CLAIM FOR SPECIFIC PERFORMANCE.

Manawatu Standard, Volume XLI, Issue 9742, 6 March 1914, Page 7

CLAIM FOR SPECIFIC PERFORMANCE.

His Honcr Mr Justice Edwards was engaged at the Supreme Court yesterday in hearing a "claim f<>r an order for the specific i in formance of an agreement. Plaintiffs weir Mary Alice Silson, of Palmcrsron North, widow, and the Official Assignee in Bankruptcy of the property of Oliver Noel Gillespie, and rhe defendant. Fredciick William Bismarck, of Beaconsfield farmer.

Mr Cooper appeared for plaintiffs, and : Mr Murphy for defendants. Plaintiffs! !>v the statement of claim, set out (1) that on March 29, 1913. Oliver Noel Gillespie entered into an agreement with the defendant for the sale of 153 acres, being sections 7 and 24, lot 4. subdivision 0, Man-. Chester block, at the shim of £35 per acre, I subject to a first mortgage of £2680, and •eeond mortgage of £1204. For the difference in equity, the vendor agreed to accept a collateral mortgage over the property of 813 acres 3 roods 29 perches, section 7, block 4. Kairanga survey district, also over a property of 210 acres, situated on the Mang.aone road, leased with a compulsory purchasing clause to one Brabent, the properties of the purchaser, such mortgage to \w for 5 years at 5 per cent : possession tq be giver on April 7. ICJI3;1 C JI3; (2) that Gillespie made such agreement as trustee or agent for the plaintiff, Mary Alice Silson, or in the alternative, that Gillespie made thy agreement on his own behalf; (3) thatiat and since the time fixed lor completion of the «»iid agreement, Gille-pie was ready and willing specifically to tarry out and perform the agreement, and so informed the defrndatii; (4) that on October 25, 1913, Gillespie was adjud'Cii: d a hank nipt; (5) that since Ottobi r 25. 1913, the plaintiffs, and

each lit' ihem. have been ready and willing specifically io earn out and perform tht agreement, ami have «•<» informed the defendant: (6) lhat. the <!■ f.inlaiif has failed and refused to carry out the agreement on iii« part ; (7) -that in expectation of the due completion of rue agreement, Gillespie went (<:ii of possession of the property and the plaintiffs and each of them have been out ( ,f possession of the property and ham thereby incurred considerable expense and have otherwise suffered great locs and damage by vns.'M of the nun-completion of I ho a«re/>ment on the part of the defendant; to) til] limes have elapsed and all titinurs hav« hiij- ned and all conditions have been fulfilli.' c necessary to entitle the plaintiffs or oir ' rlii'in to* have the agreement sp«cificaiiy performed by the defendant. in view of these 'allegations plaintiffs ask d : (1) That defendant be ordered to specifically perform the said agreement on his part; "(2) judgment for the sum of £3OO damages; (3) -alternatively (if specific performance could not. be had) judgment for rhe sum of £1500; or in the alternative the plaintiff Marx -Mice Siisun. and the plaintiff, the Official Assignee in Bankruptcy of tlie property of Oliver Noel Gillespie respective y pniyed for the order and damage* and judgment previously stated. Defendant, by hie slateniohl of defence, admitted enteiing into [he agreement, but alleged that he was induced to sign it, by undue influence exercised upon him by Gil- ],..!:•' and by one Victor Williamson. a land agent tn th" employment, of Gillespie, and he said further that but for the cxer- ( : ~ ~f -ueh undue' influence and tin ir action in prevenlimr him from consulting hi? solicitor he would Hot have signed tli" au're.Mit. Nt ; he denied thai Gillespie made, the agr emeril as agerd or trustee for Mary Vice"Sil.-on, and he said th.it rile plaintiff never gave Gillespie aurhority to sign lh» nt on her behalf, and that until Gillespie absconded from X. w Zealand the said Mary Alice Silson had no knowledge of the xistence of the agreement or of th* property therein mentioned, and he said that G lespie enter.'"! into the agreement on his own Mialf; lie denied that Ciller pi.' and Mary Alice Silson. or either, has been ready and willing to specifically earn mil and p.erfi rm the air: et inent, and he d<ni"d that tivv informed him that thev u.re r,er icadv to do mi. and he ullegrd thai n : t!: : Gtil ' pie nor Mary Alice Silson ha a' ih '■ I im jl of enti i ing into final.': i I'linn'i ot ■ :n< c e. any rigid title or in - • >\; -, v. hat e '■•■. le rai or equitable, in t! ■ land, t! e -i ij i of the agreement for sah\ and thai neitl i-r was at lh" time of ent< - ii!» into tin-' agreement or had since been able to give a uibd and I. gal title to the -a : d fir p-'i l;». and liie defendant specific - ally d,- i:d d ..-..'e allegation in the said parag>a' h : lie admitted :i: ■ ah' gat ions in par :- graph - ; ae-w i v'm-r pai agraph 5 lie- dine ! thai GiH.s ,ie or Mary Alice Silson had evei- been ready to carry out tho said agreement <*r . ve,- infoisned defendant, and !e (!•!, d that ..iiiier of them ever approach! liiui in regard to the matter or laud' ri i to h.in a moilgage for execution. as i:ien ioned in the agrunient, or had required dim to lende,- a transfer of the land for exiiuiinii, ; : ]'<l he had never had any communication from Mary Alice Silson en the main r, and tie alleged that Gillespie abscom ed from the Dominion in September. I'al3. and remained concealed from justice uniil his arrest in December last. and had abandoned.the agreement, and the defendant specifically denied the allegations; he admitied. for (inter alia) the reasons sir out 'iVa')-. ihat he has refused to (airy ..nit the acivt inent; in answer to . paragraph 7. he denied that Gillespie or ' Mary Alio 1 SiUou wa> ever in possession of I the property, and he therefore denied that they ever went out of po.-sesfiioii. and he ; *aid that he was unable either a; the time for completion or at any subsequent tin;'' ! to obt; in possession of the property owing I to th..' same beiny Constantly used by own- ! ers or occupiers tiiereof for grazing cattle I arel sheep, and he specifically denied the allegn'.oiis; \v th end tle> allegations in paiagraph 8; and for a further defence he repeated the allegation-, heretofore stated. and saio that at the time when he entered i into tie l agreement In' expressly informed Gilhspie and the said V. Williamson that i he was bin i ; ! .r tie. said property in order I to graze cattle thereon and to use the same ! as a dairy farm, and that he required a j good growth of bur found that the owners or occupiers thereof had placed •'.'i if a large number of sheep and cattl". i which had eaten out and destroyed the i grass and had rendered the property unfit ; for th - purpose for which he required the jsaino: and for a further defence he said j that ai the tinu of entering into the said i agreement it was represented to him by i Gillespie and Williamson that the first mortgage on the said property was for £2600 and had two years to run, and that thesecond mortgage had about four years to run. j and it was so stated in the agreement, and j tii" defendant entered into the agreement I reiving on the representations, and would i nut have entered into such agreement had

