A PROPERTY TRANSACTION.

Dominion, Volume 1, Issue 267, 4 August 1908, Page 9

A PROPERTY TRANSACTION.

SEQUEL TO A S^VINDf/E, ; CLAIM FOR RETURN OF MONEYS. T.ha o'gsa. between James Jqlin Allies, accpnntant af tlie Oity Council pflipes , (plain-, tld'),- P!)4 -Js)!»,(ilifitll Mjjsoin, face "specialist (dpfsndgnt), was :t»l?op L'pforo Mr, 1 Justice P!tfpma» y'estpnlay,. PJaijitiff, .by his .statpnipht. pf. claimi set fqrt'h tJmt'.by pn. agrgomont dated' Fehruary 14, ipoß, e'sprpssed to'bp Piado-between Eli liptt ancl of the one, part and plain-,, tiff.' pf:t))o' et.hgr' par'ti' Ejlipt't and Duneaii, as agents fori and • siibjec-i" tp the approval of. tlm defendant,; agregd to sell to plaintiff a hpusp gild land in Hawker street for £POQ, thereof. £•}()() was to ;•)).? paid iu cash and tho balansp jrag represented by an existing njortgagp, !Qn Feh'ruiiry 15 defendant ap, proved pf , the sajo and acoepted a deposit of #370 pai'd'.to her liy-p]aiutiff. It was agreed by thq plaintiff "with the defendant's agents, Ell.iptt and • Duncan, that the bal-, ajicp of the' £§0, should be. retained •W>'thero. • 'Defendant- had since repudiated tf)e agfeeifjjpt fpr sale and refused to pei'r fqr'm the pontraot, As : an alternative pausp of f flptipn ( plaintiff snjd further that dant was in possession of die siui) pf £370, recpivpd ;by the dofsndant on. Fobrnary 15, l§()8, fpr tiip.uso of tho uJaiutijf, whipfi plaintiff, has demanded frbm tliq defendant and dor. fqndaitt had wrongfully refused to pay, Whprefpre''plaihtifr cJamied (1) thp repajv ment.vof-£370,- being l thp amount -paid by plainti/f. tg and interest at thq rato .pf' 8 and cq&tß, m, 1 The statement of defence set forth that no contract for tho sale by defendant to the plaintiff was niado, -rtnr any nionpys paid in respect of" the ■a!!eged''pu'rchaso. received eithpr .fi j; defendant' or any aiitiiprised 'ageiit or agents. ', If any contract;wpro entered into ' it "ivas niadq withqut her jknqwledgo or aiitliprity :. ; ~... . .Mr,.'Johnston (witii ]ilm Mr. Rothenhurg) Appeared on'behalf'.qf. flie plaintiff, and Mr. Gray'.for the dofpiidant.

CASE FOft TIIE PLAINTIFF, Sir, '. Johnston,: in opining ' tho caso-for plaintiff,' said that Instead pf . suing for specific penormiuipd plaintiff had brought • an, actipu; tp. recpyar tho,moneys paid .by liim' undar alleged contrnot, • Tljo. q'nostion ■was whether,, Qwjng. to tho fraud of Elliott,: plaintiff was to Ipso (lis money, or .defendant hers. , .Counsel proceeded to pall -evidence. " Plaintiff' stated, in evidence, that"Ejliptt called upon liim with' reference to tlip property, .which he, described as a splendid, in?, 'yestmpnt,, V Elliott told hiliv that- tho : property.;;.was, in-) his hands ;,for': sale,; After inspecting thoproperty, plaintiff agreed to: purchase'it, and liandod Elliott a cheque for £370, payable to dofendant or order, Elliott, did. not seem to like tlio way plaintiff's dieque .was made" out, Subsequently plaintiff; gavo Elliott instructions-, to re-sol) tho; •property for: £10Qp. lii tlio event of a rejftlo, Elliott was to have renoivod'6o por cant; of:tlio profit,-: Plaintiff.did npt-soo Elliott' again. • During the course pf an' intervipw, later, defendant said to plaintiff: "Ai-o you the Jfr, Ames who bought tlio Hawker Stroet' property p. What did you pay for it?" Plaintiff- ropjiod': ''£900;" ' Defendant then remarked! "Ho;told .'me £950, Tlion ; it'was your cheque for £370 that I endorsed." Subsoqupntly; defendant ■ said that at-'first she refused to endorse the cheque, but Elliott persuaded her to do so, saying that plaintiff was outsido-. woiting to. Sco -.her .-signature so that lie ' could sqo, tho' bargain was clinched. . Furtlio'.', : sho stated that >he had lost £3900; in fact'all her money, through Elliott, wild usuolly camo to seo her on a busy morning when lib wanted ,any thing - dono like that. Her solicitor had, sho continued, told her that sho was very foolish to ondorso tho' choquo, On ono occasion,Elliott; had, slip said, called upon bor for £1000, and her brothor had also lost money through'. Elliott. She; said that sho knew Elliott's family well, and "-would trust him with anything. His solicitor had since ascertained that tho mortgago on tlio property* was only £450.

