DUNEDIN S.M. COURT.

Otago Witness, Issue 3036, 22 May 1912, Page 36

DUNEDIN S.M. COURT.

Thursday, May 16. (Before Mr W. R. Haseiden, S.M.)

Judgment was given for plaintiffs in the following undefended oases: —D.I.C. v. G. F. Stevens (Inveroargill), claim 13s 2d, costs; Guthrie. Bowron, and Co. v. Arthur J. Dowling (Blenheim), claim £3 18s 9d, for goods (costs 10s); Petrie and Begg v. Peter M'Rorie (Clinton), claim £2 Rs sd. for goods (costs 12s); Mollisons (Ltd.) v. W. H. Baxter (North Canterbury), claim £4 5s 6d, for goods (costs 325). Catherine Finch v. Agnes Forsyth, or, in the alternative, A. Matheson and Co. — Claim £2O, paid by plaintiff as deposit on the purchase oi a property in Leith street. —Mr Wood appeared for plaintiff, and Mr Lang for defendant.—The evidence disclosed that the deposit was paid by plaintiff bo Matheson and Co. as agent for the vendor, Mrs Forsyth, who wanted £SOO cash for her property, whereas Mrs Finch wanted terms. The sale fell through, and Matheson and Co. retained the deposit, to be used afi a deposit on any other property plaintiff might purchase through the firm, and of which it submitted a number. —His Worship gave judgment as follows: —As between plaintiff and Matheson, I have no doubt about the case; as between plaintiff and Mrs Forsyth, it is a different thing. In my opinion Matheson got ■ into this matter in an irregular way. The property was not originally put into his hands for sale by Mrs Forsyth. He or his man saw the property advertised for sole. They went to rha owner under the guise of purchasers, in the manner well known among Land agents, and they worked round until they became agents for the vendor. Mr Matheson tells us that his instructions were to sell for £SOO cash. He met tho plaintiff, Mrs Finoh, and offered her the property for sale, and agreed, ostensibly as agent for Mrs Forsyth, to sell the property for £SOO sterling, le«3 the cost of draining the property; £2O to be paid on signing the agreement to purchase, and the balance to be arranged thus: £75 deposit, and the balance on mortgage at 5 per cent, for five years. I have no shadow of doubt whatever that that means that Mrs Forsyth was to take a mortgage for tho balance due for five years, at 5 per cent. I do not see how it could mean anything else.

Mrs Finch could object to even Mrs Forsyth saying: "Well, I can't take the mortgage myself, but I will get someone else to take it." When they stipulated for a certain rate per cent, and a term of years, it" was quite evident that it was Intended that the mortgage should be to Mrs Forsyth. Mrs Forsyth was within her rights, according to Mr Matheson's own evidence, when she repudiated his authority to sell on those terms. I think that what Matheson should have done under those circumstances would have been to admit that he had met with a difficulty—that he had made a mistake, —and he should have returned the deposit, with Mrs Forsyth's consent, to Mrs Finch. It is not right to take the deposit of anybody, especially of a woman, and hold it for a couple of yoa.rs, and put her to the expense of litigation in order to recover it. From whatever point of view one looks at this case, I cannot see that *Mrs Finch was to blame in any degree whatever, and she is erititlod as against Matheson to recover her money. I shall give judgment for the £2O for Mrs Finch against Matheson only, but I shall not allow Mrs Forsyth any costs. She did not repudiate Matheson's agency altogether and decidedly, and there will be no costs allowed to her. Judgment was entered for plaintiff against Matheson and Co. for £2O, with £3 12s costs.