euch representations not been made to him; the said representations were untrue in fact, in that the first mortgage was for £2680 and had only one year and eight months to run, and the second mortgage had only three years and eight months to run at the time the agreement was entered into, and not the time as represented to him; and for a further defence defendant said that at the time of entering into the agreement the land was subject to an agreement for tenancy to one Frank Jary, which was not disclosed to him, and owing to such tenancy Gillespie was unable to give possession of the land to the defendant, and had the defendant known of such agreement for tenancy he would not have signed the agreement for sale. Lengthy evidence as to the negotiations tnd the entry into the agreement was given by Oliver Noel Gillespie. Victor Williamson, of Feilding, land agent, who arranged the sale, gave corroborative evidence as to entering into the agreement. The original he handed to the previous witness, but he identified a copy, produced, as one taken shortly afterwards. Bismarck went to another solicitor, as Gillespie said he should do that. To the Court: Gillespie did not tell defendant, not to go to another solicitor. E. A. Houghton, who grazed his stock on the property from July to October, and P. S. Miles, solicitor, of Feilding, who stated that the original agreement between the parties could not be found in the Foildincr office of Prior, Gillespie, Miles, and Cook, ako gave evidence; also.C. F. D. Cock, another partner of the firm, and this '< closed plaintiff's ca.se. ! For (he defence. "Mr Murphy intimated that he intended to call evidence and ad I dress the ('ourt later.

Defendant then detailed his recollections of the transaction. He understood the property was Gillespie's. Williamson advised witness to let Gillespie do the work. Mr Cooper intimated that he did not intend to examine witness, and this closed the ease for the defence.

Mr Murphy claimed that 'he suit must be dismissed or: the ground that it was inequitable, lie submitted that if defendant had known of the peculiar and complicated position he was entering into, he would nerer have done so.

His Honor remarked that he could not decree specific performance if the title could not be given. Mr Murphy: My instructions in the case hare not been borne out by what happened to-day.

His Honor allowed the decree for speci fie performance on terms to be siltied \>\ the parties, and fading settlement by then: to be fettled in Crrinbers. Costs were ai lowed as on a claim for £SOO.

Mr Cooper intimated that his client would not a*k for damages.