LAW AND FOLIC

New Zealand Herald, Volume XXVIII, Issue 8679, 23 September 1891, Page 3

LAW AND FOLIC

SUPREME COURT.— Sittings, . Tuesday.

[Before His Honor Mr. Justice Conolly, and a special jury of four.]

Andrew McLeod v. Alexander Wiiyte. •—ThL was •an action to recover £300, amount which a certain property at Helensville belonging to the plaintiff, and over which the defendant had a mortgage, was alleged to have been . under-sold. Mr. Hesketh and Mr. Clayton appeared for the plaintiff, and Mr. Theo. Cooper, instructed by Mr. C. S. S. George, for the defence. The case had been before the Court the whole of the previous afternoon, and some evidence as to value had been taken. This was now continued. William Duncan, insurance and commission agant, who had examined the house and property valued them at £850, and said its weekly rental should be from 20s to 255. : .Richard James Vercoo, who was a builder [ until ; three years ago, and latterly a. land and commission agent at Helons ville, valued the property at nothing less than £1000. It was the finest property between Mount Albert) and Helensville. He tried to purchase ib about four months after Mr. Downer 'got possession, and lie offered £1000 for it, and about threo weeks afterwards Mr. Downer told him he would not sell, that his wife and children had now got accustomed to the place. Witness valued the house at £600 fully, and there would be no difficulty in setting a rental of22sGdto2ss weekly for the house and. land. Witness was agent of the Imperial Insurance Company, and offered to insure the house in 1889 for £500 or £000, and would have given £500 on it in December last. In cross-examina-tion witness said he would not be surprised to hear that Mr. Downer would now accept £700 for the house and ■ property. John Hunter, contractor, Helensville, said he had houses let in that place. A two-roomed house he had let for 43 a week and a fourroomed house for Bs. They were from a quarter to half a mile of the railway, station. lie had no trouble in letting them. It was very seldom there was an empty housein Helensville, and hisopinion was that Mr. McLeod's house should let at 22s a week. In January last he inspected the property, and reckoned it was then worth £850. He put the house down at £630 and the ground at £129, and the outbuildings and improvements at £100. Alfred Parker was called, but did not appear, and Mr. Hesketh closed the plaintiff's case. Mr. Cooper opened the defendant's case, and quoted an authority which he handed to His Honor to show that if the mortgagee exercised his right of sale the law would not interfere unless the price was so low as to be evidence of fraud, but the evidence which' he said he should produce was such that they would not have to consider the question of price at all. The plaintiff, Alexander Whyte, Onehuncra, deposed that up to December, 1890, ho was mortgagee of plaintiff's house, the mortgage being for £500, advanced in June 1886. Mr. McLeod then stated the value of the property to be £800, and witness advanced £500, the house being then insured for £500, but subsequently it was reduced to £400. Witness tried to get the insurance for £500, bub failed. The mortgage fell duo in June, ISS9. The interest had been far from regularly paid up to that. The interest due then was not paid until August 13th, and it was after that he saw McLeod, who told him he had just paid the interest. Witness told him ho wanted the principal also, but ho said ho could nou pay, and that lie would hand over the property if witness would release him from it. Witness did not _ accept the offer, as McLeod had previously told him that the property was not worth the money. About the beginning of October lust year, they had a conversation in Queen-street, and witness then told him he would give it to his solicitor to recover his money the best way he could, and plaintiff said he could nob let it, and could not sell it, and if witness issued a judgment summons against him, he should file. Witness sold the property in December to Mr. Downer for £550. Before selling it he consulted several land agents whom he knew, and acting on their advice, as they told him ho would never get his money, the £500 lor it, lie sold to Mr. Downer. At the time ho sold there was more than £550 due to him. He lest £15 on it, but he was exceedingly pie) to get the offer. The witness was cross-examined. E. T. Dufaur, solicitor, was examined, but did not place a value on the property beyond saying the house was too good for the district. Mr. Walter Ellis, clerk to Mr. S. George, gave evidence a3 to the conversations with plaintiff, who told him he could not pay the principal bub would pay the interest outside the promissory note which lie had given, and which he said would run till March. Witness told him .they would nob accept those terms, and would sell. He replied, " You can't. I've tried to let it, and tried to sell it, and I cant." Witness said, "We will, sell." Plaintiff asked what was the lowest Mr. Whyte would take, and witness replied principal and interest £550, and witness replied, "He will never get it. Tell him I'll give him £450 for it, and if he won't take that," tell the old ,man he can take the property." He saw plaintiff again before the sale was completed, and conversation took the same turn as the previous one, except that plaintiff told him to tell defendant he would give him 103 a week rent for it. The National Bank had a second mortgage on it, and he gave them notice on the 21st November they were going to sell, and the Bank offered £450 for Mr. Whyte's interest which was refused, and the property was subsequently sold to Mr. Downer for £550. In cross-examina-tion, witness said it was he who introduced -Mr, Downer to Mr. Whyte on the 21st of November. William Downer, contractor and builder, who purchased the property in December last for £550, said that lie was not then prepared to give more for, it. Ho had since effected drainage and other improvements, and had timber on the ground to renew the fencing. He said he could build a house like it for £400. He denied that Mr. Vercoe had made an arrangement with him to buy the property for £1000, but he asked witness if he would take £1000. Witness may have said " Yes" to get rid of him,' but he took no notice of it, as lie did not think ib a bona fide offer, and had he offered £700 cash he would have taken it, and would do so now. Mr. W. S. Cochrane was called. His valuation of the property was £500. Mr. Samuel Vaile said the property might fetch £500 at a forced sale, but its outside value was £550. John Bollard, land agent and valuer, who had made valuations for tho- Land Tax Department and local bodies for the last twelve years, valued the property at present at £520 less improvements made by Downer, or £510 in all. In his opinion it was .doubtful if the property would have realised £400 at auction in December last. In cross-examination, he said he valued the house at £280. Ho valued the whole of the other buildings at £40, and the other improvements at £80, and the land at £120. He did not think the house would lot for £50 a year, bub a fair rental for it according to his valuation would be £55 a year. By Mr. Cooper : That was to give the purchaser a fair return for his money, but taking into consideration the class of people who live in Helensville it was doubtful whether a man could get £40 a year for it. Mr. Newman also gave evidence. Georgo Hawkins James, builder, who stated that he had examined Mr. Downer's house last Wednesday, said he reckoned it could be built now for about £350, and ho should say there was no difference in the cost of building now and what it would have been in last December. The stable and other buildings could be putthereforabout£so. The witness was cross-examined as to' the quantity of timber which would be required. Hedid notinelude a mottled ceiling, but he included the carved ventilators," which were of the ordinary description. This closed the defendant's ease, and Mr. Cooper addressed the jury, submitting that the plaintiff had clearly failed to prove a grievance against the defendant; but that, on the contrary, the best possible care had been taken by the defendant to obtain the highest price possible. He spoke at some length, and Mr. Hesketh replied. His Honor summed up the case, and the jury retired at twenty minutes to four o'clock. • After waiting half-an-hour, and there being no prospect of a' unanimous verdict, His Honor, -by consent, accepted a three-fourths verdict, which' was for the plaintiff "'for £100 damages. Judgment was accordingly given for this amount, witlrcosts.' The Court then adjourned until ten o'clock next morning. • ~ . 1 - ;

