Resident Magistrate's Court.

New Zealand Spectator and Cook's Strait Guardian, Volume XII, Issue 1288, 5 December 1857, Page 3

Resident Magistrate's Court.

Sittings under the extension of Jurisdiction Act, 1856. [Before Henry St. Hill, Esquire, Resident Magistrate.] Wilson against Taylor. This was an action to recover the sum of £lOO damages, for breach of a contract, or agreement, entered into between the parties on the 9th June, 1857, for the sale of the de fendunt’s interest in certain leasehold premises situate at the Hutt. Mr. King for Plaintiff- Air. Brandon for the defendant.

John Aiken Wilson, the plaintiff, sworn, is a farmer, living at the Hutt. Produces a memorandum, dated ,9‘h June, 1857, signed by the defendant, by which he, the defendant, agreed to sell to the plaintiff all his interest in the premises and land known as Hawkcshead, at the Hutt, for £350, the money to be paid in six weeks from that date. On or about the 17th July, plaintiff’s solicitor, Mr. King, wrote to defendant for particulars of his title to the -and and premises. An arrangement was subsequently made by letter dated 23rd July (produced) to extend the time for completion of the matter to the 3rd August. Meanwhile de fondant having asked the plaintiff whether he would pay for the pruning of the fruit trees, planting potatoes, and making such improvements as the season of the vear rendered necessary, plaintiff consented to do so. Subsequently, defendant declined completing his aereement with plaintiff, who having left the Wairarapa, where he had been living, was necessitated to take a house without any land to it at the Hutt, at a rental of £3 j.ss. per month. Plaintiffs object in wishing to take defendant s premises was that the 15 acres attached to it would enable him tograze his two horses and his cows. lias been compelled to put his horses out to graze at 2s. Gd a-week each, and to purchase his milk, butler, vegetables, poultry, &c., &c.

Cross-examined.—The principal object in leaving the Wairarapa was for the benefit of his health. Would have kept his cows, horses, pigs, and poultry on the premises had the defendant completed his agreement. Was prepared to pay the amount agreed upon (£350) at the time it was arranged that defendant should give up the prem’ses. The amount would have been in either Air. Loxlev’s or Mr. King’s hands for that purpose. The amount was never tendered to the defendant. Instructed Mr. King to pay defendant even as much as £4OO if he disputed that the amount agreed upon was only £350. Called upon his solicitor, Mr. King, on the 20th July. Saw his clerk and told him that defendant would probably be there on that day to complete his agreement. Had seen defendant that morning at the Hutt, and bad said to him, “ I suppose you are going into town to complete vour contract.” They were both at the van at that time. Saw defendant about three weeks or a month, or it might have been six weeksafterthis, when he asked him (plaintiff) if he had any objection to pay for the improvements he had been making ; told him he had no objection. Re-examined—Saw the defendant sometime in the month of September last, when he refused to give up the premises. This was after the defendant had agreed to pay for whatever improvements had been made subsequent to the date of the agreement.

John King— sworn. I am solicitor for the plaintiff; received instructions from him on the 16th or 17th July last to obtain defendant’s title to the premises in question ; wrote defendant accordingly the letter of the 17th July which has been produced ; saw the defendant he thinks on the 20th of that month, when he requested a fortnight’s time to give plaintiff possession ; defendant then stated that there was a sum of £5O due from him to Swainson’s executors for arrears which he wished plantiff to pay ; witness told him that he could say nothing on that point; wrote defendant the letter of the 23rd July after he had seen his client on the 21st; received no reply to that letter, but saw the defendant some day's after, who asked him if plaintiff would pay the additional £5O; told him to see the plaintiff himself thereon ; had no further communication with defendant after that time.

Cross-examined—Took no further steps to inquire into defendant's title, after Mr. Brandon had expressed his willingness to make an assignment direct from Swainson’s executors to plaintiff; defendant told witness that he would not give up possession unless the £5O was paid to Swainson’s Estate ; gave no notice to defendant that plaintiff’s money was lying idle; gave him no notice that he must give up possession of the premises ; would have been prepared to have paid the £350 on the 3rd of August if the defendant had been prepared with his title; made no demand of possession beyond what is contained in the letter of the 2.3 rd July. William Ttullcr, sworn—Am a farmer living at the Hutt; was present when an agreement was made between the plaintiff and defendant respecting the premises at the Hutt, formerly in the occupation of the late Mr. Swainson ; the sum to be paid was £350 free of all expenses; considered the sale a bona fide one ; believes plaintiff is residing at the Hutt; the house in which he lives has merely a small garden to it, : no cow or horse cculd be kept on the land ; the premises agreed to be sold bv the defendant has about 15 acres of land attached.

