CIVIL SITTINGS.

Hawke's Bay Herald, Volume XXII, Issue 7928, 17 December 1887, Page 3

CIVIL SITTINGS.

(Before His Honor the Chief Jnstiee). ' . WILLIAMS V; HITCHBIAN. This was an action to have a deed of lease set aside on the. ground of .alleged ■ -fraud. ' Mr Cornfqrd and Mr Cotterill appeared for the plaintiff, Mrs'N. Williams,' and • Mr Carlile and Mr Lee for .the defence. • George Fletcher Williams, house decor- ■ ator, said he remembered tbat in De- ■ cember, 1885, he carried out some instructions with regard to the lease of property. Mis Williams' told' him to go to Messrs Brooking &' St. Oair, arid to tell them to .lease by public auction several sections for twenty-one years, among them being; section- 280, White-road, the subject of this action. - The'terms were to be a rise of 25 per cent, after seven years, and a ■ further 25 per cent, after fourteen years. - ' Mr- Brooking took down those instrue- . tions. Witness was not present at the . auction, but afterwards he sawdefendant, • who said to some person unknown to witness that he had leased this section, and '.in atiswer'tb how much lie gave for it he said it was 20s per. foot, .rising 25 per. cent. -each seven Next morn- ' ing witness' went to ' Messrs Brooking & St. Clair, who told him to the same effect. Early in the present year witness discovered that the rises in rental had been' left out of the lease. He took the first opportunity of speaking to Mr Hitchman on. the subject. The. latter replied " Oh; I can't help tbaWnow.bebauise I've borrowed money on-' I hslease as/ it stands." Prior to this, .about », month after .the, sale, Mr ' Brooking called apd got. some . deeds from .witness.. '.; Subsequent to that witnesß repeatedly saw Hitchman, who / wanted an extension of the lease, bat witness refused to alter the terms. Mrs ■> Williams-, was present at some of these interviews, ■which were held in .witness's office. Shortly before witnes3 discovered tlie error in the' lease he was walking along the White-road' when he met defendant, and there was some conversation about the section, defendant sayiDg he thought it a very poor sale; as there were ' *so few bidders present, and that if anyone • had been there -to bid against him he would' have ■ given fifty per cent, more ' rent." When' Hitchman wanted to extend the lease witness wonld riot entertain any offer, and he'did not refer defendant to any solicitor, or give any solicitor instructions as to a new lease., -„'.--. Cross-examined by Mr Carlile : Witness- ■ saw Mr Brooking several times before the ■ sale, but' he did not recollect any altera- . , tions^ in the. instructions at first given. . There were put up to auction, at, the same time several other sections. He doubtless saw <the advertisement in the papers; ' [Here a file of the Hawke's BkyKmnivo and verified copy of the advertisement were • put in',. fo' 'show that nothing was said in " the advertisement about' 'rises of rent.] Only; one'', other section, was sold at, the same time, and that was offered on different.terms,' there being only one .rise in • ; teri'years;' When witness saw Hitchman.afterthe sale the latter specifically menrises .in "rent to. the man to _■" -whom he was speaking. Witness did not know tne man,' and would not recognise ■ . i him again if '.he' saw 1 him., ' ' Mr Dewes > ■ .- prepared the. lease, but witness did not . ■ give him:fflny instructions. Witness re- ' -membered authorising defendant toengage i Mr Kochforb to make a survey, but he had ■ ■' no recollection of telltnghim at the same ' ' interview, to go to Mr Dewes to get the •! lease prepared, as he had prepared the • 'other one. Witness thought the lessor • had nothing to do with preparing the ' lease;' and He did not engage Mr Dewes .in connection witli the'other lease. Wit- ■ 'ness heard from Mrs Williams that there ' -tfas soore difference with defendant about ' a- covenant to insure. "He knew, nothing about. the omission of the rises from the : , .lease until he got conies of both leasesfrom Mr Dewes' clerk, and read them over. -Be, did not instruct Mr Corrifonl in the case for some .time afterwards. Koope Brooking, land-broker, said he remembered Mr G. Williams giving instructions about the sale of various properties belonging to Mrs Williams, among them' being the one subsequently leased to 'defendant. He was told that this . section was to ba put up at 20s per foot, ■ with an, increase of 25 per cent, each ■ seven years.' The section was sold under those terms in December, 1885, the conditiona- of sale (put in) being read. The general conditions were first read, and then, as each section -was put ap, the special conditions relating to it. witness received no instructions from Mrs Williams or Mr William* to employ • Mr- Dewes to prepare the deeds., Witness's 'firm were instructed to prepare ! them, and they were nearly complete when Mr Dewes called in and said he had ". teen instructed to prepare the lease to Hitchman. Mr St. Clair destroyed the deed, on which he was then working, and handed the : certificate- of title to Mr Dewes. . Nothing was said j).y, Mr Dewes. about the terms of the'lease/. ' '•' Cross - examined by Mr Carlile : Mr Hitchman -had applied 'to witness's firm for a loan on mortgage, but it was not negotiated. When applying, ivtr Hitchman stated in writing that the lease was for 21 years at' 20s per foot. Subsequently he got' a loan from . a building society with which witness was connected. Witness was pre- , sent when Mr Dewes entered the office and said he had been instructed to pre- - pare the lease, but did not remonstrate. In June this year Mr St. Clair accidentally looked at the lease, which was in the firm's hands . a» agents for the building, society. He called out, "Why, Brooking, there's no advance on rental." Witness subsequently mentioned the matter to Mr Williams, and some time afterwards, when defendant was in the office, Mr St. Clair told him there was an error in the lease. Defendant said, " Well, that ig the greatest stroke of luck I've had for a long time," Subsequently he had some conversation* with Mr Hitchroan on the subject, and the latter said on one occasion that he neither admitted nor denied the omission in the lease. Thomas Clarkson, hook-keeper at the • office of Messrs Brooking amf St. Clair, gave corroborative evidence ia- to what ■ occurred at the sale. U. James Moore St. Clair, partner in the firm of Brooking and St. Clair, deposed that as brokers the firm had the memorandum of' lease to prepare. Witness usually performed that class of work, and S . subsequently prepared the requisite draft. v/ Before doing that, however, he requested

'.Mr' Brooking to procure the certificate of Ititle, and that was done. The terms of the lease were written in the auction sales book in pencil, and the rents to be paid were included in the draft copy of the lease. The terms were £1 per foot for the first seven years, £1 5s per foot for the second seven, years, and £1 10s per foot for the third seven years. When the first copy was written out Mr Dewes came in to witness's office, and said he had been instructed to draw up the lease to Hitchman, and would like the title. Witness looked at Mr Brooking, and as he made no objection witness handed the document to Mr Dewes. When the latter went out witness remarked to his partner " This is a beastly chouse," and tore the lease copy up and threw it in the fire place. The next thins heard about the lease was from Mr Hitchman, who came into the office several times with regard to an alteration in an insurance clause. Witness gave no subsequent instructions about the lease, and was not aware of any instructions having gone from the firm's office. In January, 1887, witness had occasion to look over some deeds prepared for the building society, and found among them the lease to Mr Hitchman. Witness found that the terms showed only one rental for the whole period of lease, instead of as at first arranged, and asked Mr Brooking if he knew of any special arrangements made since between Mr Hitchman and Mrs Williams. Mr Brooking replied "No," and witness told him to inform Mrs Williams, Shortly afterwards witness saw Mr Hitchi man a«d told him of the mistake, when •he replied to the effect that it was the greatest streak of luck he had had for sometime. Witness told Mr Hitchman that he ought not to take advantage of a pure mistake, to which he made no definite reply. Cross-examined by Mr Carlile : When Mr Dewes said he was instructed to prepare the lease, witness thought the instructions to that end had been given by Mrs Williams. When the conversation about "the' streak of luck" took place Mr Brooking was present. ' Sarah Williams, plaintiff in the action, deposed that in December, 1885, she instructed her stepson to prepare some leases. With regard to the sections in Hastings-street she instructed him that the terms