: , POLICE COURT.— I [Before Dr. Giles, R.M.J | Wandering} Cow.Richard 'Davies was fined 10s and costs for-having allowed a cow to stray in the borough of Devonporfc. i / r Cruelty to a Horse.John' Crab b was charged with having, on the 14th September, 'cruelly ill-treated a horse by driving the animal while it was suffering from a sore shoulder. .Mr. E. Mahony appeared for the Society for Prevention of Cruelty to Animals,. and stated that the defendant was in the employment of Mr. Davies, another of whose employes was recently fined for a similar offence. On the day in question the Society's inspector, Mr. Redgate, saw-the defendant driving two horses in an omnibus, and on examining them found that one was suffering from a sore on the left shoulder. This pair ;of horses were those usually driven ,by Mr. Davies himself, but, on this particular day the unfortunate defendant happened to be driving them, and therefore became responsible, although the real culprit was Mr. Davies. The defendant, who admitted the charge, was fined 10s and costs. ° Destitute Persons. Martha Brown and Robert Brown, mother and eon, were charged with having failed to contribute towards the support of William Brown, her husband and his father. Mr. S. Hesketh, who appeared for the defence, said the case had already been adjourned to enable an arrangement to bo come to. The arrangement had not been definitely arrived at, but if an adjournment were granted to Saturday, so that another member of the family might be communicated with, no doubt the case would be settled. Adjournment granted accordingly.