MAGISTRATE'S COURT.

New Zealand Herald, Volume L, Issue 15372, 6 August 1913, Page 7

MAGISTRATE'S COURT.

TROUBLE OVER MORTGAGE. BUILDER CLAIMS DAMAGES. The Magistrate's Court sat yesterday to deal with civil business. A builder and contractor, John McCallura, of Remuera (Mr. M. D. Mahoney) claimed from Charlotte Jane Leek and Christopher Leek, of Onehunga, (Mr. Mow Jem) the sum of £75 as damages for the alleged failure of defendants to advance a sum of £500 as agreed. The statement of claim set forth that about May 1, 1913, the plaintiff agreed with Christopher Leek for an advance of the sum of £500, with interest at the rate of 6 per cent., to be secured by a mortgage of freehold property. The plaintiff duly executed the mortgage, but the defendants refused to make the advance. By reason of the refusal the plaintiff, it was' alleged, suffered damage to'his credit, business, and reputation, and had been put to expense, and in satisfaction thereof he claimed the sum of £75. Supplementing the statement of claim the plaintiff, in evidence, stated that Leek had agreed, in an interview on April 21, at the Wovkingmen's Club, to lend the £500, and subsequently tire parties had gone to Leek's solicitors, Messrs. Neumegen and Mowlem, who said they would prepare the mortgage with as little delay as possible. The witness stated that he had signed the mortgage although the money had not been forthcoming, and subsequently had received from Messrs. Neumegen and Mowlem an account for £11 4s 6d. including £5 for procuration fee. This fee of £5 he had objected to, as he considered that the solicitors had had nothing to do with the procuration of the money. He had formally tendered £6 4s 6d in cash, but the offer had not been considered. Subsequently the firm had wanted him to pay the account, and sign a statement to the effect that he had perused the items of'the account, and found everything in order, and was quite agreeable to pay the amount. This he had refused to do. and Mr. Neumegen had said that the £500 would not be handed over until the paper was signed. Negotiations had followed, but without result, and eventually witness had issued a , writ against the firm for the payment of the £500. together with £75 damages. Two and a-half months' later he had managed to raise £475 at 6£- per cent, from another source. Cross-examined, the witness denied that Mr. Neumegen had to be satisfied as to the security before the money was handed over. He also denied that it had been arranged that if Mr. Neumegen had to inspect the property a procuration fee would be payable. The witness admitted that he had told Leek a week ago that he would be prepared to drop the present action and the Supreme Court action in connection with the writ issued against Neumegen and Mowlem if both parties , paid their own costs'. Mr. Mowlem asked for a nonsuit on the 1 ground thai his clients had signed nothing, and that there was nothing in writing to satisfy the Statute of Frauds. Further, he contended that there had been no pari performance of the transaction on the part of plaintiff. The mortgage signed by plaintiff, he contended, was not part execution, as it- was inoperative pending further arrangements. Mr. Mahoney submitted that the™ signing of the mortgage by plaintiff constituted part performance, and further pointed out that the mortgage was now held by defendants' solicitors. Mr. E. C. Cutten, S.M., reserved his decision on the nonsuit point. COOK'S TROUBLES. A cook named John MacKenzie (Mr. Burton) sued John Harrison, storekeeper, at Whangape, (Mr. Goulding) for £50 as general damages alleged to have been suffered owing to misrepresentations made when defendant employed plaintiff to. run a cook-house and boardinghouse at Whangape. In addition plaintiff claimed j £17 10s as wages., alleged to be due for I work done in