A FIRE AND ITS SEQUEL.

New Zealand Herald, Volume XLVIII, Issue 14689, 25 May 1911, Page 5

A FIRE AND ITS SEQUEL.

DEPOSIT, OF A PURCHASER.

COURT ORDERS A REFUND.

[BY telegraph.— correspondent.] Hamilton, Wednesday. A cask came before His Honor Mr. Justice Edwards at the Supreme Court this morning in which Wilfred Pae Warbrick, of Murupara., claimed from William Henry Bird, of Murupara, Alexander Miller, auctioneer, of Rotorua, find Andrew Brown, merchant, of Rotorua, the return of £130, the amount paid on a contract for the purchase of a boardinghouse at Murupara. Mr. Reed appeared for the claimant, Mr. Hampson representing Bird and Mr. Ziman appearing for Miller and Brown.

Mr. Reed in outlining his case said that William Henry Bird was a hoardinghoueekeeper, of Murupara, in the Rotorua district, and Miller and Brown were assignees in the estate. On August 18, 1910, the plaintiff agreed to purchase certain premises, a portion of tho estate, and paid to Miller £30. On September 12 the plaintiff paid a further sum of £100. On September 16, before the completion of the Rale, the premises were destroyed by fire. The plaintiff then demanded the return of his money, which tho defendants declined to pay. The premises referred to were a boardinghouce, store, and a post and telephone office, for which a salary of £20 a year was paid, and the total sum to be paid amounted to £400. Strange to say, said Mr. Reed, the deed contained a clause which provided that in the event of the premises being destroyed before tho completion of the purchase the doposit was to be returned.

The defence was that Miller and Brown were not assignees, as although a deed had been prepared authorising these men to manage the estate and dispose of it, the plaintiff did not execute this deed. They denied that the agreement put in was with Brown and Miller, and that the deposit of £30 was paid to Miller as the agent of Bird. The same thing applied to the £100 paid to Miller. They denied that the premises referred to were, before the completion of the sale, destroyed by tire except in this sense that no transfer or assignment had been executed in favour of the plaintiff at the time of the fire. They also eontended that the plaintiff entered into possession on September 12, 1910, and continued in possession until after the fire and actually carried on business.

His Honor said the evidence showed that Brown and Miller were without doubt assignees in the estate. That they received the money as such, and Bird was not entitled to receive a portion of it- Warbrick had endeavoured to obtain possession on September 12, but Bird had refused to hand over the premises, until the 19th inst. Had Warbrick entered into possession when he desired to things might have been different, but as it happened the place was destroyed before the day arranged for taking possession. They had sold something they could not hand over, and had no right to keep the plaintiff's money. .

His Honor gave judgment for the plaintiff, with costs according to scale.