SALE OF BRICK WORKS

Evening Post, Volume CXII, Issue 3, 3 July 1931, Page 9

SALE OF BRICK WORKS

MOTION FOR JUDGMENT

CONTRACT NOT COM- • PLETED

Legal, argument was- heard in -the Court of Appeal to-day' on a. motion for judgment in an action-for specific performance and damages in connection with the sale and purchase o.f a brick works, removed from the Supremo Court by Mr. Justice M'Gregor. -Tlio parties were the "Wellington Brick Co., Ltd., and Francis Herman Jansen, plumber, of Wellington. Originally when the-case was before the Supreme Court Frederick Ernest Bognuda, company manager, of "Wellington, and "William Patrick Coles, solicitor, of Petone, as executors of the will of the . late Antonio Bognuda, were joined with Jansen as: defendants. •. Mr. H. J. V. James appeared'for the Brick Company, and Mr. M. F. Luekie for Jansen. ' ' '.'.' Dealing with the facts of the case, Mr. James said that the action arose in respect of an agreement for sale and purchase, by which the; Wellington Brick Co., Ltd,, contracted to sell to Jansen its brick works at- Johnsbiiville, consisting of some 21 acres of land, with the buildings and machinery thereon, for £12,500. A deposit of £500 was to be paid, and this, in fact, was paid, but .the balance of the purchase price was not paid. . .. ■ . When the case came on for hearing in the Supreme Court on 29th May iast, Mr. James elected to be non-suited as to Bognuda and Coles, t and then moved for judgment against ■ Jansen, stating that ho abandoned the plaintiff's plaint of specific performance nud asked for judgment for damages as at common law. In his judgment Mr. Justice MacGregor stated that he doubted whether he had the power to award damages as at common law, s claimed, but his Honour offered to give judgment for specific performance against Jansen. - Mr. James finally declined to accept this, and insisted on his fight to judgment on his alternative elaim for damages as at common law in' terms of the amended statement of claim.- His Honour adjourned the motion for' further consideration, after which Ms Honour said he still remained doubtful whether in the circumstances judgment for damages as at common law could lawfully be entered against jansan whether with or without any amendment to the pleadings; and made an order moving the motion for judgment into'the Court of/Appeal. - •: Mr. Luekie said that as. he understood the meaning of; the term the action taken by Jansen did not amount to repudiation of the contract; merely inability to .pay, had been pleaded. Difficulty was experienced by Jansen in his efforts to obtain capital to form a company, and'he applied to the Brick, Company, for further time in which to make his .payments, but the plaintiff declined to meet this request. . . The .Court decided, unanimously that the plaintiff was entitled ,to damages at common law, and that the proper, course'was to remit the case. to. the Supreme. Court to enable an assessment of damages to be made. The. Chief Justice (Sir Michael Myers) said that if it was necessary to express' the Court's views on the question of the principle upon which damages should be' asssessed that would be done in writing later. Mr. James said ho did not anticipate that any question would arise in that connection. ■ ■'-■ .'■ ■" - ■■■■' ]■ ■ ■ .-V,: "'■'; The plaintiff was allowed 15 guineas; 'costs: and disbursements!- ■■ ■' - } ■■ '■ ",