DISPUTED CLAIM

Evening Star, Issue 21786, 31 July 1934, Page 10

DISPUTED CLAIM

. AMOUNT UNDER BILL Of SALE PLAINTIFFS SECURE JUDGMENT The Magistrate’s. Court occupied this morning with the hearing of a claim by Frederick George Duncan and Euphemia M‘Farlane Divers, as trustees of the estate of the late Henry Divers, financial agent, against Henry Priestley Heaps (Lower Portobello) for £94 3s 4d, being the amount secured by bill of sale over stock and chattels, given by defendant to the late Henry Divers on December 3, 1932. Mr A. G. Neill appeared for plaintiffs, and Mr O. M. Barnett for the defendant. Mr Neill said that about June or July, 1931, Mr Divers seized -cattle secured to him by bill of sale from a man named Guilford. These cattle had originally been bought, by Divers from a man called Hickey, and- evidently formed part of the consideration given to Guilford from him. They were seized by Mr Divers under bill of sale, dated November 22, 1930. On October 14, 1931, defendant executed a bill ot sale to Mr Divers, securing the sum ot £67 over chattels, including furniture and seven cows. These latter were referred to* as pasturing on the defendant’s property at Wingatui, and were cows bought by Mr Divers from iWright, Stephenson, and Co. Ltd. on account of Heaps. These cattle formed part of the consideration given for the. .bill of sale. The defendant fell in arrears with his repayments, and after interviewing Mr Divers at the Stafford Hospital called at his office and there executed a bill of sale dated December 3 1932. This bill was given over the chattels included by the bill _of sale previously given by him, and included in addition certain cows, of which at least four were the cows originally bought by Divers from Hickey and subsequently seized from Guilford. ... The arrears under the previous bill-of sale were at this time £32. Mr Divers died im February 3, 1933, and defendant fell badly in arrears with the . instalments due and was finally written to by the trustees of the late Mr Divers demanding payment. On February 5, ■1934, he replied offering a cash settlement of £SO. Later he again wrote asking for full particulars of the security and the amount due. /The trustees offered to accept a cash payment of £7O in- full settlement. On February 12 last the defendant replied withdrawing his previous offer of £SO. ,

. Mr Neill said that in March the trustees received a letter from Mr Barnett intimating that the defendant .was making a claim against the estate for grazing in respect of cows seized from Guilford on March 20. In June Mr Barnett was written to, and he replied that the ownership of the cattle seized from Guilford had not passed to Heaps, and reiterated the previous demand for payment of the amount allegedly due for grazing, and claiming that at the time Heaps signed the bill of sale he was unaware of its nature, and that it was not until he ,was pressed for payment that he interested himself to inquire what was the nature of the documents he had Signed. Mr Neill said that there was no evidence that defendant was in any way deceived as to the nature of the document. Defendant’s letter of February 5 last offered a £SO settlement when the sum due under the old security was only £32.. Defendant made no claim for grazing against Mr Divers or against the trustees until pressed for payment and until after he had written offering £SO in settlement. Evidence was called in support of the plaintiffs’ claim, and for the defence Mr Barnett said that defendant contended that there was no evidence . of any sale at the time of the second instrument. At the time the sum of £32 was owing in cash by him._ Six months previous to the execution of the second bill of sale Mr Divers had approached defendant and requested him to winter eight head of cattle he had heized from Guilford. Heaps and his son took delivery of the cattle on Divers’s, behalf, and in the meantime, on the instruction of Mr Divers,'a steer was sold for 18s and a cow for 10s, leaving only sis cows in Heaps’s possession in December, 1932. Heaps was friendly with Divers, and was askedto call and arrange matters, but nothing definite was arranged at the hospital interviews. There were only six head of cattle, worth at the most £2 per head, but defendant found that a bill of sale was taken for the sum of £7O. The defendant gave evidence, and the Magistrate said that defendant wished the court to believe that he did not understand what the bill of sale was, and that he thought what he was signing was some acknowledgment in regard to Guilford’s cattle referred- to. .Divei's, who was the principal in the transaction, was now dead, but fortunately there was any amount of correspondence before the court which was directly opposed to dhe assertions defendant now made. It should be noted that the document was not signed,'but that two pages were initialled by defendant, and it was exactly the same kind of document he had signed a year or two before in connection with the first bill of sale. They also had it that an offer was made by defendant on February 5 to settle the whole matter for £SO. There was no suggestion up to then of any claim for grazing. Judgment was given for plaintiff for £94 3s 4d, with court costs (£2 13s), solicitor’s fee (£5 Is 4d),. and witnesses’ expenses (7s).