SUPREME COURT.

Dominion, Volume 1, Issue 216, 5 June 1908, Page 2

SUPREME COURT.

CIVIL SITTINGS. PROPERTY TRANSACTIONS. ALLEGATIONS OF FRAUD. CLAIM FOE £2291. The Civil Sittings of tlio Supremo Court wore resumed yesterday, before Mr. Justice Uuipman, when the ease between John Motley Leigh, of Lower Hutt, settlor (plaintilt), arid Win. ihomas Strand, of Lower Hutt timber merchant (defendant)-a claim for iJJSH—was commenced.. Mr. Skerrett, K.C. (with him .Mr. Beore) behalf of the plaintiff, and Mr. Bell, Iv.C. (with him Mr. Trcadwell) for dotendant. r The following jury were empanelled :-U. 11. Munt (foreman), W. E. Clerk, Albert E. Perry F. AV. Mills, Geo. Bowles, 11. X Coster David laylor, Ernest E. Ilesten, Frank Bell, Arthur Greening, Thos. Snencor, and Urn. Fisher. • STATEMENT OF CLAIM.

The statement of claim set forth that, in October, 1903, plaintiff instructed defendant as Ins ftgent to purchase from-one, M'llvride, ,a property containing nine acres, beins part ooction Jo, Hutt, and from Mary Ann Mauson, Sarah Boggis, and Caroline Eves 13 acres 1 rood 5 perches, being another part or tho same section. The price 'was to On ■it Slini which tho owners would soil, but not exceeding £200 per acre, and plaintiff agreed to pay to tlio defendant for "} s . services 25 per . cent, of whatever profit plaintiff might make oil'a re-sale of the lands. In November, 1903, defendant, it-was alleged, fraudulently represented to plaintiff that he had purchased for him tho lands in question for £200 per acre, whereas in reality defendant had himself purchased the land owned by M'llvride for £1250, and that owned bv Hanson, Boggis, and Eves for £1710. "At defendant's request plaintiff, on November 6, 1903, paid to Messrs. Stafford, Troadwell, and Field, solicitors, the sum of £4624, being tho total purchase money which defendant represented to the plaintiff as payable to tho owners of tlio land. Of that'sum of £4624, it was alleged that defendant, with-out-the authority or knowledge of the plaintiff, received and appropriated to his own use the sum of £1684. On May 30, 1904, plaintiff paid _to the defendant for his. services tho sum of £630, which sum defendant was not entitled to by reason of tho alleged fraud. Wherefore plaintiff claimed payment from tho defendant of £2294. DEFENCE TO THE ACTION.

Tho. statement of defenco set forth that plaintiff very well knew that defendant was the owner of the lands ,in question. In September, 1303, plaintiff, who was aware of the fact that defendant was negotiating for tho purchase of the properties from the former owners, offered to buy the same from defendant- at £200 per acre. The payment of £G3O by plaintiff to defendant was liot mado in tho circumstances alleged. The .facts were that plaintiff was the owner (f a property at Nai Nai. About the time of the purchase it was arranged that defendant should undertake the reading and formation of streets, and the drainage of tho property, also the subdivision and sale thereof, it was also arranged that defendant should undertake the same duties on behalf of the plaintiff with reference to the other lands at Lower Hutt, ;and in addition/ thereto to pay engineering and .other expenses. On May 30, 1904, plaintiff paid to defendant the. sum of £630 in full satisfaction of rJI claims by him in respect of such employment. "A DIFFICULT .CASE." -. Mr. Skerrett-, in opening the case, said that it was one of considerable importance because of the large amount involved, and one of great difficulty because of a remarkable contradiction of testimony. If anybody employed a person to purchase .a property, the. agent could not, buy for a small sum aiid sell for a larger , amount-,, concealing the fact that he was making a profit. The whole point in the present case was whethei plaintiff employed defendant as his agent to acquire certain properties, or whether throughout the whole of the transactions plaintiff was. not relying and trusting almost entirely to tho good faith and honesty of defendant. '