Cross-examined, plaintiff stated that he had told Elliott that ho was on tho look out for a house - to buy. • : Richard E. Rawnsloy, secretary to the Wellington Trust, Loan, and' Investment Co., Ltd.,-stated that thp company was tho mortgagee of tho. property, and that the amount bf.'the mortgage was £450. Defendant men. tioned. to hiin that tho property had been sold, but she did not. soom to bo clour an to the amount of tho purchase monof. She had, she. said, asked pfliott to get £050 for tho property. ; : . ~ . Samuol Tansley, chief clerk in tho office of tho Official Assignee at l Wellington, pro-, ducod proof of debt put in by defendant in connection with tlio c6tato of Elliott. , TO THE ACTION.. '. Mr. Gray, in opening the'case for tho defendant, said it largoly turned upon;tho endorsement of tho cheque. Through hor own exertions defendant hq.d acquired a considerablo amount of money, and' from timo to time sho invested larßo sums through Elliott.' On this ocoasion Elliott ceased : to-be her agent, when he became engaged in swindling hor and his conversion to his own use of the proceeds of tho; chcquo (whioh sho did not intend to make negotiable) did ; not make hor liable to plaintiff. • ~'■■■ .. ; Dofcndajit, iii" evideuco, stated that she first became acquainted with Elliott about four years ago. . Ho had carried out a large u'umbpr of transactions for hor. At tho close of last yoar Elliott told her that-sho ought not to havo purchased tho property in quostion. ' She said that sho would'consider any .offer of £950 for it. :Whon Elliott brought along tho cheque for £370 she was vory busy, but Elliott said that ho would not keep hor a minuto/ Ho asked her to endorse the cheque which ho said would bq met on tho 28th of' that month. Sho said that if 'sho ondorscd.it anyono could get it cashed. Elliott said:—"Tho buyer is a personal friend of mine. I havo promised, that it will remain in tho bank until tho 28th." Sho. hesitated, and Elliott said: "Tho buyer is waiting down below for me. He wants to seo your signature, .so that ho may know the bargain is elinchod." Upon defendant, still hesitating, Elliott, who bocamo very angry, then remarked: "Now I havo sold tho house; well, you won't do as I ask ,vou. I-lavo you had any-reason at all to doubt nip-in any-way in connection with past transactions? If you don't sign tlio ohequo thero is nothing to prevent tho man from seeing another property which lie might,like hotter, and then tho bargain will bo off, and all my.timo will bo-wasted, and everything else." Sho Baid: "Arc you suro tho cheque is to bo-in tho bank?" ..At tho time sho had not the slightest idea who the buyer was. Elliott replied: "Tlifiro will, bo no money at tho bank until tho 28th, and 1 would not • havo my friend's cheque dishonoured for anything."- Sho did not know

t|mt the oheque had been cashed until plaintiff called to poo her. No money in cpinioclr'i with the purchase of the properly -nnjipd her. At tlio Court adjourned until 10. BO ..orniitg.