THE COURTS.

Press, Volume LVI, Issue 16946, 22 September 1920, Page 5

THE COURTS.

SUPREME COURT.

CIVIL SITTINGS. (Before his Honour Mr Justice Sim.) CLAIM i'v>K COMMISSION. Herbert -ttenry Cuai, iiuia Christchurcii jJAr Lpnaru, v.itii hiiu -\ir aim), eaugiu to icca.ei uow. iuxiuiicji liciienzie, lornseciy cf iiuwaKivn, butno.v of iieniiaKirc, Jsay t-iir Ai;-cr3, with Him M r tho sum ot £st>~ IO» ojm mission alligv-d to bo duo in los-out ol plaiQiitfa eervices :n etlv;eui.fe" the t>a;e ol atjteudar.t's property, iaour.t 'W iutnovr, miw beyona iluw-jj den. ' A common jury ot twelve, oi which Mr T. 11, jLifcViuii'ton wad ioicin;.ii, wus empanelled. Xhe plumtifi'i; "ease, as oiithned by Air Kim, wa<s taai dif'-'adant Lought Mount Whitnow some time in June, 1316, a'. a price of about £'3 &s per aero, the area Oeing 676y acics. In .November, IUIG, McKenzie placed tho property in Cook's liauas for ealc as a. going concern, with !2ioo eheep, lor £"31,500n5-tuiid in cash-; the morigauges o:i tho property were, -*'■> of £10,000, and -second of A'iCCO. Cook too.i several prospective purchase;;, to sev> the property. On Junx> '2nd, 1317, he placed it before Anbur Uaiuel lieirnody. wino _ unci spirit merchant, Wellington, v.*ho, in writui;?, eta ted that he would? not i_-o-sider its purchaco unless he • went m without any cash deposit. This was submitted by Cooii to McKenzie, who told Cook: thai- he could bi tug Kennedy down; on July th Kennedy loosed over Mount Wbitnow, ar.d the &:mie evening, at the Clarendon Hotel, Gbristcnurch, McKenzie, Kennedy, and Cook being 1 procent, an agreed-cut was drawn up for the sale and purchase of the property, kut was r.ot signed. In addition to Mount. wiu.uow vnd 3300 sheep, it provided to the E»ie or 5 acres at Ilawarden, for £31,aC0, th'? conditions as to payment including provision far McKenzie taking a second morigago over Kennedy's equities in several hotels, the equities being estimated as worth £"-l,lot. Afterwards, Kennedy sought to uinxe oMtci terms for himself, and there was co us icieruble correspondence by letter av.d telegram la3t-.vcen Kennedy and Cook; tho term* of i tlw> agreement were varied.from lime to time, ! find in one draft it was stated tliat the numI ber of chcop was 3500. Tho deal wci» tiltii in ate! j' completed. Kennedy taking po3ses- ■ =-ion on August 14th, 1917; the ts finally scitt-jd wpon, gav© HcKenzie power to iccreaao his mortgage oil tbe property from £10.C<M> to £16,000, and McKor.zio attcr--,7i?rd3 did increr.io tho mortipi'ie to .•£M,OI». Tho ouestions rasped, counsel eaid, were: WTiethor Coo!: acted wit'.in tho termfl of hn ( | inithority, whether th© sale was earned out, snd whether (aa alleged by the .defence) Coo.; failed to disclosc to his principal (JlcKen?.ic) all the information which was m Ins ]>05sc<?£i02t. and which it vras his, tlv.ty to tlic-clcr». Plaintiff gave evidence oil the lines of cou?.> &el's opening, and stated that tli? Government valuation of Mount \V hitnow v.'as £•30,120. He detailed tho rteps he had taken v> ascertain tinanciG-l position. To Mr AT-pers: Ha v»as not now a licensed Tumi agent; be hud a>bandone*l tbfi business bacuTiM !ie cb&ao to -do so, and not because he had applied for anidi had been refused a. liccnse-; neither he nor h:3 solicitors had approached tho magistrate as to n license. Do you profess not to know that Mr McCarthy, senior magistrate at Chri&tchurch, told you thf,t ivot only would- he not give you a license, but he would not grvo a licensa to any company you formed in which you. or your -.rife had shares? —No. Witness v.-as cross-cxamincd at some length on matters arising out of Mr McCarthy's decision in Cook v. Smith. An authority was produced (typewritten on Cook's business letter paper) from McKenzia to Cook, to raise money on mortgage; the document endedi with tlie "statement that McKenzio would "pay ono per cent, procuration fee." Replying to Mr Alpers, xvitnesa stated that ho wan precent when McKenzie signed the document; if MeKcnsie said that tho portion of tlr? last sentence, referring to the procuration fee, was not in tho document wlien ho sisrncd it. McKcnzie would not )m correct. He (witness) caw .the fulletop (indicated on the document), but he could not see that it had been altered to a comm. His solicitors ot the time wei« "Wilding and Ac!ar.d, bnt they did not act for hint in respect of McKenzie'9 business: witnc-3 did not instruct tho fmn to raise >

