AUCKLAND SUPREME COURT.

New Zealand Herald, Volume XLV, Issue 13765, 2 June 1908, Page 7

AUCKLAND SUPREME COURT.

U:, CIVIL SITTINGS. '■'■■ '■ ' The present civil sittings of the Supremo "" Court wore opened yesterday morning, before His Honor Mr. Justice Edwards. if-' QUESTION OF A LEASE. . ' An action was brought by Dorothy '•.; 'Emmie Morgan against Eva McConnell, for /■--' £250 damages, for alleged false representation. Mr. Burton appeared for plain--1 tiff, and Dr. Bamford (instructed by Mr. ;"-.'■ Battley) for defendant. Tho case was beard before a jury of four. 11l opening the case for plaintiff, Mr. Burton said the action was brought in re'V spect of a sale by defendant to plaintiff •'/ of her interests in a confectioner's shop, '".'.: hold under a lease, as stated in a sale v note, dated December 7 last. It was the •"■*•- question of this* lease that was the cause "v 0 £ the whole of the trouble. In addition, ' v Mrs- Morgan purchased the stock-in-trade, ;v the price covering all being £65. The : rental was to be £3 per week, the busi- : : ness to be a going concern. Plaintiff did not got possession of the premises until tho end of February or the beginning of March tilt year. But when Mrs. Mor- ''■■' gan put the property in the hands of an > agent to be sold, it was discovered that' ''- there was no lease. When the bargain '■''' was entered into and the money , paid, .. Mrs. McDonnell said that the lease could '--.. not then be produced, because her hus- . ■> band had possession of it, and he was ill, - and could not obtain his papers at the j : v time. At all events, when Mrs. Morgan ' desired to sell out, the lease could not be found. Without the lease, there was no real value in the business at all. In fact, . some of tho shop fittings belonged to the • landlord. In, the statement of defence, '", Mrs. McConnell said that it was understood that there was no lease at all, but evidence would be tendered to show tliat i; ! the lease had been mentioned, and that I- what', she (Mrs. MeConnell) had for sale . " was tho lease. ■v■•: Mrs. Morgan, the plaintiff, said defen?s'■'''." dant had told her that there was a three : ''""" and a-half years' lea.se to run to April, I " 1911, but when she came to investigate tho matter with Partridge and Co., the landlords, she was told there was no lease at all. She produced Mrs. McConnell in •" consequence,. but defendant insisted that there was a lease, and reiterated her previous statements. On {mother occasion, \. '■ when Mr. McConnell was approached re- <• garding the matter, he used some bad language, and said there was no ;'•'■■'■"'■ lease, asking witness at the same time if \, she thought bis wife was a fool to sell out, lease and everything else, for £65. :.'" •'" She estimated the value of the entire con- {■ tents at £25. but a tew pounds would ;■■ ' cover the value of the lollies and stock. She had boon offered £150 for the business & '. since, for the bare walls and fixtures. The "■'. alterations she had made to the premises "; had cost, her £35. Herbert Llewellyn Morgan gave corroborative evidence. Walter McKeiteh stated that Mrs. Mc- ; Connell had mentioned to him, in con- ":'.;;■■ versation, that she had sold the business '■<■ for £65. The lease was mentioned in con- ;..; nection with the sale. He did not think t- the stock was worth any more than £15 at tho outside. Frank Crespin said that he was present at a conversation . between .the parties, 'and he understood'that the purchase in- . cluded stock, fittings, and the lease, with, ,-■ ' he thought, three and a-half years to run. Mrs. MeConnell had made a 'statement to . ' ; that effect. ■ ' ... Ellen Partes and Albert Eagleton also gave evidence. ■ .'. * ' •'.'•.'. ' > Dr. Bamford submitted that there was no ""' 'deliberate intent to defraud, as was shown by the fact that a deed from the landlords, Partridge and Co., was in exist- • ence. The written contract of sale referred to a lease, it was true, but the term •' ■ lease mighJ not have been used strictly in the legal sense. -It was a significant fact ■'.that the person who drew up the document had not been called, and the term lease, ho contended, might very well have had reference to the letter from Partridge • ' and Co., which stated that "the rent of ,' the .shop would be £3 per. week, from May 14, 1905, until April 30, 1911. Mrs. McConnell would swear that at the time ■'■ the sale was made she showed Partridge ;; and Co. letter to Mrs. Morgan. His ;'. contention was that at the time of the [' ealo Mrs. Morgan knew what she was i buying, and that the sale was only int tended to give what rights were contained in Partridge and Co.'s letter. Defendant said that after the sale Mrs. I; Morgan accompanied her to Partridge and ' Co.'s, where they saw Mr. Hall, the ..' r manager. Witness introduced Mrs. Mor- • gan as the new tenant, and Mr. Hall then said he could only accept her as a A weekly tenant, at all "events, until Mr. ■"'■ •- Partridge returned from Home. Mrs. ft'.- Morgan paid a week's rent and -got a re- -. .. ceipt for it.- They were clearly given to understand then that there was no lease, V and only the written agreement referred *.' to. Mrs. Morgan did not complain or ;;; question thus. She told witness not to : '"v worry, and that it was to Partridge and i;* : Co. she would look for the lease. • She !'■ said " she had the dollars, and would fight for it." . * Cross-examined, witness staled that she ; remembered nothing being said about tho lease when MeKeiteh or Crespin were • " present. 1 Arthur John Hall, accountant for Partridge and Co., said that no surprise was expressed by Mrs. Morgan when lie stated '''.'•■ that he could only accept her as a weekly tenant. On the following Tuesday, however, Mrs. Morgan had expressed herself very dissatisfied with affairs. The case was not concluded when the . Court adjourned until this morning.