ALLEGED BREACH OF AN AGREEMENT. A COURT CASE.

Evening Post, Volume LXXV, Issue 40, 17 February 1908, Page 8

ALLEGED BREACH OF AN AGREEMENT. A COURT CASE.

What counsel described as a conflict between the municipal bylaws of Palmerston North and the Public Works Act was tho lenl basis of a, dispute heard in the Supreme Court before Air. Justice Chapman to-day. Hoberfc Henry Fisher sued Thomas B. Dwun and Lamartine Dwan for £161 18s 8d damages for alleged bleach of agreement. Ths defendant preferred a counterclaim of £60, return of the. deposit on the transaction on the ground of misrepresentation by the plaintiff. Mr. Myers, appeared for tho plaintiff, Mr. Young for the defendant. The real point of the dispute, said Mr. Myers in opening th 6 case for the plaintiff, lay in the counter-claim rather than in the. claim/ An agreement had been drawn -up between the plaintiff and the defendants, \\hereby a propeity belonging to the former in, Palmerston and comprising an area, of' about nine acres was sold tto tho latter for £1500 on terms. The purpose of tho defendant in making the purchase was speculative, as he intended' to subdivide the land for building lots. The defendant himself drafted tho agreement, which was signed by the plaintiff. A part payment of £150 had become due according to the agreement, but the defendant had refused to pay. Interest on the part payment and on a mortgage on the property with rates' payable brought the amount of the claim up to £161 18s Bd. The defence set up was that there had been misrepresentation on the part of ths plaintiff in the sale ' of the property. The defendant and ,his brother,, L. Dwan, found that, when they took possession of the land, they could hot cut it up into sections in the particular way required on account of the Palmerston North Borough bylaws. Mr. Myers submitted that this bylaw, which provided that no private street should be constructed in Palmerston North unless it had both ends opening into public or private streets, or roads, was invalid, as conflicting with the geneial law of the Public Works Act. His Honour : Ifc would be an awkward thing to decide on the validity of a bylaw in the absence of the parties. Mr. Myers contended that theic had been no misrepiesentation on fact. His client had been unuw.ue of the bylaw affecting street constructions. He was still prepared to cany out the contract. Robert Henry Fisher, ' commercial traveller, the plaintiff in the case, gave ovidence.as to th» circumstances ielating to .the agreement. In crost.-ex-amination lie denied ever hearing of the bylaw in question. The amount paid by him for the land was £95,0 approximately. He had never assured Mr. Dwan that all the mortgage could be paid off immediately. Mr. Young, in opening the case for rhe defence, contended that Mr. Fibher hud purposed to cut up the property at the time when he bought it, but found it impossible to subdivide, and therefore took the first opportunity ot disposing of it to Mr. Dw.tn. Such* misrepresentation as was alleged to have taken place in the negotiations picceding the sale w.ei sunicient to nullify the contiact. ThomiiLi Beaumont Dwan gave evidence of his business relations with the plaintiff, "who had urged him to speculate in the land at Palmerston North. Tho plaintiff had specially mentioned tho possibility of roading. All the information given by plaintiff, the witness had taken down in a pocket book (which was produced). (Left sitting.)

At 2 o'clock to-morrow Messrs. W li. Morruli iinil Co. will -ell by public auction in then iooiiif, Willis st rod; liou«o liolcl funiiturr and efTi-ct*, ;ind on Wr-0 npsday nt 1.30 o'clock the b.tlanci' of tho slock of grociei-iee uud ciuuU&ry will L?