LAW REPORTS.

Dominion, Volume 1, Issue 220, 10 June 1908, Page 14

LAW REPORTS.

SUPREME COURT.

CIVIL. SITTINGS, . HTJTT PROPRIETARY TRANSACTIONS. QUESTION OF AGENCY. ' . ' HEARING STILL UNCONCLTJDED. -- Tho hearing of tho action between. John Mot-ley Loigh, of Lower Hutt, settler (plaintiff), and Wm. Thomas Strand, of Lower ' -riutt, settler (defendant)—a claim for £2294, moneys alleged to' have, been. obtained-' by - fraud—was continued yesterday before Mr. • Justice Chapman and' a jury of twelve, of ' . whom Mr. 6. H. Munt. was the foreman. , - Mr. Skerrett, K.C. (with him Mr. Beere), appeared on behalf of ; the plaintiff, and Mr. - Bell, 1£.C..: (with bim Mr. Treadwell),: for. . defendant. - : : > ■ -. " The case for tho plaintiff was that 'he : -.instructed : defendant to purchase for . hini a property at Lower Hutt ; belonging to George' M'llvride, and. an adjoining prosporty belonging to ■ Mesdames Maiison, Bog- : Vgis; :and Eves,- of : Nelson. VAs commission, i (Jefendant was .to receive .25 per . cent, - of '.whatever profit plaintiff might make on a -■ re-sale. . ' In: November, 1908, defendant, it was alleged, represented that he had purchased for, plaintiff the lands at £200 per . acre, whereas, in reality he had himself pur- ;' . chased' them .at a,-lower-_Jjrice, . and -was. -reselling them to plaintiff-.:. At - defendant's request,. plaintiff paid to . Messrs. Stafford, ; 'J'readwell, and Field (solicitors),, the sum of ' £4621, being: the total purchase moneys, which defondant represented to the plain- ' tiff was; payable to the, owners. Of that. . Bum, defendant,-it was alleged,, without the ' authority or; knowledge of : the plaintiff, re-; ceivcd ' and appropriated to his ; own : use £1664. 'Subsequently, defendant received as . commission £630,'t0 which sum ho was not entitled by reason of tlio .alleged fraud. The defenco t-o the actioA was that plaintiff; knew that defendant was the owner of tho lands, arid that he also knew that de-. ' fondant making a profit on tho.re-salo. :I Tho sum of £630 was paid to defendant in i;' respect of a claim, for employment in conflection with the; reading, drainage, and subdivision, of land which originally belonged to plaintiff at Nai Nai, .and was subsequently • purchased from 1 plaintiff, by tho Government for tho purpose-of workmen's homes, also in ' : connection with the lands in. question. : , EVIDENCE BY MR: FREEMAN'. V John : L., Freeman, , now of the firm of -. Messrs. Cliase-Morris and Co., land and.es--1- tato agents, but,, at -the time in;question, ;' managing;clerk for Messrs. Stafford, .Tread-, well, and : :Ficld,' solicitors,, was. further examined. ' ' "

Mr. Bell:' When plaintiff was,settling for the',' properties*' at Lower f/Hutt, why .didn't you mention to him that defendant' was selling to him at an advance P—Witness:. I ' did not think that 1 was called upon, to tell him.'"'' : ''' >' AVhy not? —.Well, defendant.was our'client • and Leigh was, 1 also, in a subsequent transaction, and defendant was selling to plaintiff at an advance AVhy . didn't,; you tell plaintiff that?—No answer.' ; - I mean when . defendant said that he was selliQg to plaintiff by 'a subsequent transact tion?—l do not know. There was no reason. : There was some mistake in; the . computation as to amount due by .'plaintiff, on 'one.'of, the properties. Did you make the "compui'tation?—No, I 'think that tho figures were ■ made up, by one or both of the parties before they' came to the office. : >v •■■■-.• .' At this stage defendant had only an agreement with reference to the property which belonged to the Nelson people?— That , ia So.. -' Is there any ground for tho suggestion that you received money from defendant for: ( helping: him to conceal the true facts from .plaintiff?—Nono whatever. '■ CROSSrEXAMINATION OF WITNESS. . v: AVitness - wasthen.cross-examined ,at: length. :■ v . Mr. ■ Skerrett: You were . acting for' three v parties' ; in connection with two ' series ' 'of transactions? —Yes. Mr. M'llvride, defen..dant, arid plaintiff. .

By whom wero you .first instructed?—By defendant. >. On Behalf of M'llvride?—No. Plaintiff. I did notjreceivednstructionV anybody to act for M'llvride... You :only saw. defendant in connection, with the matter ?—That is all. : ;• For .somb years you .ivero interested .in . businoss ; speculations with '.defendant?— Yes ,! . and others. ; . , : : He- lent you money;' and y°u lent him money?— Yes. vis .it not a fact that you concealed from' ' M'llvride that defendant had sold to plain- , .tiff?-—I .never, concealed anything from .. M'llvride. .■' :'... v "Will you swear that ?—As far. as I know, I never saw M'llvride in connection with the matter. . .. .-' ■ , ' • .. You never saw him?—l don't think I did. He wrote to us several 'times' asking when tho matter would be fixed up. '." , Did lie not call at the office to sign the .: transfer? —I.'don't remember. ' How did it come about that the name "Chapman" appeared • in tho draft of ■ the ■ application to bring. M'llvride's'.larid under - the Land: Transfer Act in plaintiff's name? —I dsn't know. Mr.' Chapman is your . brother-in-law ?— Yes. ' Do you think it if possible you mado a ' mistake .if you drafted the application' your- - self? —It ■ is. possible. •" t - . But in tho highest degree improbable ?— Yes. It must have been a mistake.; You. wero not. having any, business dealings with Chapman.' through Messrs. .'Stafford, . Treadwell,"and Field's office at tho time?— . No. - 1 ' ■

