BOUGHT IN.

Evening Post, Volume LXXVII, Issue LXXVII, 10 June 1909, Page 7

BOUGHT IN.

AN ISLAND BAY PROPERTY TRANSACTION. j THE PAYMENT OF INSTALMENTS. Some transactions over a section at Island Bay were the subject of an action heard by Mr. Justice Sim to-day. The parties were Samuel Geoige Bray, plaintiff, and Lena Kuch, defendant. Tho claim was for specific performance of an agreement between the parties, or in default £250 damages. Mr. 0. Beere appeared for the plain- j tiff, Mr. D. M. l'indlay for the defend- j ant. The case, as detailed by counsel for the plaintiff, was that Bray, a carter 'by trade, agreed with the defendant to purchase, in 1905, a piece of land at Island | Bay, on which was erected a stable, converted into a three-roomed dwellinghouse. The price wae £500, Bray paid j about £60 before the defendant sought , a proper legal agreement. This was made, with a provision for £300 to be ] paid in 1911, and £5173 in equal month j ly payments. There was also interest on the £300, payable quarterly, and interest on £173, payable half-yearly. These payments v/ere compounded for monthly instalments of £5 7s 4d. Tlie plaintiff paid the«e monthly instalments until December last, when Kuch wanted to raise another moitgage over the property, and the plaintiff refused. When the plaintiff went round to Kuch's shop with the next instalment, ho was refused acceptance. The defendant's solicitor also refused acceptance of instalments, and demanded the whole balance of purchase money due. Finally, in Maj', Bray offered the arrears of instalments. A sale of the property took place on the sth May, and tho defendant bought in The contentions for the defence were : (1) At the time the defendant first refused payment, the plaintiff was not in default for the specified thirty days under the agreement ; (2) if the pfaintifr 1 was in default for more than thirty days, the defendant was bound to accept payment of the moneys tendered, -because i the agreement did not entitle him to 1 call up the balance of the purchase money ; (3) that the plaintiff having made one tender, and that tender having been ref-.-cd, and the defendant's solicitor ' tying stated definitely he would not accept payment, but required fuli payment of the purchase money, the plaintiff was relieved from any necessity of further tendering ; (4) that the amount tendered on the sth May, being sufficient to pay all arrears, the defendant had no right to proceed with the sale ; (5) that the sale was in an> case illegal, because the agreement provided that the sale should be conducted in the same manner as sales by mortgagees ; (6) the rescission of the contract by the sale was illegal. Samuel Bray, plaintiff in the action, gave evidence on the lines of his counsel's statement of the case. The money paid before the agreement was £60 2s, the price of the property, £500, being increased subsequently, under the agreement, by £33. He had spent about £60 on improvements. The agree- , ment was made at Mr. Kuch's request. i The witness made his monthly payment at Mr. Kuch's shop without demand. In December Mr. Kuch refused to accept the monthly instalment. The witness had previously refused to agree to a mortgage Mr. Kuch desired to raise on j the place. Mr. Kuch directed the witiiess to his solicitor. Mr. Bennett refused to accept the instalments, and said he wanted the whole amount of the purchase money. The witness then consulted his solicitors. He tried to raise the money from various solicitors, and had to pay for valuation costs. He did not. succeed in raising the money. Mr. Kuch sent out a man to ask him to look at another section at Island Bay. The witness refused, to take it. A second man came from Mr. Kuch and told him that Mr. Kuch was very anxious for him to take that section. If he did not take it, he "would be put out of his present section, as there was a considerable amount of money owing. The witness only heard of the sale two or three days ] before it. He paid off £30 and offered to pay oft the instalments, but this was refused. He was at the auction sale, when Mr. Kuch bought in the property for £200. To Mr. Findlay : Mr. Kuch was agreeable to paying by instalments. By figuring up the instalments the witness found he had been paying too much all the time. On the 21st December two instalments were owing. Lambert came out nearly every day and was a perfect miisance. The witness did not offer Lambert or Skeliey any money. He did not offer Mr. Kuch any money until the day of the sale. He was £30 in arrear on the Ist April. Alfred Augustus Bennett, solicitor, practising in Wellington, stated that he had been instructed by Mr. Kuch on the 7th January that the plaintiff owed instalments of purchase money on the N property. The witness, under instructions, gave Bray to believe that he had to pay the whole balance of the purchase money. He never at any time refused instalments from Bray or his representative. Harold Charles Hale, law clerk in the office of Bnnny. Petherick, and Ayson, solicitors, stated that Mr. Bennett, when seen by the witness over Bray's affair, had refused to accept an instalment. Eawdon St. J. Beere, solicitor, said he had offered instalments to the defendant's solicitor and had been refused. Full arrears were offered. Mr. Beere pointed out that £5 7s 4d at the commencement might be a proper I instalment, but with the reduction of principal, the amount of the instalments of interest would be reduced similarly. The witness said the amount due was about £24 on a proper calculation, but he tendered £33 to prevent the sale. They refused to accept, and the sale j proceeded. Hannah Norah Mary .^ray, wife of [ the plaintiff, also gave evidence as to ! the defendant telling her he wanted to ! borrow £300 on the section and adjoin- I j ing section. The witness said he should not, as there were already two mort- ! gages over it. j At this stage the court adjotirned till the afternoon.

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