renovating the premises. ! Defendant counter-claimed for £7, rent ! alleged to be due. John MacKenzie, plaintiff, stated that in October last he had seen defendant, who. he had learned, wanted a cook. Defendant, however, had • stated that he wanted a married couple, and a day or two later had advertised as follows :— " M.C. wanted to take over mill cookhouse, 10 to 15 boarders; rent only required." Plaintiff hail seen the advertisement and at once had had an interview with a young lady, who had agreed to marry him if he could get the position. Accordingly he bad gone to Harrison again, had explained the position, and had been engaged forthwith. Harrison had stated that the cookhouse was ready for use and that there would be 14 or 16 permanent boarders. Plaintiff was to pay 10s per week and was to secure- all his goods from defendant's Whangape store at 10 per cent, over Auckland prices. He. had left without his future bride for Whangape, his idsa being to inspect the place and set things going before sending for the young lady. Upon his arrival at Whangape he had gone to what had been pointed out to him as the boardinghouse. and had been greatly disappointed, for, far from being a going concern, it was uninhabited except by rats. Defendant had agreed that plaintiff should repair the place on wages and should obtain all his material for the purpose from defendant. Defendant, in evidence, contended that ho had made the position quite clear to MacKenzie, having explained that the 15 prospective boarders were millhands, who would require only their meals. He had not known, when engaging plaintiff, that the. cookhouse was in such a bad state of repair as it had proved to be, but when he discovered the position he had been prepared to allow plaintiff about £6 for the work of repair done. The magistrate', Mr. C. C. Kettle, S.M., persuaded the parties to agree to a settlement. Plaintiff was allowed in all £17 10s. made up of £7 10s for the work of repairing the house and £10 for personal loss incurred. Harrison, on the other hand. was allowed £8 17s 6d, made up of £5 10s for rent and £3 7s 6d for goods supplied, leaving a balance of £8 12s 6d in favour of MacKenzie. UNDEFENDED CASES. Judgment by default was given for plaintiffs in the following cases :—Olive Slav McConachie v. Alexander Wynd (Auckland), £3 Is; Howard Charles Abbott v. IT. J. Ingle (Dcvonport), £4 15s; Thomas Shaw v. John D. McDonald (Auckland), £22 17s Id; McNab and Mason v. D. A. Ross (Kingsland), £7 ss; Joseph D. Roberts v. H. R. Ayton (Dcvonport). £24 3s Id; London Warehousemen, Limited, v. Bert. Marshall (Archhill). £7 2s 6d ; Town and Country Life, Limited, v. Stanley E. Read (Wanganui). £1 10s Town and Country Life, Limited, v. George E. Bailev (Christchurch), £1 10.3; William I). M. Glaister v. Mary O'Grady (Auckland), £3 la 7d ; Jamas H. Wood v. T. Marclibank (Newton), £2 8s Id; A. W. Page v. W. Love (Auckland). £3 4s 2d: W. Gunson and Co. v. W. S. King (Ngaruawahia), £58 3s; Auckland Steam Laundry Company, Limited, v. K. Wheeler (Grey Lynn), 10s 4d; T. and S. Morrin, Limited v. W. Barker (Auckland), 7s 9d; T.' an 3S. Morrin, Limited v. N. P. Lusk (To Kuiti), 13s 6d ; T. and S. Morrin, Limited, v. D. Morrow (Waihi), £10 6s 3d : T. and S. Morrin, Limited, v. J. G. Kerr (Opotiki), £8 9s 4d ; J. Roberts and Sons v. John Hobfon (Auckland), 8s 6d; Mary McClymont v. Charles Cunningham (Auckland), £2 13s 4d ; Gibson and Clifford v. E. Davies (Auckland), £1 10s; S. W. Cope v. Jane Bartlett (Whangarei). £13 4s; R. 0. Robinson v. A. J. "Coleman (Auckland), £3 12s 6d ; J. D. Roberts v. J. Vernon Critchfield (Invercargill), £9 9 3; John Gorper v. B. Bronkhorse Wellington). £13 lis 8d ; Norman Simeon v. B. Bronkhorst (Wellington), £5 4s 6d; Len. S. Kelly v. W. A. Patterson (Taumarunui). £2 15s; R. J. Hill v, George Martin (Thames), £1 Si. * "