LAND DEAL DISPUTE.

New Zealand Herald, Volume LX, Issue 18585, 18 December 1923, Page 10

LAND DEAL DISPUTE.

ORAL AGREEMENT CASE. V ' . ENFORCEMENT OF CONTRACT [bt telegraph.—own correspondent.] ' HAMILTON. Monday. A decision in favour of plaintiff was given ,by Mr. Justice Herdman in the Hamilton Supreme Court , to-day, ' in. the case in which ■ Thomas Francis Richards,' storekeeper, «f Cambridge (M?. Johnston), applied for a decree , ■ requiring specific. peformance of an oral agreement on the part of Benjamin O'Brien, farmer, of Morrinsville (Mr. Allen for the sale and purchase of a piece of . land near Morrinsville. The plaintiff claimed that, in July, 1922, he was the owner of seven acres of land, purchased from the natives,.-and situated adjacent to the defendant's farm, and, that, prior to a partitionorder <-of the plaintiff's interest in the Native Land Court, he agreed with the defendant to sell the land to the latter, on terms representing ' this total cost of the land to the plaintiff, together with an added five per cent., conditional upon Richards ; obtaining a. partition order of ; the land in , nuch a way that it; included < a piece of Hand particularly desired by . 0 Brien. Ihe plaintiff had this' done, and permitted defendant to enter • into possession on December 15, 1922, pending the completion iof the title. In. June last plaintiff wrote informing defendant that if the purchase money were not paid by - the end of , the month the ' deal wpuld be cancelled, , but the defendant, according to ; the plantitf's version, telephoned him on the following day, and said that a title could not yet be given, and that the ; purchase money would, be paid , when a,-, title could be given.% The transfer from the natives to Richards was eventually | registered 'on October 5, and .the defendant, on being called upon . for his purchase money, refused to complete, alleging" that, if a contrack had*been entered into between himself . and Richards, it was not in writing, and: that, if. an oral contract had been made, it had been rescinded in June by the plaintiff's notice. , ';i ' •> w After hearing evidence ' and argument, the judge stated that ; the plaintiff - had proved beyond doubt that an oral contract had.been entered toto, and that, the main i difficulty was whether there was sufficient part performance to exclude the provisions of 5 the* Statute of Frauds, -and whether the contract had been rescinded. :: The evidence as to (he negotiations ' between the parties since June last showed clearly that the rescission had been ?,waived-by consent, and as . the ■ defendant Jhad accepted possession tinder a. . letter written by the plaintiff in December, 1922, which referred to the extended purchase, the contract had been partly performed. ,The plaintiff was, therefore,- entitled to have the contract completed by .the defendant. A decree was accordingly made that the defendant should specifically perform the contract by accepting a, transfer and paying the purchase money. . Costs oh the middle' scale and witness* expenses and disbursements were allowed to plaintiff. ~