A LAND TRANSACTION.

Press, Volume LX, Issue 11751, 27 November 1903, Page 3

A LAND TRANSACTION.

THE HESLERTON ESTATE. An action brought by Septimus Keith Garrick, of St. Albans, against James Copland, of Chertser, for specific performance and damages, was commenced at the Supreme Court, yesterdji-y morning-, before Air Justice DfnnisSon. Mr Skerrett, with him Mr Fisher, appended for th« plaintiff, and Mr Harper, with him Mr Maude, appeared for the defendant. Mr EuMcil obtained leave to watch the cuse on behalf of Matsoa and Co. The state ment of claim set out tliat by agreement, dated July 7th, 1903, defendant and the plaintiff entered into an arrangement for the eata and purchase of Heslerton Estate, containing 11.972 acres of freehold land, at the price of £26.000, which was to include additional leasehold land. Ten per cent, of tiie purchase money was to be paid in cash, 15 per cent, on possession, and the balance witliin three or five yearn, t.!ie interest being fixed at 4$ per cent. Possession was to be given on August Bth, 1903, and the purchaser was to have three months from the date of the agreement wherein to elect to take a tnanstfer. The agreement also provided that if within the said period of three months the purchaser should sell any lot. or lots the vendor would at the request of the purchaser execute a transfer ti> such sub-pun-baser, end accept a mortgage over such lot or luti? to secure three-fourtlis of the sum for which tin* same should be sold. The .pUiutiif had paid his deposit of £2600, and had been always ready and willing 1<» carry out his part- of tiie agreement. On July 30th, 1903, the defendant, by his solicitors, wrote to the plaintiff, stating that he (the defendant) did not intend to carry out the agreement, and he gave notice in writing to the plaintiff's Mib-purcha*ers not tt> pay any further money to the plaintiff. After tho date of purchasing the estate, the plaintiff re-sold the whole of the same in lots to various purchasers thereof, os the defendant well knew, and such purchaser!* were ready and willing to carry out their respective" contracts The plaintiff prayed judgment that the defendant should transfer to the plaintiff or to his sub-purchasers, at the election of the plaintiff, the said property within the time aud according to the terms mentioned in the agreement, and that the defendant should pay tne planitiff the sum of £1000 as damages for refusing to carry out tho contract.

