LAW AND POLICE.

New Zealand Herald, Volume XXI, Issue 6996, 19 April 1884, Page 3

LAW AND POLICE.

SUPREME COURT.—Civil Sittings.

Fbidat, Apbil 18,1884.

■ [Before Mr. Justice Gillies, and a Common Jury.] Hl3 Honob took' his seat on the Bench at ten o'clock a. m. .

Alley v. Hickson.—Mr. Tole and Mr. Napier for the! plaintiff; Mr. E. Hesketh and Mr. E. Cooper, for the defendant.—This was an action to recover "damages (£245) for breach .of an agreement. There was do-de-fence in answer to the declaration, but the defendant put in a counter-claim for £1760. The plaintiff, Henry Alley, is a settler at Hikutaia, in the Thames district. The de< fendant is a land' and estate agent in Auckland. On the Bth of January, 1883, the parties made an agreement by which a portion of Mr. Alley's estate was to be surveyed and cut up into allotments to be sold by the defendant, for doing this, the defendant was to. receive five, per cent, commission npon sale. There had been three .prior agreements to theoue'put in. By" the last of the prior agreements (dated 23rd December), the defendant had finished part of -the survey. The. agreement'in January put an end to the previous arrangements. It was agreed that the agent, "at his own expense," should survey, divide, and sell. The area of land covered by the agreement consisted of 3400 acres, not including that portion on the south side of .the Hikutaia Creek, and between the main road and the Thames Biver. The - defendant was to advertise the land for sale, and circn-: late 20,000 lithographs. Any sum over £11,200 realised by the allotments was to bo divided between the parties to/the agreement. Fart of the commission had been paid with promissory note for £500., .On the 14th of. February the property was put up for sale in the Academy of Music, Thames. It was not intended to sell the whole estate, but one allotment "here " and "there," in order that improvements would , give an additional value to thereat. All.charges for broker's fees and the like were to be borne by "the agent, and all Government fees, &c., out of the fund divisible between the parties.—Mr. E. Cooper said there was no evidence to be offered by the defendant, who relied npon his counter claim. The defendant would consent to a judgment for £245," the amount claimed by the plaintiff in his action.—A jury of twelve was empannelled to try the cause, — Mr. Hesketh explained to the jury the. new procedure under which what is called a counter claim is to be heard at the same time as the action, instead of the defendant being obliged to bring a separate action for the amount he claimed-against the plaintiff. The evidence that would be offered by defendant would, be in support of the counter claim.—Theodore William Hickson deposed to his. being employed by Mr. Alley as agent for the abovementioned .purposes. Witness surveyed and divided the land as required j had plans made of the allotments and thoroughly advertised the sale in the newspapers. The sale in February took place according to announcement. -Several allotments "were sold. When lot 139 was put up, and £3 10s or £3 15s was bid, being over the upset price, Mr. Alley cried out "£6." The sale was practically stopped. There was no bidding afterwards. The effect of this ■ was to prevent witness carrying . out . the agreement, and to. deprive the defendant of the profits which he might reasonably expect. Defendant paid the cost of the survey, £624; preparing lithographs, £12 ; printing, £33 ; circulating, £3 10s s advertising; £120. He believed that if the sale had been allowed to proceed it would have realised moro than £11,200; that it would have realised more tbat £1. an acre above the upset price,—. Cross-examined by Mr. Tole, the said that he made an agreement to sell a piece of land to Banks (224 acres). ' Believed he had authority to do so under his general authority to sell. The promissory note was given under the following circumstances :—Mr. . Alley wished to 'withdraw 600 acres from sale. This 600 acres was the cream of the whole estate. Witness believed that the withdrawal of this 600 acres would deprive witness of a profit equal to £1000. The promissory note was given as some compensation of - that loss of profit. Witness received letters from the plaintiff in which he complained that he was not satisfied. Witness did not recollect the praise that " he (Alley) had been 'had'" in this matter? Alley expressed certain wishes - as to . the place of the sale. He expressed an opinion that it would be -better to have it held at Auckland. There was no " warning" given by Mr. Alley that the sale should not be held at the