A CURIOUS TRANSACTION.

Press, Volume LXII, Issue 12202, 24 May 1905, Page 8

A CURIOUS TRANSACTION.

— * CLAIM FOR SPECIFIC PERFORMANCE.

At the Supremo Court yesterday, before Mr Justice Cooper, Michael Mo Kendry claimed from Thomas Cecil Harding specific performance or damages in respect of a failure to carry out an agreement for the sale of a 50 acre section for £1190 13s 4d. Mr Harper appeared for tho plaintiff and Mr Stringer for the defendant. Mr Harper said there was no denial of the contract, but the question in dispute was ono raised by the defence as to notice of a previous agreement for tho sale of the property, and that tho defendant was illiterate, and ignoranco of business. The plaintiff had had no notice of the previous agreement to sell tho land. Mr Stringer said the circumstances of tho case were peculiar. The defendant Harding was an ignorant and illiterate man. He had put hi 6 property in the hands of Mateou nnd Co. for sale, who had sold to Mr Prebble. The defendant, executed an agreement, and afterwards a transfer in tho statutory form. While matters were being arranged, McKendry and a man named Bailey, n clerk in the office of Messrs Maudo and Harman, who added to their business of solicitors that of land agents, got Harding to sign tho agreement on which th.? .action was brought. They wero told that Harding had already agreed to sell to Prebble, aud they asked him questions as to whether ho had signed documents at Matson's, and he said ho had. They then told him that they would get him 10s per acre more, and that ho could sign an agreement. When the agreement was signed Maudo and Harman promptly put a caveat on the property. His Honour said it was not usual to put on a caveat when the dealing was with an honest man. Mx Stringer said that Maude nnd Harmon knew that Prebble had got a contract, and thought that they would get a caveat on the property. It was perfectly obvious that tho plaintiff could not get specific performance, tor tho defendant had an equal equity, was first in point of time, and had posses.ion of tho property. Evidence was then called by Mr Stringer. Harry Matson, member of the firm of Matson and Co., said that the defendant Harding possessed crude ideas of business, but since December last ho had been worse. In September Harding had asked his firm to sell his property, and on December 9th tho property was sold to Mr Prebble. Joseph A. McGeo, clerk in Matson and Co.'s office, said that the transfer produced from Harding to Prebble had been signed by Mr Harding. Harding was sober at the time ho signed tho transfer. James Walter Prebble, farmer, Prebbleton, said that Harding knew very little about bisineas. He was fairly steady while en the farm, but when he came to town towards tho end of Doceir.ler last ho gave way to drink. On December 9th witness had ugreed to purchase tho property, and ho took possession early in February, On February 9 th ho was informed that a caveat had been placed on the property. . James Bailey, farmer, Prebbleton, stated that he had heard from his brother William that Mr J. W. Prebble had bought Harding's property, and afterwards saw his brother Arthur, who was a clerk in Maude and Harman's land department, and a man named Murray inspecting the land. He told them that he had heard that Mr Prebble had bought the land, and his brother told him that he had brought Mr Murray out to inspect the land on behalf of someone else, and that if ho could sell tlio land he would do bo. That occurred ou February 3rd. His brot!__r had asked him about the price Prebble hod paid, but ho could not tell him. Prebble's homestead was about three-quar-ters of a mile away. A few days afterwards he heard that McKendry had bought the property. To Mr Harpar: Ho valued the land at £24 an acre. Thomas Cecil Harding said that he had been told that Prebble had bought his property through Matson and Co., and he had signed tho transfer. Later ho met the plaintiff, and drove out with him to the farm. He told McKendry that Prebhle had partly bought the farm. A few days later Arthur Bailey met him in the Zetland Hotel between 9 and 9.30 p.m. They had one or two drinks, and ot Bailey's request ho accompanied him to the office. He was then somewhat muddled by drink, and when Bailey asked him to put hie name to some papers he did so. Ho did not Know what he was signing, for ho was quite muddled. Some correspondence which had passed between the parties was put in, and tho case for the defendant c-oeed. Mr Harper, in opening for the plaintiff, said that there would bo a good deal of conflict concerning the facts ot the case. Michael McKendry, the plaintiff in tho action, said that ho was a farmer living at Greenpark. He had known the defendant for tho last four or five years. About January 12th last he met Harding in town and Harding spoke to him about buying tho land. Ho said that ho would not buy it until ho had seen it, and they got a trap and drove out to see tho farm. Harding said that Prebblo had offered him £25 per iicre for it, and that ho wanted £2ti tor it. The defendant did not say that Prebble had partly bought the farm. No agreement waa arrived at then. Early in February ho was informed by lus agent in Christchurch that the farm was in Maude and Harman's hands for sale, find that ha could get it for £23 10s. Ho came into town tho next day, and agreed to buy at that price. He did not see Harding that time. The next week ho paid £'200 deposit. It was after that he had heard that Prebblo had bought the farm, and he had not heard Prebblo's name mentioned. Ho considered the land was worth £25 per acre. He did not know Prebblo at all. A week ego he had met Harding, who told him that the case wan going on as usual. Ho asked Harding why he had taken him out to see the farm when it was sold to Prebble, and Harding replied that it was not then sold to Prebble. Harding then seemed to be perfectly sober. To*Mr Stringer: Ho signed the agreement in Maudo nnd Harman's office a tout February 3rd. He understood then that Harding had already signed. Ho had signed on a Saturday, and to tho best of his belief in the forenoon. He cave Mr Maude a promissory noto •for the £200. and within a week afterwards he paid over the money. Within a week or a fortnight of the day when he had paid tho £200 he was informed I that tlio land had been sold to Prebble. Ho had not in the meantime taken posj session of the property, for he had left the whole matter .in the hands of Maude and Harman. Maude .and Harman were to lend him £800 on the property, and he was to find the balance of £400. Last Saturday in town ho had told a man named Lcversedge that he would accept tho £50 offered by Leversedgo to settle tho case. "Arthur Bailey, clerk in Messrs Maude *nd Harman's land department, said that in October last Harding gave him verbal instructions to eel! his farm, i On the morning of February 2nd, Mur--1 ray. McKendry 5 s agent, told him that McKendry would be likely to buy the property if a firm offer were obtained. The next morning he and Murray in--1 spected the farm. He met his brother Jim out at Prebbleton, who told him that he thought the property was sold. He replied that ho did not think that could bo so for he had received authority from Harding tho night before to sell it at £23 10b per acre. His brother l said that he would buy the farm at that price, but ho replied that McKen-