were to be £1 per foot, with 25 per cent, rise for the second seven years and 50 per cent, for the third period. The leases were to be put up by auction, and she instructed Mr Williams to give the sale to Messrs Brooking and St. Clair, as she had heard that they were honest and straightforward people, and thought she would have np trouble afterwards. After the sale interviews took place between Mr Hitchman and witness with regard to concessions he desired, but the result was witness telling him that he. must abide by the conditions ' of sale. Witness never consulted any solicitor on the matter, bnt once Mr Dewes came to her and asked if a certain lease to one Simpson might he altered by striking out a clause, as Mr Hitchman had' refused io have a similar clause in his lease. Witness allowed the clause to be taken out. In 1886 Mr Hitchman, accompanied by Mr Dewes' clerk, called at witness's bouse with ' a lease to be signed. Witness said' she was too ill to do business, and ~ refused to have the lease read to 'her oh that acconnt. Mr Hitchman then said that he was raising money to erect buildings, and that witness would oblige him very much if she would sign the lease. She asked the clerk, Mr Peacock, if the lease was all right, and he replied that it was, whereupon witness, seeing that Mr Hitchman appeared very anxious, and being desirous of obliging himj signed the lease. Before signing witness heard from Mr Williams that the terms of the sale had. been according to her instructions, and when she was told the lease was correct she supposed, that it set out the terms correctly. Subsequently witness learned that the lease she had signed set forth the terms incorrectly. ■ Cross-examined by Mr Carlile : Knew that Mr .Peacock was Mr Dewes' clerk, and on one occasion witness signed a lease brought to her by Mr Peacock: Gavin Graham Peacock deposed that in February, 1886, he was employed as clerk by Mr Dewes. In that month Mr Hitchman came to the office and spoke about wanting a lease prepared. He wished to see Mr Dewes, and subsequently did see • him. When the interview took place Svitness heard part of what was said, which was to the effect that Mr Hitchman wanted prepared a lease to himself from Mrs Williams. Heard the words £90 a year used, but did not pay particular attention. Some time afterwards witness received from Mr Dewes instructions to draft a lease, telling him that if he wanted any further particulars, he could get them from Brooking & St. Clair, who had sold the property. Witness went to the office of that firm to get the linkages.'but could noWay whether the terms of rental were mentioned. In the draft prepared by witness the rent was stated at £90 a year for the whole term, and no instructions as to the rental being raised were given to witness. The draft was subsequently read to .Mr .Hitchman by Mr Dewes, and Mr Hitchmah objected to the clause about insurance, and wanted one put in providing tor compensation for improvements. ; .Mr Dewes said • he could not make the alterations without consulting Mrs Williams, bnt witness was not aware that Mr Dewes ever saw Mr Williams. Witness never saw her on the matter. Mr Hitchman, was very anxious about getting- the deed signed, and came into the oflice several times about it. Witness saw Mr George Williams and asked him if Mrs Williams was likely to come down to the shop, as Mr Hitchman desired the lease signed. Mr Williams said that Mrs was ill, and subsequently witness, and, Mr Hitchman went to Mrs Williams' house. Sue was ill, but witness explained that Mr Hitchman's anxiety to get "the deed signed was the cause of troubling her, and offered to read the lease to her. She said she was too ill to. -hear ,it, and that even if well she would not understand the . lawyers' terms. Mr Hitchman explained that he was raising money on the property, and Mrs Williams asked if the deed was all right, and upon witness replying that it was she signed it. Cross-examined by Mr Carlile : At first Mr Dewes considered that he was acting for both parties. When witness went to Mrs Williams he went at the request of ! Mr Hitchman, and as a favor to him. The mo<lificationfc;in the lease asked for by Mr Hitchmari^ere partially executed. Henry Williams deposed that the plaintiff in the action was the widow of his deceased brother, and was the sole executrix in the estate. She frequently consulted witness on business matters. In February of tins year she