Do you understand hoiv it came about by . mistake?— No. Unless I was at tho time thinking of Chapman. . It is most', unusual/' ' I admit. At the'timo Chapman • was ill at . Christchurch, and I'sent him money. - i Do y.ou suggest that in explanation?— No. The clerk or tlio typistq would not know ■ Chapman and cpuld not have made the mistake?— No. : If you 'didn't make a mistake that name was ' put in for sonio reason?—Yos, ;unless a niisfako woro mado. Can'you givo any reason if it were not by mistake?— No. ' Chapman's name never camo into-the matter. The receipts in connection with the transaction entirely'omit mention of defendant's name. 'Was that an accident? —No, it was not'an accident. ■Y • Supposing a man wanted to conceal from plaintiff that defendant was tho' vendor, would not that be a way to do it?— Well, that construction might bo placed on,it: If a man. wished to do as you suggest lie would, of course, omit defendant's name. . Then again, there is nothing in tho bills-of-costs to show that defendaut was the ven- . dor?— That is so. From tho title alono could plaintiff or his solicitor discover that ' defendant was the vendor ? —No. J And ho would not bo led to make a search unless lie had his suspicions aroused? —No. Did you not consider it , to be your duty under the circumstances as an honourable man, to ascertain whether plaintiff knew I /, that defendant, was making such a large profit?—l did not. , ' Did' you 1 not think that the profit was extraordinary?— No.. . £1600 was a small matter in your mind? —No. I thought it was a good deal. Did you not think it extraordinary that a man should inake' that profit when ho had only a very small amount of his own' money . at stake, also, that in addition, he was to ' get 25 per cent, net profit on a re-sale?— It must be remembered that defendant was' to do all the work of supervision, and all that plaintiff had to do was to find the ;. money. OTHER WITNESSES FOR THE DEFENCE. Evidence for the defenco was also given 1 by Thos. Ward, surveyor; Marion Aldersley, • accountant for Messrs. Strand Bros.; Janet C. Mason, schoolmistress, Roc'.cville; Jas. M. Batliam, registrar-general under' tho Land Transfer' Act;• Robert Orr, solicitors' clerk; Alex. K. S. Mackenzie, solicitor; .Wm. Fra-

ser,"accountant for' Messrs. Stafford and Troadwoll; ,C. ; ,\y. Treadwell, of the firm of Messrs.-Stafford arid Treadwoll, and Catherine M. Strand, wife of tlio dofendant. Bis Honour then dismissed' the jury until 10 o'clock this morning, when tho addresses of counsel' will bo . delivered. ' IN- CHAMBERS. , Sitting in" Chambers yesterday, .Mr. Justice Chapman made an order (on tho application of Mr. Brown) appointing a guardian ad litem in the action Moncrieff v. M'Grogor and others.. • ■■ .. ••

CLAIM FOR COMPENSATION. ■ HEARING POSTPONED. Tho compensation case between Smith and Smith and tho Gity-Corporation, which had been set down for hearing yesterday, but which could not be tr.ken, was mentioned before Mr. Justice Chapman yesterday morning. His Honour said that he did not see what prospect thcro was for the case being heard-in the .immediate future. After the present-case there wore at least seven jury cases on the list.- On Tuesday.next.ho had to leave for Blenheim to' take a sittings there. Mr. 'Justice Denniston, to whom he had telegraphed, 'might'not,;'be, able to como on to Wellington ,beforo tlie sittings of the Court of Appeal. . He (His Honour) had the greatest difficulty in "seeing 'any date upon which he dould hear the case. Upon his return 'from Nelson'he might find a day before or during the sittings of the Court of Appeal. Personally, he. preferred not to break into tho sittings, because if be did it in one instance he might be called upon to do so at any other time. Another compensation caso bad been t set down.for July 4, and lie miglit be able fcv tali tho action in question about -tho same date. Mr. D. M. Findlay, who appeared on behalf of the claimant, mentioned that the case-would probably .occupy one day. A compensation case'which was set down for Saturday next /was expected to conclude on •Monday morning/."Perhaps the case under consideration might' be disposed of on Monday. - ' ■ - ' Mr. O'Sliea, on behalf of the Corporation, stated that .if the case could be got off on Monday, it, would suit his side.' - On behalf- of the - profession, / Mr.- Bell, K.C., suggested' that it was inadvisable to allow compensation cases to disturb the ordinary list. ; '-' , , : His Honour said that it would be much more convenient to . have a break in a compensation case than-in a jury case. So far-as possible, the list of eases for trial by jui y would be | kept intact. In the case of -the' list: of actions to be heard before the Judgo alone there was room for a little more elasticity.- He would set down the action for hearing on Monday, but could not hold out any hope; that it would be taken on that' date.