The statement of defence net forth that tins defendant denied making any acree ment as set out in the claim. He denied that the plaintiff had paid him £2600 a sum equal to 10 per cent, of the purchase money of the estate, and that he gave any receipt for it, or that on or about July 30th, 1903, he wrote to the plaintiff. He denied that the plaintiff purchased the es tate at any time, and that he re-sold it, or any part of it, and denied that he knew of any purchase or re-sale, or that any purchasers were ready to cany oat contracts for male to them. He denied also that the plaintiff wa* entitled to the Heslerton Estate, or that it was subject to any agreement. Further, on June 20th, the defendant had instructed H. Matson and Co. to sell the Heslerton Estate. Plans were prepared, showing the lots to be sold, and the estate was advertised for sale by private contract.. Leicester Matson and David Matson Mere members of the firm of Matson and Co., and the plaintiff waa their brother-in-law, and was at the time of the signing of the agreement employed by the firm. The plaintiff was well aware before, and at the time of making the agreement, that the firm was acting aa the defendant's agents, and the plaintiff and the two Matsons were aware before the signing of the agreement of the existence of on offer for Lot 2 by one James Henderson, and of enquiries by one James Nixon, for portions of the estate. The plaintiff and the Matsons were aware that, the defendant desired to dispose of lots 1 and 2 before accepting the offers for the remaining lots, and that it would be of advantage to him so to do, having regard to the estate as a whole. The eaid Leicester and David Matson, as agents for the defendant, and whilst in a- fiduciary position fraudulently and with intent to induce tho defendant to sell the estate as a whole to the- plaintiff, and acting as the agent of the plaintiff for that purpose and towards that end, urged the defendant to come to tiie house of the said Leicester Matson, near Cliristchurch, late in the evening of July 7th, 1903. At such place and time, the Matrons fraudulently represented to the defendant thut it would be impossible to sell the estate in lots', and advised the defendant to sell the same as a whole to the plaintiff at tho price named in the agreement. The defendant met the plaintiff at the house in company with James Goodman, solicitor's clerk. The plaintiff's name hod previously been mentioned to the defendant as being a possible purchaser of the estate, but the defendant was unaware, before going to the house, for what purpose liis attendance was required, or that he was to meet the plaintiff there. The plaintiff and the Matron Brothers did not at any time previously to the signing of the agree- ] ment disclose to the defendant tho fact that James Henderson had made an offer for lot 2, or that J. Nixon had been making enquiries about, lot 1, and they fraudulently concealed, the (same from him. The defendant, relying on the representations of the Mat sons, and being in ignorance of the inquiries made by Nixon, and the offer made-by Henderson, and of the position ot tiie plaintiff as regards the firm of Matson and Co., signed the agreement on July 7th, which was prepared on that date at the house of Leicester Ma tion by Goodman for the plaintiffs. Shortly after July 7th | the defendant discovered that Henderson hod made such an offer, and Nixon had made such enquiries, and that these two had, together with other persons, become purchasers of all the lots comprising the estate, at an aggregate price considerably in excess of £26,000. The defendant on discovery of the foregoing matters, repudiated the agreement, and gave notice ot his repudiation to the plaintiff, and had tendered to the plaintiffs the sum of £2600, being the amount of cash paid as deposit in accordance witJi the agreement. The defence also alleged that the Matson Brothers, disregarding their duties as agents for the defendant, acted as agents for the plaintiff by agreement with him in procuring for him the sale of the estate at the price stated in the agreement. The plaintiff had arranged with Leicester and David Matson thr.t they should act as the agents of the plaintiff for the re-sale of the estate, or the parts thereof remaining unsold, and that they should be paid a. commission of 10 per "cent, on all sales in excess of the sum of £26,0C0. It was also arranged that their appointment as such agents should bo irrevocable by the plaintiff. Neither the plaintiff nor the Matsons disclosed to the defendant the existence of such an arrangement, and the defendant was unaware of the same until after the commencement of the action. By rea-on of t'e premises, the said Leicester and David Matson were induced to,'and did, disregard the interests of the defendants on the sale of the estate to the plaintiff. *

Evidence was then given in support of the plaintiff's case.^ James clerk, etated that the agreement produced was executed at Mr Leicester Mutstin's residence, on July 7th. Ou the following morning he had an interview with Mr Molineaux, the manager of the Bank of New .South Woks. There were present the defendant, his manager, Mr Baifour, the plaintiff, and himself. He explained to the manager of the Bank what had been done the previous evening with regard to the sale of the Heslerton Estate. The manager said the agreement seemed a very fair one, and the Bank would have no objection to it. In couive of conversation Mr Garrick asked Copland not to tell anyone of A-j sole, for it might affect his "re-selling, and he thought Mr Copland replied that he hoped Mr Garrick would let Sowden have certain lota.

To Mr Harper: 31r Bruges did not act as solicitor for Mr Garrick. He had been asked by Mr Luiicesttr Matson to visit. his bousa on the evening of July 7th, in case an agreement was wanted. Leicester Mataon told him tTiat they had got th* H>slerton Estate for sale, and had received offers for lots 3, 4, and 5 in excess of the reserves. £Da also «uu*d that no