told him that she had done a foolish thing, a3 she had signed a lease to Mr Hitchman when she was too ill to' hear it read. She said that the errors in the lease left the rental at a fixed sum for the whole period of the lease, instead of providing for increases. Witness subsequently saw Mr Hitchman, and there was a conversation about the lease,. Witness asked him if he knew that the lease was drawn iip wrongly, and he replied, "No, is it ? " He admitted that the terms of purchase provided for increases in the rental,. and when told that these terms were Jiot in the lease he said he supposed the matter could be put right. Witness . replied that the matter would have to be seen to, and the conversation ended. Cross-examined by Mr Carlile : Witness commenced the conversation, which took place in Hastings-street. If Mr Hitchman denied that the increases in the rental were mentioned he would be telling an untruth. This concluded the evidence for the plaintiff, and at this stage there was considerable argument on a point raised by His Honor as to whether it was desirable that f.he plaintiff's claim should rest splely upon the allegation of fraud, and it was finally agreed that a supplementary clause should be included in the pleadings alleging mistake, and praying for such relief as the Court may think fit. MrCarlile called the following witnesses for the defence. ' Frances Logan deposed that early in 1886 Mr Hitchman brought him a draft lease to look over. The lease had been prepared by Mr Dewes. Some covenants in regard to insurance were materially altered by witness, .who subsequently saw Mr Dewes about them. Witness formed the impression from the manner in which Mr Dewes discussed the question that he must be acting for the other parties to the lease. Witness subsequently prepared a mortgage of the lease to a building society, the instructions being given by Mr Brooking, who was secretary of the society. Cross-examined by Mr Cotterill: It was the fact of Mr Dewes preparing the deed and Mr Hitchman bringing it to witness for perusal that made him look upon Mr Dewes as acting for the other parties. Mr Hitchman said lie had brought the lease from Mr Dewes' office. David Charles flitchman, defendant in the actioH, deposed that he became lessee at an auction sale of the piece of land mentioned in the pleadings. First became aware of the sale through seeing an advertisement in the Herald. Was not present at the commencement of thesalo. In putting up the land for lease Mr Brooking stated that it was offered for 21 years, but did not say anything about the rental. The land was put up in two parts, and witness secured the firstlot at 15s a foot and the second at £1 a foot. Shortly after the auction witness "applied to have the Jand surveyed, and this was done. Applied to George Williams', plaintiff's representative, to ask him what lawyer was going to draw out the lease, and to get the lease prepared. He said Mr Dewes had made out the other leases, and might as well make out the one for witness. Went to Mr Dewes and told him there was a lease to be madeout between Mrs Williams and witness, expecting that Mr Dewes had, been or would be instructed on behalf of Mrs Williams. The lease was to be drafted

by a certain date, and witness went then and heard it read. He objected to clauses about insurance, wear-and-tear, and subleasing, but Mr Dewes said he could not : take the p 1 .uses out without authority ! from Mio \Villiams. Witness then saw Mr Logan, and the result 'vas tho taking out of the clauses. The lease was executed at Mrs Williams' residence by an Arrangement with Mr Dewes. Mr Peacock, Mr Dewes' clerk, accompanied witness. Never told anyone that he had j leased land at £1 a foot with 25 per cent, rises. His impression was that he had given too much for the back section. First heard from Mr H. Williams that Mrs Williams thought a mistake bad been made. Witness was going along Hastings-street in a hurry, passing Mr Williams on the way. He touched witness on the shoulder in passing and said, " Oh, Hitchman, there is a mistake in that lease of yours." Witness replied "Is tliere ? lamin a hurry now, but 1 will see to it." Nothing else was said. Subsequently Mrs Williams came to witness's shop and spoke of an error in the lease, but did not say what the error was. First heard what the alleged, error was from Messrs Brooking and St. Clair. Witness went in to their office and made a remark