EVIDENCE OF PLAINTIFF. • /Plaintiff, in evidence, stated that, in February, 1903, lie >vas a sheep farmer at Palmerston'North. In the month in question, Mr. C. A. Baker' (of Messrs. Bakn>' Bros.) drow Ilis attention to a property it Nai Nai. Ultimately plaintiff .and defendant DUrchased the pronerty, plaintiff acquiring two-thirds andxdefendant one-tliinl. A few months later, plaintiff, at. the ursjent request of defendant, agreed to take over his-, share of tho property also. Either in September or. October defendant informed him Uiat he knew of a splendid "spec." .at Lower Hutt—a property which was worth £300 per acre, and which could bo secured for £200 per acre. Defendant told plaintiff that all ho would want in the way of commission was 25 per cent, of the net profit on a re-sale of the land after the deduction of 'interest, legal charges, cost of surveying, etc. Ho further stated that in connection with tljio transaction lie would not got any commission from the vendor: or any agent. Afterwards defendant mentioned that an adjoining block, which it was desirable to purchase, might also be acquired at the same rate.. It was agreed that defendant should proceed to Nelson (where tho owners of the last-mentioned property resided) and try and arrange terms, and that if this property wero purchased .defendant should receive the same commission as had been decided npon ( iii connection with the other property. Eventually, plaintiff agreed to acquire the properties, and to allow Messrs. Stafford, Trcadwell, and Field .to prepare tho necessary documents. At tho office of' that firm he subsequently wrote out two cheques for the amounts of tho > purchase money. Plaintiff was never tokf that defendant was the vendor of tho properties, or that defendant was making a profit as a result of the sales. In May, 1904, defendant informed plaintiff that some persons had i agreed to purchase the • properties on condition that lie (defendant) went in with them, but ho would be unable to do so without assistance to the extent of £750 in cash. Ultimately, for the sake of getting rid of the land, plaintiff gave him £G3O, which was £150 more than ho was entitled to as commission on the re-sale. In February, | 1908, plaintiff became aware of tho fact that defendant was the owner of the properties at tho timo ho (plaintiff) purchased them. INTERESTING CROSS-EXAMINATION.

Cross-examined, plaintiff stated that he sold tlio Nai Nai property, which ho purchased in 1903 for £10,000, to . the Government for £21,000 in 1905. He did not pay £630 to defendant in order to get rid of him and negotiate with the Government, and ho didn't tell defendant that he thought he could malco an enormous.profit out of the land. For his services in connection with the disposal of the Nai Nai property to tlio Government, Mr. T. Kennedy Macdonald received from plaintiff £536 16s. as commission. He (plaintiff) had suffered a nervous breakdown, which lie attributed to the Nai Nai transactions. ■ At times ho had been treated by a metaphysician. Mr. Bell: I confess I don't know what that means. His Honour: There is a well-known person hero who treats people for nervous diseases, and styles himself a metaphysician. I have seen the notices at his place. Mr. Bell: Have you given yourself up wholly to tlio caro of the metaphysician in rccent years?— Witness: Yes. \ Have vou derived benefit from the treatment?—l think that I have. You sometimes suffer from depression ?■- Yos. And at thoso times everything seems blackto youP—Oh, no; I am not naturally pessimistic. Then what happens to you?—l might have s headache or some other aohe t

Have you been treated recently?— Yea. j'or what?—A toning-up. ? J brought about by r.-.cans o'- a tonici—No; it is done externally by motions of the hands. A u A c °roinunication with the spiritual world?—Oh, 'no. ' las ' benefited you physically?— Yes. And still more mentally?—l never needed treatment I mean when you wero depressed?— Yes. ;iml v, hen I was bilious as well. lhou this waving of the hands seems to bo a universal specific?— That is so. - hi answer to further questions, plaintiff stated that, leaving out of consideration the tbdO which ho had paid over to defendant, he had made £100 per acre on tho Hutt property of twenty-two acres seven months from the date oii which' he had pu'renasod it. lie thought tho profit was due scielv ' . , 0 l J3? r .';? So , m values of property in and ' about Wellington, as vrell as everywhere elso in the Dominion. ADDITIONAL TESTIMONY. Alexander Barron, head of the, Land Pur- • .chase Department, ' gave formal "evidence with referenco to _tho purchase by ;he Government of plaintiff's property at Nai Nai. The area had, lie stated, been acquired in order that .workmen's homos V might- be erectcd upon it. So far, it had been used only for grazing purposes. Caroline Eves, widow, of Nelson, one of threo sisters who owned part - of the pro. pcrty at the Hutt'purchased by plaintiff) tiien gave evidence. In tho course of -tho negotiations defendant told her that the', price would bo £1500. She agreed to sell r 'nr. ln^ 111 le ' aiu ' to defendant for £aOO. Defendant told her that he was, buying the property for a home for himself. Geo. M'lvridc, coachbuilder, Hutt, owner •* of tho other portion of tho property at the Hutt purchased by plaintiff, was next called. Ho had never heard of plaintiff's name, in connection with the transaction until a few months ago. . Martin John Kilgour, Assistant District Land Registrar, deposed that under tho .circumstances,it was exceptional for Messrs. .' Stafford! Treadwoll, and Field to.have applied for a substituted certificate of title in respect of tho land' in question. At _\this_ stage the Court adjourned until ton o clocK tnis moimng.