RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 8755, 18 March 1890, Page 3 (Supplement)

RESIDENT MAGISTRATE'S COURT.

Monday, Mahcii 17. (Before Mr.E. H. Carew, R.M.)

Sydney George Parkes v. New Zealand Mortgage f,nd Investment Company, Limited.— (Resumed hearing.)— Claim £50, deposit paid by plaintiff iv counection with a contract which defendant was alleged to have failed to carry out. Mr Sim appeared for the plaintiff, and Mr Hosking for the defendant. —John Duncan Keberts deposed that he waited on the defeua'lll!; company with reference to the sale of a property, aud afteiwards saw plaintiff and forwai j<;d letters to the- company and to Parkes. A deposit of .£SO was paid on August 25. Witness had nothing to do with the payment of that, if the contract for Bale was not proceeded with. He saw Mr Cameron (of the defendant company) several times. It was atsitod that the company would not iict on the letter from Parkc.B, but: told him to set the money as soon as possible—To Mr Hosldng : Was acting as agent for Mr .Parkes iv trying to get » loan' of £50, He had incidentally mentioned that to fiir Burton, of the Standard Company, aixd had asked him to lend Parkes the money. He iiad given plaintiff notice that negotiations were CTsuplete regarding i.he sale of the property.—To Mr Sim: Mr Parkes was anxious to complete his contract, and the property was sold nt a sacrifice. —A. P. Barclays solicitor, gave evidence as to tho procedure adopted in the disposal of freehold property. In this case no deed of assignment was forwarded to tho vendors.—This was the defendant's case. —Mr Sim submitted that no special time was g fixed by the contract. The parties were, there- | fore, bound to complete the contract within a 8 reasonable time. Time waa not of the essence | of the contract, and could only be made bo I under certain circumstances by a proper notice. I Notice could only be given when tho party to I whom it wus given had been guilty of unreason- I able delay. The defendant tried to make time | the essence of tho contract by the notice of ICth [ September, but there had been no such delay f on the part of Mr Parkes as entitled tha com- | pany to give such notice. If they were entitled | to give notice, theu tho notice given by them ] was an utterly unreasonable one, nothing re- j ceived until the day on which plaintiff was required to complete. Mr Ps.rkes was periluofcly willing to complete the contract, but the company deprived him of the opportunity of (loiug so. The contract was repudiated, not by Mr Parkes, but by the company selling to another party on tho 27th September. The notice was waived by what was afterwards aaid by Mr Came-roll-r ._M Hosking contended that the plaintiff had no rit;Ui) to toi««r tho deposit, 'l'lio /V'lOsif. was rightly retained by the company, inasmuch 5 as Pirkes by his conduct evinced an intcution | to abandon tho contract, or lie would put it this a way—that the nets smri conduct of Mr Parkes * justified the defendants iv assuming that he j could not and would not carry out the contract, j l'rom tho nature of the property to ba disposed ; of—a leasehold public homo (Watson's)—it was ,' contemplated that there should be aa almost immediate completion of the contract, the!: terms, too, baiui*' cash. The whole teuor of tho .! evidence aod correspondence showed that Mr !. i'arkes was at. \io time üble to complete the con- ; tract.—Wru. Robert Cameron, manager of the ■ defendant company up to the end of Decem- 4 ber last, deposed that the sale of Watson's | Motel carai: before fee board of directors, who j instructed him to accept I'nrkcs' offer. Told f: I'arkes that if he bron^hr, bis cash it would be i accepted. Plaintiff never called upon him with j auy cash. Did not recollect saying to Mrßoborts j that he did not think the letter of September ! 10th was going to be acted on. The question 1 of waiving the notice never came before the j directors. The underst'mdiug amongst persons J dealing in lauds was'chat "terms cash" meant j payment as scon as the title and conveyance j from the vendor were made out. —To Mr Sim: There -was a notice served on the compauy by WinmiU's solicitors. Thought Mr Parkes was anxious to complete tho contract. He discussed the question of title several times, and witness understood he had some difficulty in cousequenco of the doubts raised about tho title. The property was sold to Mollison Brothers. They were in treaty before Parkes, but did not make auy distinct offer. Said he thought the deposit ouj;hfc to be returned to Mr Parkes, less the commission paid to Mi' Roberts (£3O). — Thomas Burton, an estate agent, remembered Mr R-.berts applying for a loan for Mr Parkes, J who wanted £1000. Said he would 3ee about it. If the title was good he was quite prepared to lend the money. Saw liis solicitor aiid Mr Roberts afterwards. Told the Intter then that he could not lend the money. Made no promise to Mr Parkes to lend the money. For the sale of property "terras cash" meant payment of the money as boou as tha conveyance of the property f'rnm the vendor was ready. Would hwe lent the money if he had been satisfied the title was good. Would stick to bi3 money while the question of titlo was being fought out among the lawyers. An indemnity was mentioned at one of the interviews, and witness approved of the names submitted. That arrangement never came to anything.—His Worship took time to consider judgment.