to the effect that " the Williamses are at me again." Mr Clnrkson, the clerk, took the lease out of the safe and read it, but witness did not remember Messrs Brookfhg and St. Clair saying much. There was nothing said about "streak of luck," as witness never considered there was any luckabontit.lookingnpon the rental stated in the leasers a full one. Subsequently conversed with Mr George Williams, who, in a persuasive voice, told witness that if lie went to Mr Cornford's office be would get a fresh deed drawn up for nothing. Witness replied " You must be dreaming." Never said to Mr G. Williams, " I cannot help any error now, as I have borrowed money on the lease." Looked upon Mr Dewes as acting for Mrs Williams, and trying to enforce clauses witness objected to, and that was why he want to Mr Logan. Cross-examined by Mr Cornford : Gave Mr Dewes no instructions. Considered that Mr Dewes was acting for both parties. When application was made to the building society for a loan the application stated that the rent under the lease was twenty shilling a foot frontage. Would not say that Mr Peacock was telling an untruth if he said that witness instructed Mr Dewes as to the rental. Was positive that Mr H. Williams never told witness of any error in the rent. If any remark was made to Mr St. Clair about a " streak of luck " it did not relate to the lease. Thomas Sidey deposed that Mr Hitchman offered witness the lease of a piece of land on the Beach-road at a yearly rental of £1 5s a foot for 21 jears. Witness replied that it was not good enough. It mightbe worth£l 3s a foot, but he would think of it. Considered that a good lump rental for 21 years for the whole block leased by Mr Hitchman would be £1 5s a foot for Hastings-street and 17s 6d a foot for Beach-road. Charles Edward Palmer deposed that he was present at the auction sale when the piece of land referred to in the pleadings was put up, and also when a piece in Emerson-street -was put up. Could, not remember whether he wag present when the conditions of sale were read out, but was present through the whole time when the particular piece of land was knocked down, as witness thought, to Mr Hitchman at £1 a foot. To Mr Cotterill : Toek no particular notice of what was going on. James Sidey deposed that in January, 1886, be was chairman of the building society which advanced money on Mr Hitchman 's lease. Considered the security was {»ood enough. This concluded the evidence for the defence. At Mr Cornford's request the Court allowed the witness Clarkson to be recalled. He deposed that when the conversation tookplace between Mr Hitchman and Mr St. Clair, the latter spoke of the error in the lease as to the rent, and defendant -replied that it was the best thing that had happened to him for years. Mr Carlile contended that the evidence of the plaintiff's witnesses altogether failed to show any fraud. It was quite natural to suppose that the sale was conducted in sncb a loose manner that Mr Hitchman might have supposed that he had purchased a lease at £1 a foot for the whole term. The advertisement in the Herald also failed to give details of the sale, but simply stated that land would be offered tor lease for 21 years. It was very peculiar, too, that Mr Brooking should sell the property under certain terms, and then fail to remember, when shortly afterwards an application for a loan came before him as a director of the building society, that the terms of the sale were different to those of the' lease. If Mr Brooking, the auctioneer, and lender for the society, could make such a mistake, was it not likely that Mr Hitchman, the buyer, and the borrower from the society, should also fall into a similar error? Mr Carlile reviewed the whole evidence at considerable length, and contended that whatever errors might have been made his client could not be rightly held blamable. There could be no doubt that Mr Dewes took up the position of acting for Mrs Williams, and that was shown by Mr Hitchman going to- Mr Logan to secure the excision of certain clauses. If he had been contemplating fraud he would have passed those immaterial things, and would have iacilitated the signing of the deed as prepared by Mr Dewtis in order to escape from the terms of sale. If there was any hardship in the case it was greater upon a a poor man like the defendant rather than upon the plaintiffs. At this stage it was decided to adjourn the further hearing till Saturday.