SUPREME COURT.

Poverty Bay Herald, Volume XXXIII, Issue 10659, 12 May 1906, Page 3

SUPREME COURT.

CIVIL SITTINGS

His Honur Mr Justice Chapman took the civil business at 10 a.m. this morning.

BARKER v DICKSON

Frank Brayton Barker v Thomas James Dickson, claim for specific performance of sale of a property of 10^ acres at Kaiti.

Mr Stock, with Mr Lusk. appeared for plaintiff, and Mr W. L. itees, with Mr Saiusbury, for defendant. Mr Stock said the action was one for specific performance of contract m the cale of land at Haiti. Mis Dickson had an interest m the land, and Mr Dickson was authoifeed by her to sell. The property was put into the hands of the Intercolonial Land Agency Company for sale m February, 1904 the price being £2COO. In August, 1905, Mr DeLautour, of the Intercolonial Land Agency, told Mr Dickson that he ltad a purchaser at £2000. Mr Dickson agreed to take this clear, and said he would first have to take it out of the hands of a- Palmerston North agency. When told that the purchaser was Mr F. B. Barker, defendant expressed satisfaction. Evidence would be given to ohow that tiie property was withdrawn ftoin the Paimerston North agency, and that Mr DeLautour entered into a contract with Mr linker for, the sale of the property to him. The defence, Mr Stock understood, was a denial that Mr DeLautour AVfis authorised to sell, and Mr Dickson had stated that he had heard tlte property was worth nigro than £2000, and refused to sell. -Mr .Stock detailed tiie terms of the agieement to sell by Mr Dickson, and proceeded to call evidence. Cecil Bertrand DeLautour, general commission agent, carrying on the busi. i:es_ of the Intercolonial Land Agency, staled he knew Mr Dickson's property at Kaiti, on the banks ol the Waimatu nver. Defendant placed the property m his hands for sal* at the end of February, 1904. Mr Stock : For £2000. Mr Bees : No, let the offer be put m. His Honor read the paper signed by defendant, which offered the property for sale for £2000 cash, or, if the purchaser required terms, 25 per cent, cash, the balance on mortgage for a reasonable term Avithout reductions for commission. His Honor remarked that iv terms it avos an offer. It was addressed to anyone, and tlio purchaser was indeterminate. Witness stated that after this conversation he endeavored to find a purchaser, and found one, Mr Barker, iv August, 1905. Ho had not been pushing it during the eighteen moutlis, tor it was a class of property that did not suit everybody. Defendant never withdrew the property from witness. He saw defendant m August, 1905, and defendant said he was still willing to sell the property for £2000, clear of commission, but belore this he would have to write to Palnieiston North withdrawing the property lrom Capt. Fleece's hands., which would take some time, also that he would haA'e to gi%e notice to men who were grazing hoists there. Mr Dickson further said there avus an incomplete title to pare ot tlte land. Avhich Avould have to be taken ! over. Witness told Mr Dickson he had j a puicliaser. Within a few weeks witness < sold the property to Mr F. B. Barker, I ami he executed the agieement on behalf I of Mr Dickson, and ie avos also signed by i Mr Barker. The agreement was signed t on a Saturday, and on the Monday he sent a wire to Mr Dickson, who Avas at Te 1 Aroha, telling him of the sale. The re- t ply sent by defendant read : "10f acres, c Cannot complete until I withdraw, as 1 told you. Will be home Sunday." De- t feudant when he returned to Gisborne v came to Avitness' office and said he was 1 pleased to hear Mr Barker had got it. f He said he would Avrite to Capt. Preece at c Palmerston North, and it would take a 3 week to get a reply that notice had been t received. Mr Dickson said he was glad I Mr Barker had got- it, as he would hoc s cut it up, remarking that it would make v a beautiful home, aud he had intended d to make one there himself. In a little t over a week defendant came back, and said, "Now I have Avithdrawnit, I am t ready to deal. I want £2500 for it. 1 -' have* been told iv the street that if I cut & it up 1 will get about £3500." Witness c told him thac he had already sold it, and i< defendaut then disputed Avitness' autho- V 1 litv to 6ell it. This was the first m- b ti iiiation that Avitness kid that defendant tl repudiated iP. Defendant asked him to h go and see Mr Vincent Barker, which luev did. Defendant repudiated witness' h authority, and said it was a lot of rub- b bish, and that he had never told witness he Avould sell it for £2000, but had q informed Avitness that ho would take £200 " an acre for it. Mr Barker told defendant that he Avould have to stick to the agree- n nicnt. Mr Barker was acting for his bro- c titer, the purchaser. "•■ By Mr Rees : Witness believed that it d w as" Mr Bloare, his clerk, who got the offer to sell for £2000 m writing from Mr ci Dickson. Witness had instructed Mr -"i Bloare to get all the .properties m the ni books authorised iv writing. Mr Rich- ;<l aids had got the offer from Mr Dickson '1 vtrbally. Witness had spoken to Mr Dickson about other properties. The e> agreement produced was m Mr Vincent b Barker's liaudAvriting. Witness, Avhen he- k saw Mr F. Barker, told him that the vi property Avas offering and he ought to X take it. °'