Thames. Mr. Alley objected to the good lands being sold until the " back"' lands had been disposed o£ [The witness was examined at considerable length as to the charges for survey, printing, &c.] The three agreements before the Sch of January were cancelled. The whole estate wae valued at £16,000. Some portions of - it were worth £4 an acre, and other portions were worth £100 an acre. [A letter was received from Alley in which he said he would take £4 an acre cash all round for the land, and upon that he would allow commis-. sion.] —Peter H, Burk, accountant, deposed that in February, 1883, he was in the employment of Mr. Hickson as auctioneer. When the upset price was stated, Mr. Alley jumped the bidding up to £6, which damped the whole thing. In reply to Mr. Hapier, the witness said that Mr. Alley was entitled to one bid; that this lot 139 was opposite to his house, but he could not say whether it was Alley's intention to purchase this lot from the first.—J. E. Banks identified on the plan the lots purchased by him. —Robert Wight, farmer, deposed to the value of the land. He considered that from £4 10s to £5 an aore would be. a fair value for the whole acreage. Witness in cross-examination said he had not been over the whole of the land. —James Cooper Cairns, farmer and land speculator, residing at Onehunga, remembered the sale of Mr. Alley's -land. Went to the Thames to buy some of the allotments. Heard Mr. Alley bid £6 something for an allotment. The effect of this .was to induce witness to believe that Alley did not want to sell unless he sold the whole estate. Some of the land would be worth £12 an acre, some near the proposed station might be worth at the rate of from £50 to £100. Other parts appeared to him to be value for 10s to £1 an acre. The average value of the whole estate would from £3 10s to £4 an acre.—Cross-examined by Mr. Tole: Witness denied that he was in partnership with Hickson.—Gerald Peacock was examined as to conversations with Mr. Alley. — Mr. Robert Lundon, Surveyor and Civil Engineer, estimated the value of the work upon the plans at £618. The defence - to the counter claim was that Hickson did not perform his part of the contract; that instead of circulating 20,000 plans, he circulated only 11,000 the £500 was a loan; that the sale at the Thames was a failure, and Hickson's authority as agent then ceased.—Henry Alley deposed that he was under the. belief that any authority he had given to Hickson terminated on the day of the sale. He believed that the £500 was obtained under a misapprehension. He wished Hickson to come to a settlement in March. The note for £500 was given to Hiokson as a loan. £t was not correct to say tbat witness did his utmost to prevent the sale. On the contrary,' he did all he could to promote it. Witness bid for one allotment (139), which was immediately opposite his house, and it might be inconvenient in the hands of anyone else. He waß entitled to make one bid. —The witness was cross-examined by Mr. Hesketh as to the conditions of sale settled in the office of Mr. Miller, solicitor. He did not believe there was a bona Jide bidder at the sale except Mr. J. E, Banks. Witness would sell the estate for £4 all round. Witness did not remember telling anyone that the land would be more valuable if sold in allotments. Witness made efforts himself to get customers. He offered-two persons 2J per cent, if they could get customers. He preferred to sell in blocks than in lots, so that he should not have so mnch fencing.— David Richard Gellion and Michael Hennarly, land agents at the Thames, said there -were very few buyers in the Thamen. There were very few at the sale. Mr. Alley offered each of them 2} per cent, on purchases that might • be made by the clients of feith'er of them. The witness thought the sale was a failure. Mr. R. R. Maogregor gave similar evidence. Mr. W. F. Hammond was'examined upon the survey charges..., He assessed/them at £448, but he only allowed the scale for 28 lots. Couns 1 for either "ide having addressed the jury.—His Honor having summed up the evidence, the jury retired at six o'clock to consider their verdict, and the' Court adjourned for an honr.. At seven o'clock they returned into Court with a verdict for the. defendant for £1300, less; the £500 paid to. him by : .'io plaintiff.—Mr, • Cooper applied: for costs.—Mr. Tole- .contended that the: plaintiff was entitled to oosts-on acoount of the "amended" counter, claim.—His Honor, said the matter was one for the Registrar. I

The costs would betaxed on the higher scale. —The Court adjourned at haU-past seres to ten a.m. Saturday' (this) morning. ~