money on mortgage for McKentie. Mr Actfaat he slloaW S*t the autho„.,i_ " . -i-cKcnzie to raise monev on mort- ' tu ' I? ordor to send it to Wellington, „ was a better chance of raising —ocey on Kennedy's hotel equities, . , „ r Sin:: McKenzie bore Wilding l and COi . ts in (i e matter of the sal?, and the raisin? of money on mortgage. His company possessed a land agent's license; VJ" 1 eSS ) owned practically all tho shares in toe company. Her.ry Thompson, retired, land a "f_P*' -wmerly in plaintiff's employ, gave c\idenr© a3 to tho initial negotiations with Kennedy. It -,ti= then represer.'ed that vbcro wero !;500 sheep. In a conversation v.' Cr enj > e told Kennedy that he thought that, there worn 3500 sheon on ihf place if it vrere properly mustered. , Thomas, opening for the defence, said tbey admitted that. Cook acted as a<rent, and P-oporty, but did' so on the under<unnding that McKenzie was to receive £5000 m and -j further finn of £BOCO by increasing tho existing from £10.(00 to £]fi,oot); this was afterwards altered by cpromise to raise ISOOO on t'rc equities of Kennedy's hotels. Cook Ir.id not camod out theto undertakings, and 'defendant said that Cool; had net given the consideration nocessary for him to corn his commission. MeKenzie owed for stock, and so forth, to certain firms £SOOO or £00C©, ana he' r" quited that amount to cot- out cf tho Y ' portv. Cook had told McKenzie that Kennedy was the Fletc.hor HumphrcYs, of Wel'iiigton. and would have no difficulty in roi - wc .SIS.fKrO in cosh it -necessary; and law C'or.k told McKenzie not to worry but to tnke over the hotel equities, and he (Cookl •vould get- the inmiev for him. Prom nrs'. to la.=t McKenzie hnd impressed on -Cook the necessity for him receiving a><ont £!f>.oro in cash. Rode:ic?< McKenzie, the defendant, {rave evidence on the lines of counsel'! opening. Wii- ] said that the first ho knew of any rromise to pay Cook a procuration fee was who:' ho saw the document that hod been produce 1 in Court. Witness did not instruct WiWir,; j i'.nd Aclnnd to raise £>00£) or X'nDCn). out "V-'!' present when Cook instructed Mr Acland to j T-ai-se the t.monnt named. Kennedy had nnid i the first instalment of interest about duo date, j hut he had failed to do so in respect oi i succeeding instalments.; in addition Kennedy ! llad failed to find the money for one- of the ! mortgages which ho (McKenzie) had found, I and ho lost £28S owing to Cook's incorrect j figures relating to the sheep on the station. "ultimately he had to mako «n exchange with I Kennedy, which reduced the price of Mount | Whilnow by £1712. It would have been «h- ---; F.urd on his part to sell Mount Whituov.without providing' for eovao of the purchsisc money being- paid in cash. To Mr Sim: At the lime the -negotiations were going on witness was suffering from neuTitis, and was not able to manage a- backcountry station like Alouiit Whitnow. In all ho (witness) received £6COO in cysh; in addition Kennedy executed a mortgago for £'17,500 in substitution of the mortgage for £14,C00. He had taken r.o 'lesal etcpe to enforce his agreement with Kennedy, <&nd had taken Kennedy's word that his (Kennedy's) financial position was critical. He thought that Cook had tried to raiso money on the liotol equities, but failed. When the sheep were mustered at time, Kennedy eaid that there were 7<X) short; afterwerde the shortage was shown to bo 300. John Thorn, laud salesman, stated that ho was in Cook's employ when tho McKenzieKennedy deal went through, and was in touch with the parties. McKenzie. was always veTy doSnite in making it a condition that he must have £11,000 o r £12,000. Cook told' McKenzie that there would be no difficulty in raising money on Kennedy's hotel equities; to witness, privately, at the sujiio time, Cook said that there was very little chanco of raising money an them. Witness did r.ot believe that McKenzie would have given up possession. untcs? he thought that the money had been found. Cook was doing his best to get Kennedy into possession, caying that he would try and find the monoy after he got possession. To Mr Sim; He was in Cook's employ between nine and ten years, end left eleven ov twelve months n?o; he had left because lie found that the firm had a bad name in the country, and it was hardly possible to do business. The last time ho spoke to Cook hc> scowled at him like a dog, he had not 6pokon to him since. At tho time tho Mc-Kenzio-Kennedy deal was on he (witness} did not know much about- land deals. It was not true that he was disaiisfed by Cook. To Mr Thomas: If it suited he (witness) would be a land salesman: if it did not euit he would not be a land palcsinan. Counsel addressed the jury. Tho Court adjourned till 9.30 a.m. to-day, when his Honour will eum up. PRISONERS FOtt SENTENCE. ,

it 10 a.m. oil' Saturday the following prisoners' -will be brought up for sentence 'before his Honour Mr Justice Sim:— . Alma, Quintal, theft; Edward Edgar Tigcra, theft, assault and robbery, and assault with intent to commit a crime. '• ■ ■ ' ftobflrt rbcll, forpery (three charges). David Murray Dick=on, the!t (three charges). Arthur Mortimer Thatcher, false pretenci-s. Charles iluncey, theft from the person.