SUPREME COURT

New Zealand Times, Volume XXXII, Issue 7078, 16 March 1910, Page 12

SUPREME COURT

TUESDAY, MARCH 15. (Before his Honor the Chief Justice.) CLAIM FOB SPECIFIC PERFORM-' • ANCE. A nroperty in Marlborough formed the basis of an"-action for the specific performance of an ■ agreement oisale; plaintiff being Thomas Morland, farmer, of Rakaia, and the defendants Frederick Hales, .Benjamin Coleman. James Brownlie, ', John Oliver and Thomas Wilson, gentlemen, of Wellington. Edward , Bomervillo, _. sheepfarmer, of South-bridge, was joined as a third party. , _„,.,-, , Mr G. Harper, \ of Clmstchurch, with him Mr T. Young, appeared for plaintiff; Mr C. P.' Skerrett, K. 0., with him Mr H. F. O'Leary, instructed by Mr. J. J. McGrath *<?r the and Mrl.'.W: Stringer, KC, of Christclmrch (with him' Mr P Levi) for Edward Somcrville. Defendants we're the. owners of property at Marlborough situated in' tho Wairau Valley and known as Bush Hill. It comprised 18,800 . acres and was stocked. On November Bth, 1909, defendants agreed to sell the property , and stock to plaintiff for £37,600. On November 18tli plaintiff in pursuance of tho agreement paid ■ a de|>osit of £SOO on tho property. Before the expiration of the ton days' option from November 'Bth defendants, it was alleged, without tho knowledge of plaintiff,' entered into an agreement with E. Somcrville to sell the property and stock to him and repudiated the agree, ment with plaintiff. ' He had' tendered to defendants £11,500, to be paid within one month, and applied to defendants specifically, to perform tho agreement. The sum had been refused by defendants, who still declined to porforin tho agreement. Plaintiff alleged that lie was still ready and will- • ing specifically to perform the agreement and had notified defendants to that effect. H'o desired the Court to .order defendants specifically to perform the agreement and to place him in full possession of tho property and .stock. The defence was _ that no binding contract had been entered into which ■noiild prevent a. withdrawal of tho offer. Defendants alleged that prior to any acceptance by plaintiff of th© offer they withdrew tho offer, as, they eon.tended, they wero entitled to do, and sold the property to Somerville. They alleged that before plaintiff accepted tho offer they had, to tho knowledge, of plaintiff, sold the property to Somerville, thereby cancelling and rescinding tho offer. Defendants further, alluged that before they had sold tho property to Somervdll© plaintiff, either ,by himself or his agent, had definitely signified to defendants that he did not intend to accept the offer. They denied tho repudiation- of any agreement with plaintiff and said . they wero desirous of completing whichever contract for sale should be found by the Court to be binding upon thorn. The tendering of £11.500 by plaintiff was admitted, but defendants denied that it was tendered -within the time set out. in .the agreement. After hearing several witnesses tho Court rose until this morning to tak» further evidence.