DEAL IN PROPERTIES.

New Zealand Herald, Volume LIII, Issue 16282, 15 July 1916, Page 9

DEAL IN PROPERTIES.

TWO AGREEMENTS SIGNED.

SALE OR EXCHANGE. The question of what constitutes an exchange of properties formed the subject of an interesting cross-examination of the plaintiff in a case, heard at the Supreme Court yesterday before His Honor Mr. Justice Hosking. The plaintiff. George William Ernest Fenton, a builder, of Auckland, brought an action against Cecil Norman Ramfil Mardon. a settler, of Auckland, for the specific performance of an agreement to purchase certain property. Mr. H. H. Ostler represented the plaintiff, and Mr. J. R. Reed, K.C.. with him Mr. M. G. McArthur, appeared for the defendant. In the plaintiff's statement of claim it was asserted that he entered into an agreement on April 26. 1915, to sell to tho defendant properties comprising a sisroomed house in Dominion Road, at the price of £925, less a mortgage of £213 ; jan adjoining section, for which the price j was £025, and a section at the corner of . -fake's Avenue and the New Edendale ; Road, for which/ the price was £150. The ! plaintiff now asked for the specific performance of the agreement and the pay- , mont of the purchase money. A sum of | £200 was also claimed in respect of the 1 defendant's failure to complete the agreement. An alternative claim for £501 for general damages was made. Defendant's Contention.

The defendant admitted that ha signed the agreement with the plaintiff, but stated that on the same day the plaintiff and he executed a further document which stated, i inter alia, "C. A. Mai don agrees to sell part of Section 22a, containing 47 acres and 6 acres, township sections, fronting Te Kauwhata Road and Mercer Road, for the sum of £932." The plaintiff and he agreed to exchange their respective properties. He was ready to complete the exchange, but the plaintiff had refused to do soThe plaintiff stated in his evidence that he entered into two agreements with Mardon on April 26, 1915. About a week after this Mardon had taken possession of his house, and had been in occupation since. Witness had not been paid any interest on the purchase money, nor had he received anything in respect of rent. Agreement to Exchange Denied. Cross-examined by Mr. Reed, witness stated that he had inspected Mardon's property. Mr. Reed: Was not an arrangement made between you and Mr. Mardon to I exchange your property for some of his ' swamp land ? I Witness: No. I His Honor: Did you at any time in the : course of the negotiations ask Mardon to i pay cash for your house ? ' Witness: No. I His Honor: Why not ?—Because I : thought he would buy mine and I would buy his. Mr. Reed: Did you not consider that by transferring vour property to Mr. Mardon you had alreadv paid for Mardon's property with your house? Yes, that is so. Plaintiff's Action Explained. Mr. Ostler proceeded to call evidence to show that the reason why the plaintiff had rescinded the contract to purchase the defendant's land was that he alleged the contract had been induced by misrepresentation by the defendant to the effect that the land purchased was not subject to floods. Mr. Reed objected that this evidence was not relevant, and a long argument ensued upon the point. His Honor eventually decided that such I evidence was not relevant at that stage. i but he thought it -was open to the plaintiff I to bring another action for damages. Legal Argument Postponed. Mr. Ostler then contended that it was not possible to bring any extrinsic evidence concerning the two agreements to show that the transaction was an exchange. Mr. Reed: I do not propose to call any evidence for the defence. I move for a j nonsuit, and submit that the evidence of the plaintiff shows that one agreement was dependent on the other. " x It was decided, in view of the large number of witnesses from the country waiting for the Court yi connection with ! another claim against the defendant, to I adjourn argument on the contentions of I counsel until the succeeding case is concluded.