dry was then inspecting it on behalf off anothor purchaser. His brother then said that he would take it if McKendry did not. Ho saw Harding at about six o'clock on tho evening of February 2nd in Murray's stable-. Harding was . then perfectly sober. He told Murray that if ho would give a firm offer he I thought lie would to able to find a purchaser. Harding then camo to tho office and signed tho authority to sell ' at £23 10s. Harding mentioned that ' Prebblo wanted to buy the farm, end said that he did not want to havo nny- ■ thing to do with Prebblo. They did not go to the Zetland Hotel together. On the 4th February McKendry signed 1 tho agreement, and Harding signed 1 later in the day, being perfectly sober | at tho time. Harding said ho was glad ; that McKendry had bought the pro- ' perty, and that Maude and Harman j had sold it. After the agreement was . signed he wrote to Harding, telling ' him that the farm was sold. Harding t did not come in to settlo at the exI>ected time, and a caveat was then ' lodged. Afterwards he heard that the ' land had been sold to Prebble. | To Mr Stringer: As far as ho knew only two caveats had been lodged by j Maude and Harman. , To His Honour: He had read the \ main portion of tho agreement out to ; Harding, and had told him that the firm had received £200 as part pay- - ment, and that the prico was £23 per . acre, and that McKendry wanted to ■ get possession as soon as tho matter was settled. Ho did not tell Harding i that ho had signed an agreement that i if the money was not all paid by March - Ist, ho could not recover interest until he had waited for six months. He ; had been in the Zetland Hotel with » Harding once or twice since the agreoi ment was signed. It was an absolute ■ lie that he took Harding from tho • Zetland Hotel to the office on the night of the 2nd, and got him to 6ign tho ► agreement then. i George Simpson, contractor, stated that on tho afternoon of Saturday, I February 4th, h© was asked to go to t Maude and Harman's office. When he 1 got there Mr Bailey asked him to I witness Mr Harding's signature to an • agreement for tho sale of his farm, and 'ho did so.' Ho observed no signs ot i drink about either Harding or Bailey. John Murray, stable proprietor, gave evidence that on tho day before he ' went out to see the land, Bailey came to tho stables between 6ix and seven, 1 and inquired for Harding, the owner 'of the land. Hording was pointed out, 1 and Bailey went up and spoke to him. 1 Harding, with his brother,""was staying ' at tho hotel, but he had not seen him ' the worse for liquor. . This closed the case for tho plaintiff. Mr Harper stated that ho had ad--1 vised his client to accept a non-suit, i for ho could not hope to prove notice. 1 His Honour non-suited the plaintiff.