SUPREME COURT.

Gisborne Times, Volume XXII, Issue 1749, 15 May 1906, Page 3

SUPREME COURT.

CIVIL SITTINGS,

(Boforo His Honor Mr Justice I, Chapman.) ' At the Supremo Court yestorday the oaso of Henry Hill versus Kate Wilson was heard. Mr Lusk, infracted by Mr Stock, appeared for plaintiff, and Mr Nolen for defendant. . Mr Lusk stated that the claim wbs for speoifio performance of a contract for sale of land at Whataupoko. Iu Juno, 1905, defendant and hor husband mortgaged to tho Beoretary of the Gisborne Building Society the land above-mentioned for £268, without interest, to be repaid by monthly instalments, extending over a period of 12) years. On Octobor 28th, plaintiff and defendant entered into an agreement of purchase and sale of the land for £QSO, the amount of mortgage, £268, to be treated as part of the purchase money, and plaintiff to telco ovoi the two shares in the Building S ;ciety one any future liability attaching tboroto. Oc

January jjjlet plaintiff tendered to defendant a transfer of the land for execution by her together with the balance of tbo pprohaie money payable under the agreement, but defendant refused to execute the transfer and acoept the amount duo ppdor tho agreement. The plaintiff was Blill willing to complete the sale under the teripe of the agreement, but defendant fpfused. Tho plaintiff asked that defendant execute to plaintiff a sufficient transfer of the property oomprised in the agreement, and asked for damages for withholding same. Mr A- G. Bsere, secretary Gisborne Cooperative Building Society, stated that the land in question was subject to a mortgage of J 6268 lo the Society Oarolan Wilson was holder of twc shares, and transfer of which was signtc 500.au. ' H Hill, inspecor of schools fa Hawke’s Bay, gavo evidence as to thi negotiations which led t> the agree men being drawn up hy d ream’s Solioiuw One of the clause- of t e HgreetnunS Wa to take over “ mortgage liability, Wit

nocia eignod tho agreement producod. Tuoro was uo dispute as to the amount ho had to pay on tho biihmco of tho purchase, which was act down by Me Siovwright at L 1540. A letter was rcooivod by his eon on February Ist r< questing him to pay up tho halation in a wo. k. By Mr Nolau : Tho figures with regard to rates, insuranoo and tho amount to bo paid wero mado up identioal with tho fignros on tho book of tho oopy of tho ogreotuont when wituoss first oallod ou Mr Siovwright. Goorgo Stuok, solioitor, stated that ho acted for Mr Hill after tho disputs atoso wiih Mrs Wilson. Witness interviewed defendant’s solioitor, but iboy could not ogreo as to who was entitled to tho Lbu rebate. Ernest G. Matthows, aooountant with Mossro DoLaut mr, B trkor and Stook, deposed that ho was prosout at Mr faiov Wright’s oflico on January ill, and ten dored tbo obi quo for LolO os o-l, with another, balance of purchase money. Mr Siovwright said tho umount was not oorroot; that ho was holding tho LOS for tho Building Society, but tho two cheques would make up tho amount. Witness said his instructions wero to rocoivo tho ch quo for tho rebate. Mr Wilson oamo in, and tho mnttor being explained by Mr I Siovwright, ho said ho would not ogroo to ■ it, as ho oxpoolod to rocoivo tho L 65. Mr Nolan, for the dofonoo, said tho solo question was as to tho .£65. Tho distinct agreement was that tho amount of tho robuto was to bo paid. Katie Wilson deposed that Mr Hill first saw hor in regard to tho property on October £6. Ho 09ked if thoro was fl mortgage to tho Society upon tho property, and her husband said thero was to tho extant of £2OO, bought at £o-1 per £IOO. Mr said if they lot him havo tho shares with the mortgago it would make it muoh easier. Tbo first terms asked wore cash, Ho came over next day about noon, and witness explained that sbo was only going to k ep it at £650 that day, and if net sold sbo would cut it up in sections, and keep tbo corner for herself. He said ho would taka tho lot. Ho n-kod if sho would take terms, and it was agreed to take £SO cash, £2OO to stand in tho Building Society, and £4OO to stand at interest for three mouths at 5 por cent. Subsequently Mr Hill repeated tho egroement. It was arranged to moot at Mr Siovwrigbt’s office next morning, It was arranged tho previous evening that if Mr Hill took tbo property ho was to take over tho shades, and hor husband kept tho appointment Mr Siovwright had just started to road over tho agreement; when it oarre o tha cl»u«o about tho £263, Mr Hill asked for it to bo repeated. It was ro-road, and witness asked Mr Hill if bo expected to get tho £2OO for nothing, without paying interest. He just said. "AU right, go on ” The deed was afterwards signed. Witness saw no figures other than those mentioned in the agnemant itself. Ia her prosonoe Mr Siovwright did not go into any figures or toll her wbat was coming to her from the Building Society. By Mr Lusk: Mr Hill rrnde an offer to h-r husband prior to the offer of £650. Whan the latter oiler was mado Mr Hid a-ked that the amount b 9 allowed to remain on the property to suit bis convenience. Sho said nothing to him about the £6B when the arrangement was made. Sao aid not tell Mr Hill the indebtedness was £26S. Sao gave instructions to Mr Sievwright to moke out the agreement, Suo did not know why her instructions had not been carried oat in the agreem-nf. Sho knew some money had been paid by her husband off the mortgßge, but she did not know that day Mr Hill was to repay that amouot. She understood the mortgage was to remain on the property, and that the amount paid by ber husband was to be oon inued by Mr Hill. She learned that Mr Hill wa3 putting in a olaim for the rebate, and she also put in one. Witness thought the £6B was tbo interest, and she realised that Mr Hill was taking over a liability of £268 on the property. Mr Lusk : Exactly what we say. Carolan Wilson, husband of the previous witness, corroborated bor evidence. Cross-examined by Mr Lusk, he said the mortgage to the Sooiety was £269, and he oovonanted to pay the Sooiety £1 Is 7d per fortnight. Too £6S was interest. Witness agreed with Mr Hill that he was to take over the property with the liability. Only £2OO of the £268 was to be included in the purchase monoy. He heard the agreement read over, and it was mado nooordiog to his instructions by Mr Sievwtight. Witnoss thought he understood

