AN APPEAL CASE.

Gisborne Times, Volume XLV, Issue 3966, 26 June 1915, Page 2

AN APPEAL CASE.

HENRY TOZER V. CHARLES TAYLOR. A BUILDING DISPUTE. TI-IE APPEAL DISMISSED. 'The appeal case, Henry Tozcr (Mr H. J. Finn) y. Charles Taylor (Mr T. Alston Coleman), was heard by Mr Justice Cooper at the Supreme Court yesterday. This was an appeal from the decision of W. A. Barton, iS.M., in an action iff tlie Magistrate’s Court, respondent’s claim in the lower court being: “The plaintiff claims £lO 10s, being six months’ interest to September 7th, 1914, .due and owing bv the defendant to the plaintiff on the principal sum of £350.” The action came oil for hearing on December sth, 1914, when the Magistrate gave judgment for plaintiff for the amount claimed, with costs £3 is. The appeal was based on. the following ■grounds : (1) That the Magistrate's Court had no jurisdiction; (2)- that there was no valid contract, nor any contract whatsoever between the parties which could justify the Magistrate in giving a judgment for plaiilTiff; (3) that if there was any contract whatsoever between the parties whereby the defendant agreed to pay interest .to the plaintiff on the sum of £350, as alleged, such was in law a nudum fractum ; (J) that the Magistrate was wrong m holding that it would be useless for the defendant, and of no assistance to the Court, to establish by evidence tendered at the hearing by the defendant that the house erected by the plaintiff for the defendant for £350 (upon which the interest sued for was claimed by the plaintiff) was not built as agreed upon, was not approachable in winter weather, was not habitable in wet weather, and that the roof was not water•v.oof. iii consequence of which the paper on the several walls was destroyed,' and also that very inferior materi ml was used by the plaintiff and thereI by the Magistrate deprived the defendant of a defence to the said aci tion, namely, that he had not rccoivjed any consideration for tin* sum ot £3su, ‘especially as the defendant had j no title whatsoever, except a possessory one, for neither Lie house nor for i the laud upon which it was erected; (5) that in the absence of any writing signed by the defendant the magistrate was wrong in law on deciding the price of the land and house, thus I ignoring the defendant s evidence that ’ the price of the land and house was to j lie one sum of £450, and accepting the uncorroborated evidence of the plaintiff, that the price was £.IOO ami £350 respectively; (6) that it. as alleged by plaintiff, that there was a transfer of me land signed by the plaintiff in ids possession the magistrate was [wrong in law in accepting the price as i alleged by plaintiff without the production of such transfer to sec what | consideration was mentioned therein : j (7) that in the absence of any writing j signed by the defendant haying referj once to this action the magistrate was wrong in deciding that an action could jbe brought against him for interest I arising’out of the alleged agreement; j (8) that the magistrate was wrong in I law in giving judgment for the plaintiff in the absence of a contract that the defendant would pay interest; as a bare promise by the dclenchuit to do iso was not a sufficient contract; (9) that in law the action could not lie j against, the defendant owing to the I provisions of the Statute of Frauds; I (10.) that as a matter of law, notwithstanding the payment of £IOO, the taking of possession and the payment of interest bv the defendant, the defendant could plead and reply on the Statute of Frauds as an answer to the plaintiff’s claim; (11) that the verbal agreement between the parties being for the sale of land and the erection of a house thereon by the plaintiff to and for the defendant then in the absence of any writing signed by the defendant showing Lie terms of sale and conditions thereof, an action by the plaintiff against the defendant on such agreement or on any matter arising irom or in connection therewith is barred bv the provisions of the Statute ot Frauds, and the magistrate was wrong in law in giving judgment herein lor the plaintiff; (12) that the defendant never acknowledged being indebted to the plaintiff in the principal sum of £350, therefore the magistrate was wrong in law in giving judgment tor the interest thereon without proof that such principal sum was due and owing by the defendant to the plaintiff. °T’iie question for the opinion of the Court was—was the magistrate’s decision correct in law? Air Finn, in opening, said .this was an appeal from a decision of tlie Magistrate at Gisborne in a case in which the present appellant was the defendant and the present defendant was tlie pi unit iff. X'he present respondent was the owner of a piece of land, which he agreed to soil to appollaiK for £IOO. lie also agreed to erect a bouse thereon for a further sum or £350. , I Tis Honor said he must assume that as there was a conflict of testimony tiie Magistrate had found for the respondent. Mr Finn said there was no contract in writing, but there was a contiact, and it was the duty of the Magistrate to find out what that contract was tlis Honor said this was ail’ appeal on points of law only, lie did not see that the title was in dispute at all. If the contract had not been earned out, bad not the appellant a remedy in a (biim for damages? Mr Finn submitted. not, as there was no contract in writing. His Honor: Oh, but there was a contract. Appellant had got the house and was living in it. . Mr Finn contended there was no evidence to show the Magistrate "bother the contract bad been car non out or not. ~ His Honor claimed that tins was not necessary. Appellant was m possession under some contract, t.c conic not review the facts. II there had been breach of contract appellant had ids remedy. It appeared .that the point was a very simple one. Appellant bad gone into possession ot tlie bouse after it was lniilt, and agreed to pay interest on £350 at. He rate oi six per cent. He paid interest tor six months, but that was all. lhc transfer was to be handed to a.ppe hurt when he paid the £350, hut appellant could not get the money. Mr Finn claimed that the house had not been built to the satisfaction ot tlie appellant. His Honor pointed out that in tba case, appellant's proper course war, to commence an action, lor breach ol oo i tract. Appellant, in his evidence in the lower Court, admitted that he owed respondent £350, and had agreed to pay six per cent, until he could pn> tfl Mr^Finn said appellant had entered into this contract on ‘‘be under standing that respondent would bunrn him a proper house. His Honor repeated that d there ]i-.nl been a breach of contract appellant had his remedy. There was a valid contract, and possession was taken under this contract. Enteriijg ..nto possession without payment of. the money was part performance. Ho said in effect, “you hold the trnnsier until I can get the money, until I can I will pay you 6 per cent.” Mr Finn contended that appellant could not counter claim in the Magistrate's' Court because the matter arose out of the sale of land. The sale of the land and the building of tlie house were one and the same contract.

His Honor said that appellant had paid for tlie land, and had agreed to pay £350 for the house, and had entered into possession. His .Honor said he "Iliad read the case very carefully, and was satisfied that the appeal could not succeed. Where there was something more than a scintilla of evidence to support tho Magistrate’s decision, the Court could not waive the decision. The arrangement in regard to the sale of the land and the building of the house were unenforceable. What happened was this: Respondent built the house, and appellant took possession of it. Appellant told res-

porklcnt that he was getting the money from the Government, and until lie did so he would pay 0 per cent, interest! These facts were not disputed. Appellant’s only grievance was that respondent did not finish the house. His Honor quoted authorities showing that an admission by a party, in the absence of any writing, must be taken as evidence. The Magistrate had clearly based his decision on the admissions made by appellant. Appellant by entering into possession of the house could not say this was a special contract. His Honor said he thought the Magistrate’s decision was right, and he would have to dismiss Lie .appeal. In his opinion there was no point of law in the appeal, and tie could not admit facts. The appeal would Ins dismissed, with £5 5s costs. Tlie -Court then adjourned until 10-3.) a.iii. on Monday.