RECOVERY OF DEPOSIT

Otago Daily Times, Issue 22630, 23 July 1935, Page 4

RECOVERY OF DEPOSIT

LAND AGENTS SUED A SUCCESSFUL CLAIM Judgment for the plaintiffs was given by Mr J. R. Bartholomew, S.M., in the Magistrate’s Court yesterday in the adjourned case in which William John Carley and his wife, Edna Beatrice Carlcy, proceeded against Land Sales, Ltd., * claiming the sum of £SO which had been paid to the defendants as deposit on a building deal, in addition to £5 for costs incurred in connection with the deal. The claim was made on the grounds that as the deal had fallen through the contract entered into between the plaintiffs and the defendants was not capable of performance by the latter. The magistrate held that the contract entered into between the parties was not a properly constituted agreement, and the plaintiffs were therefore entitled to recover their deposit. Mr W. P. Hartstonge appeared for the plaintiffs, and the defendants jvere represented by Mr C. L. Calvert. Evidence was given by Arthur Herbert Brown, a builder, of Mosgiel, who stated that in December last, at the request of'the defendants, he prepared plans for a house for the plaintiffs. The latter asked for certain alterations, and these were made to the plans. The cost, including subsidy, was_to be £790, witness’s price being £735 and the amount of the subsidy £55. The lastmentioned sum was to bo handed back to Land Sales, Ltd., when the job was done, as witness understood that was part of the commission. Some time later the plaintiff called on witness and asked who was getting the subsidy, but witness referred him to Land Sales, Ltd., and on a later occasion, when the plaintiff made the same inquiry, witness told | him to call on Mr Hartstonge, witness’s solicitor. About the same time witness saw Mr Francis, of Land Sales, Ltd., and told him he was finished with the contract, upon which the latter said, “ Don t tell Carley who is getting the subsidy.” —To Mr Calvert, witness said he was prepared at the time and while the conditions remained suitable to build the house for £735, which was a good puce. He decided not to build the house, however, because Carley became suspicious about not getting the subsidy. Accordingly. the contract was cancelled. He would not have anything more to do with the matter because he thought Carley was being done out of the subsidy. He was not aware that it had been specifically stated in the contract that Land Sales, Ltd., were to receive the subsidy. He would been prepared to go on with the building had Carlcy known and understood where his subsidy was going. He had never told Carley he was not getting a fair deal. It had been suggested by Mr Hartstonge that he should not go on with the contract. . , Evidence for the plaintiff was also given by John E. Mirams, solicitor, who told of conversations concerning the financing of the plaintiff’s contract to build. No definite arrangement had been come to. . T . Robert Cecil Reid, salesman for Land Sales, Ltd., said he was present when Carley signed the contract, drawn by Mr Francis, to build the house. The matter of subsidy was discussed, and Carley was informed that it would go to Land Sales, Ltd., although if it exceeded £SO anything over that sum would go to the plaintiff. The price of the section on which the house was to be built was £145 net. The section was purchased by Land Sales, Ltd., in their own name. It was arranged that Brown, the builder, should pay Land Sales, Ltd., their commission of £SO out of the first progress payment he received from the plaintiff.—To Mr Hartstonge, witness said he could not explain why the amount of the subsidy should be added to the builder’s price. He did not consider the commission excessive, since it had to be halved with Property Sellers, Ltd., through whose agency Carley had come to Land Sales, Ltd. Thomas Herbert Black, salesman for Property Sellers, Ltd., who first introduced the plaintiff to the defendants, said Mr Hartstonge had intended him he was not satisfied with the way in which the subsidy was being disposed of, and was going to apply to get the deposit back from Land Sales, Ltd. The magistrate, in giving judgment, said the most serious difficulty was whether there was any concluded agreement between the parties. In two points the agreement that had been drawn up was defective. It did not specify the amounts to be paid on first and second mortgage, which was important, and the terms and periods of the mortgages were not mentioned. In addition the plan of the house had never been finally approved by the plaintiff, as was provided for in the agreement. That being the position, there was never any concluded agreement, as the whole arrangement between the parties was too indefinite to constitute a binding agreement. The sale had fallen through and the plaintiff was entitled to recover the amount he had paid in deposit. Judgment would bo given for the amount claimed, £55, with costs (£7 9s).