that all right.' Alexander said that £SO would be no use to him. Gurr said 'I can finance the rest.' Alexander said 'On those conditions I will sell.' Gurr drew up the contract of sale ■ I fancy Alexander signed it; I would not sign the agreement then because I was not certain. I knew nothing about the thing; I said I did tiot want a place that would run me into mora money than I coxild pay. I did not then take the agreement home. I asked Gurr if he could make some enquiries as to what it would cost, and as to what he could raise on the place. Gurr came into the workshop shortly afterwards. It might have been next day. Gurr said he had made enquiries and found he could raise £4OO on the place, and it would cost me 2s Id per week per hundred. Gurr asked me to go into the office and see him again ; I took the contract home; I kept the contract a day or two. I called again at Gurr's office, and saw Gurr and said to him 'Are you sure you can fix mo in this thing, i.e., finance it-?' Gurr said without any trouble. On these conditions I signed the contract; I left all matters to Gurr for some time. I paid £SO deposit on the contract on its signing."

After the contract was signed plaintiff entered into possession, and defendant made out an application for a, Joan under the Advances to Workers Act, in '\vliich the property was greatly over-valued. This application plaintiff signed in defendant's presence, and defendant forwarded it on. Plaintiff's statement is, in the main, corroborated by Alexander, except that the latter says Gurr did not definitely say he was agent for the Advances to Workers Office. The defendant denies point blank he ever undertook to procure a loan of £4OO on the property. I believe the plaintiff's story. In tho result, a loan of £4OO could not be obtained on the property, and pursuant to the contract of sale, plaintiff's £SO deposit was forfeited, and ho was ejected from the property at a cost to himself of £5. On plaintiff being threatened with ejectment proceedings, defendant advised him more than once not to give up possession. At the hearing I decided that an action of deceit had not been made out. lam still of that opinion. Defendant did not wilfully make a false representation as to an existing fact. Tho utmost that can be urged against him is that he made a promise to secure a loan of £4OO for plaintiff on the property. Council for plaintiff must have felt the stress of this, because in clause 6 of tho statement of claim, it is alleged that, relying on defendant's representation and undertaking, plaintiff paid over tho £SO to him. DicL, then, plaintiff make such a promise, .and, if so, did the promise amount, in law, to a contract? The net result of the various conversations between plaintiff and defendant is this : Plaintiff in effect said to defendant: "I am willing to buy the property, but, understand, I can only put up £SO ; if you can finance the rest I will buy." The defendant, after an interval of a day or two, during which he told plaintiff he had made enquiries, said he could finance the balance. On the faith of that statement, plaintiff handed over to defendant, as Alexander's agent, tho £SO, and signed the contract of sale, and, having deducted his commission, defendant handed the balanco over to Alexander. In my opinion, wo have hero all the elements of a contract between the plaintiff and defendant, whereby, for good and suffi-

cient consideration, the latter contracted to procure a loan of £4OO for plaintiff. Tho statement by defendant, under tho circumstances, unclet which it was made, was a contract to procure tho money. Indeed, if defendant was unable to procure the loan, he would not have been entitled to Ins commission, from Alexander because, without the loan, plaintiff was .admittedly unable to complete the 'purchase. In my opinion, plaintiff is entitled to judgment, and I assess the damages at £,65. Judgment accordingly for that sum, together with costs.