Wm. Sievwright, solicitor, gave evidence as to having drawn up the agreement at defendant’s instruction?. When witness put in the words, 11 to the amount owing thereon,” he meant the principal. He considered the parties understood it was the principal referred to. Judgment wa3 reserved.

IN BANCO,

Emma Maty Dunlop (Mr W, L. Roes) appellant, v. Wm. Dougina Lysnar (Mr Stock), respondent, an appeal from the deoision of the Stipendiary Magistrate at Gisborne. An objeotiou to the appeal raised by Mr Stock, that the copy of notice of appeal served on respondent did not conta’n all particulars required by the Magistrate’s Court Act was disallowed by His Honor. Mr Rees stated that the case arose from an action by a solicitor on a bill of costs. Defendant disputed the liability on the ground that the work was done, not by her instructions, but at the instance of her husband, that she had stipulated with plaintiff that she was not to bo bold liable, and that when in August, 1898, sho signed a guarantee for her husband's costs to the extant of £2OO, and that she only signed it on the understanding that that she was not liable for any costs herself. It was proved that up to August 2, 1898, the items charged to defendant were shown in plaintiff's books as chargod to her hu-band’s acoount. It was argued by plaintiff, that a 3 Mrs Hun, lop had acespt-d benefits from tbo work dme by plaintiff, that she must be held liable for the oosts incurred. On the part of tbe defendant, it was argued that that would bo the correct reading unleea an understanding had been arrived at that she was not to be liable. Tho property wsh purchased in Gisborne. Dunlop doit red to pu’chaso, but his position as a trustee, precluded him, and Mrs Dunlop s name was put in, on tho understanding that she was not to pay costs. Plaintiff was acting as Mr Dunlop’s solicitor in ssverol actions at tho time. Early in August, 1898, plaintiff refused to proceed with Mr Dunlop’s C3ors unless Mrs Dnnlop signed a guarantee of £2OO for the costs. This was done, Dnd at an interview Mr Lysnar, in the presence of Mr and Mrs Dunlop, stated that Mis Dualop would not be charged with oosts. Nothing was hoard of any claim against Mrs Dunlop until an Auck land firm of sol cit.rs wrote to Mr Lysnar putlog in a c'aim of redemption, Immediately after reoeipt of this letter the bills of costs was tendered. Considerable negotiations ensued, and thon followed tbe summons, and it wits against tho judgment in this action that they now appealed. . Mr Stock said tho delays id hearing the j ei3o in the lower Court was because tho bill bad to bo taxed, Tbo present proceedings was not a rehearing of tho ease, but an appeal. Mrs Dunlop knew and adop’od her husband’s authority. Tho ovidence showed that Mr Dunlop had no other occupation but as bis wife's agent. His Honor ; Yfbat has to bo brought before this Couit is a copy of tho proceedings in the lower Court. How much of this cl dm relates to Mrs Dunlop ? Mr Stock road over tho bill of costs, the larger portion of which rolatod to tho trausfcr of morlgugo of tho Lowo street

property. ... His Honor: Were tho origioal entries in Mr Lysnar’s diary produced in tho lower Court ? Me Stock : YO3, your Houor; I am oo , ja : ng to that presently. Tho piomis aory note taken by Mr L}snnr was taken as security (or rent duo, Tho correspondence between appellant respondent olearly showed that Mr Dunlop was acting as his wife’s Rg«rt. Appellant’s clerk had made a tuisioko in not opening an account for Mrs Dun op. bus bar o*rj.; 0 d some of the items against her to her husband’s account. His Houor: Is Mr Lysnar’s diary in existence ? Was it not shown to tho MiflLti-a-e ? Mr Stock: I understand Mr Lysnar to say ao,

I Mr Rnoa : I understand that Mr Lysnar r fuse l to produce his diary on the ground that there was auditor Ooutt oaso ponding Mr Barton, S.M.,in reply to Ilia Honor, stated that Mr Lysnar bad produced tho diaries. Ho had uo objection to Me Barton sioing tho diaries, but objeotod to tho other side Boeing tho bocks in oonstquonco of a ponding suit. His Houor: What was Mr Lysuar's finauoial position in April, 1898? Mr Slock : In Augus', 1898, Mrs Dunlop had to guarantee Mr Dunlop's costs. Mr Stock quoted law in support of his arguments, Mr Rocs replying- I His Honor reserved judgment.