John Cudby corroborated the last witness’s evidence as to the agreement made between the plaintiff and the defendant.

Hugh Cleland testified to the plaintiff’ having rented a house from him at £3 15s. at the Hutt.

This closed the plaintiff' s case. William Taylor, sworn. fs defendant in this case ; lives at the Hutt; admit the memorandum of the 9th June, 1857 ; received the letter from Air. King of the 17th July; that was the first communication that he had had with plaintiff or his solicitor after the agreement was made ; went to town on the 20th July; told the plaintiff that if the money was ready to be paid, he was ready to give up possession of the premises; stated this to him in consequence of plaintiff having said that he bad heard that witness did not intend to let him have the premises ; saw Mr. King at his office between 2 and 3 o'clock on the afternoon of the 20th ; Air. King told him to go to plaintiffs at Ferrars’ Tavern ; saw him there ; was invited to have a glass ; while they were there, an altercation took place between plaintiff and Mr. Deighton ; those two fought for about half an hour ; this prevented plaintiff from accompanying him to Mr. King that day; did not go back to Mr. King’s office, but called twice on the following day without having seen him ; did not again see plaintiff for at least six weeks after the 20th ; saw Air. King on the Gth of August; asked him if plaintiff' had left a cheque tor the money ; he said he had not, but that witness had better see and write to him about the money; was prepared to give up possession on that day if the money had been reiuly to lie paid him ; saw the plaintiff at the Hutt on the 4th September; asked him when he should be prepared to complete his agree-

ment ; he replied that he was now provided, and that all he wanted was a paddock for his horse ; witness told him he was sorry he could not accommodate him with one ; never saw Mr. King after the third of August, nor received a line from him on the subjuct of the possession of the premises ; was always reiuly and willing to complete his agreement if the plaintiff had been prepared to pay him the money.

Cross-examined. Never saw Mr. King at all on the 20lh July ; might have said to him on the 20th that he was not prepared to give up possession for a fortnight ; came to Mr. King’s office on the 3rd August, and asked him if the money was ready ; swears distinctly that he never told Mr. King that unless the £5O was paid to Swainson’s Estate, he would not give up possession ; Air. King did not request him to write to Mr. Wilson about the £5O, but about the whole £350 ; docs not believe that anything at all was said that day about the £5O; spoke to Mr. Wilson on the 4th September asking him to give him a decided answer if he would complete his agreement; Air. Wilson never asked him to give up possession of the premises ; considers that he had made a good sale of the premises for £350, and would have been glad to have had the money. liobert Jillctt, sworn—Am a farmer and grazier at the Hutt; remember going to Mr. King’s office with the defendant about the beginning of last August ; beard him ask Mr. King if be were ready to pay him for his interest in the premises at the Hutt; Mr. King replied that he was not, and that he, the defendant, had better either see Mr. Wilson, or write to him ; understood defendant to say that he was ready to give up possession at anv time he was paid the purchase money.

Cross-examined.—The conversation took place at Mr. King’s office-door; was not aware that there was a dispute about an extra £5O ; understood the defendant to ask if the price agreed upon between him and Air. Wilson was ready to be paid him. Air. King contended that the defendant was bound by law to produce his title before the plaintiff cculd pay him ; that he had never done so, and had claimed an extra £5O, which was not in the agreement. He maintained that the plaintiff had suffered serious damage, an! he was confident that he was entitled to damages from the defendant’s breach of contract.

Air. Brandon, for the defendant, argued that the plaintiff had himself precluded the completion of the agreement, as it had been shewn that he was unprepared to pay the money at the period agreed upon. His client had been always ready to perform his part of the contract, and had attended at Air. King's office on the 20th July for that purpose. He contended that the plaintiff had made out no case.

The Resident Magistrate having commented on the evidence expressed his regret that neither party had availed themselves of the provisions of the Act by requiring a Jury to be summoned in a case where the amount sought to be recovered was so large. As, however, they had left the case entirely in his hands he should not shrink from the responsibility. He did not think that the plaintiff had made out a case for damages. There had been evidently breaches on both sides. He must be perfectly satisfied that the plaintiff had done all that the law required him to do—particularly as he had been all along acting under the advice of his solicitor—before he could give a verdict in his favor. Not being, therefore, satisfied on this point, he should declare a verdict for the defendant with costs. There were several other cases disposed of, under the Extension Act ; but as these were simply of accounts they were of no material interest.