offer had been received for lot 1. while that for lot 2 waa under reserve. Mr Matson asked whetlwr they could sell theestate as a whole, for they thought Mr Garrick would purcbaise it at a price- equal to the reserve. He replied that it would net bo wife to do any suci thing without placing the whole mailer before Copland, and getting his consent. He arrived at Mr Leicester Matron's house at about halfpast eight oa the evening oi Juiy 7th, and Mr Copland,, accompanied by Mr David Matson, arrived shortly afterwards 1 . Mr Garrick was not tailed in until shortly before ten o'clock. He (witness) drew up the agreement at tlio request «f Mr Leicester Matson. Mr Copland liad l>e*n in the house over an hour before the agreement was drawn up. To Mr Skerrett: When Copland arrived Mr Leicester -Matson informed him of the offers that had been received for the different lote, and Mr Copland enquired whether it was either Hendor.«on or Nixon, and Mr Matson replied tliat it was. Mr Matson advised him that the surplus over the reserve placed oh lot* 3, 4, and b. ehould be credited against, lots 1 and 2. 'The homestead lot, he added, would sell like ""ripe cherries'' any day, and the whole estate, if Bold as he recommended, would fetch mow than the reserve. Mr Copland stated that he would not sell any lots until he had sold lots 1 and 2, and he would not reduce his reserves ou tho.'io luts. Mr Mat.suii pressed Copland several times to ee!l 3, 4, and 5 ut an enhanced price, and to reduce the price of 1 and 2, and he guaranteed that he would come out right, but Mr Copland would not consent. Mr Matson then told Mr Copland that ho. thought Mr Garrick would make an offer for tho lot, and that he could be persuaded to give £25,600 for the whole property. Mr Matson went out of the room to fetch Mr Garrick, and while he was gone Copland increased his price to £26,000. Considerable discussion followed after Mr Garrick entered, and eventually Mr Garrick agreed to give the £26,000 on condition that Copland would leave for a term on mortgage three-fourths of the purchase money from Mr Garrick's sub-purcluiser. Copland at first objected, but ultimately he agreed on the understanding that "Garrick ehould guarantee the mortgages. Mr Skerrett put in four Bub-purchase" contracts, and tho case for the- plaintiff closed.

For the defence, James Copland, the defendant, stated that in June last- he purchased the Heslerton Estate from the Bank of 2\ew South Wales for £27,000. This sum included stock and implements, which were valued at £658 ls. On June 20th he met Mr David Matson at Ashburton, ana Mr Matson asked him ho give the firm the aile of the property, and eventually ha put it into their hands for sale. Afterwards he signed a document authorising Matson and Co. to sell the property, and instructing them as to the minimum prices at which they were, to sell. He heard from Matson and Co. oh. July 6th, that a man named Sowden had offered to purchase lota 3, 4, and 5. He saw Sowden at Matson's oilice, but did not close with him. Mr Balfour, the manager of Heslerton for tho | Bank, had told him that a man named Hender.ton was likely to buy one lot if tiie place waa sold in lots. On July 7th he received a telegram at Chertsey from Matson's, and in consequence he came to town by the express, and was met by Mr David Matson, and driven to Mr Leicester Matson's house. During the drive David Matsou told him that Mr Garrick would probably purchase the property as a whole. He had never heard of Mr Garrick before. When he got to the house, he met Mr Leicester Matson, Mr Balfour, and Mr Goodman. He did not know Mr Goodman before, and did not know what he was there for. After some time, Mr Garrick was called in, and iie was asked whether ho would give £26,000, tiie price asked. Mr Garrick inquired whether lie (witness) would find the money, and he replied that he would find three-fourths of it, Mr L. Matson thereupon asked Mr Goodman to put the matter in writing. It was suggested that he should find threefourtlis of whatever Mr Garrick sold the lots for, but he objected, to that. The agreement was read over to him, and it was arranged that th© manager of the bank ehould. be seen as to whether the bank would consent to the substitution of the sub-purchasers. He saw the manager the next morning, in company with Mr Goodman and others, and the manager said the agreement was a fair one. Shortly afterwards he saw Mr Sowden, who stated that he had purchased lots 3, 4, and 5, and Mr Henderson, who said he had bought lot 2. He then came to the conduction that a plan had been mapped out on the 6th to get him to sell the property to ! Garrick on the 7th in order to deprive him of the profit, and that was the conclusion he still held. Nixon afterwards bought the homestead block. Lot 6, valued at £2 17s per acre, was sold to Nixon for £410s. If he had known of Henderson's offer of £3000 for lot 2 he would not have'sold to Garrick. If he had accepted Sowden's and Henderson's offers he would have had £19,443.

( To Mr Skerrett: Ho obtained information from the bank as to the value of the stock and implements on the estate before his offer of £27,000 was accepted. He paid £1000 on June 6th, and £20,000 of the purchase money on July Ist. He realised £26,000 from the land, and about £7400 for the stock. He hod also sold some sheep to the Fairfield Works. Before purchasing Heslerton from the bank he inspected the land, and went over the property twke. He was not thoroughly acquainted with the. value of land of the Heslerton class, for it differed in type from any other he had previously bought and sold.

The cross-examination of this witness continued until nearly five o'clock, when the Court adjourned till half-past ten this morning.