Mr Rees : You were aware that properties on Kaiti were goiug up m value. Witness: I tliiuk they were steadily on the rise. Mr Barker had to pay you conunisbion?—Yes, Mr Dickson wanted Ins £2000 clear. Did you ag_rec upon the amount of cuinun_rion?— Yes. How much?— l told him -I would take £25. Have you been paid the commission?— No. nos'vet. 1 have not completed the deal. . " Did Mr V. Barker ask you for your authority?— No, he did not. Do you mean to say tliat Mr Barker obtained your signature to the agreement without seeing your offer?— No, most purchasers do not. Can you mention any other cases? — I think 1 could look up a good few. His Honor : Don't you usually make up the agreements yourselves? — Yes, sometimes, but for largo sales we go to solicitors. Most of tne purcluiseis insist on going to their solicitors befoiu they do anything. "Mr Rees: Had you any conversation with Mr V. Barker about yum- authorit v?— No. 'Or with Mr F. Barker?— No. Did you ask Mr Dickson lor a written authority to sell, to sign his name to the Kile note.— No, because I considered my authority sufficient. Immediately prior to tins agreement did you not "see this property advertised for sale by auction by Williams and Kettle?—Ye^! I believe it was advertised. His Honor: That would be between Augubt and October 28th? Mr Rees : Was it not to be sold on the 28th? Witness : I believe it avos on the 28th, but I knew they had no authority to .ell. How do you know. Did you enquire yourself whether they luid an authority from Mr Dickson to sell? By Mr Rees: Witness did not mention to >Ir V. Barker that the property was advertised for sale by Williams and Ket. tie. Ie was not by witness' instructions that enquiries were* made of Williams and Keltic 06 to their authority to sell. Wlio told you that thcr had no authority to sell?— I heard ia m two or three plates. It was only street talk. Wlio was it? Was it not Avith Mr Vincent Barker 'that you were talking about the property about that time? — Yes, but not about Williams and Kettle. Who avus it then that told you that Williams and Kettle hud no authority to sell? — I do not know. It Avas general tii lk, as there Avere plenty of enquiries. After a little consideration Avitness said lie thought that it was the head clerk iv Mr Blair's office, who, talking it over-with Mr Hill, witness' partner, said Williams and Kettle had no instructions to sell. Witness did not tell Mr V. Barker that the property was withdrawn hum sale becausc-there were uo conditions. Tho property had been advertised by other firms as Arell a« Williams and Kettle. Witness asked Mr Dickson the lowest price he AVould take for it cash, and defendant did not say the lowest he Avould take was £200 per acre. Witness Avab alone Avith Mr Dickson Avhcn defendant, returned from Te Aroha, and when the conversation referred to took place. At the interview- with Mr V. Barker Mr Dickson said, "You luive got. no agreement m writing, from me," meaning that Avitiu-ss had no authority to sell. Mr Jtee.s: On what do you base, your authority to sign tne agreement for Mr Dickson? Witness: When a mau authorises me to sell a property I consider I am entitled to sign. Do you base it on the offer m writing?—*! consider tho verbal authority avus sufficient. What authority did lie give you when you met on the bridge, when the August 'conversation took place?— He told me- his price Avas £2000 clear. ' Did he not tell you the property Avas m the hands of Curtain Preece?— Yes, he said Captain Preece was an old friend and tliat avus avliv he hud given it to him. " * . Henry Ewart Hill, partner Avith tho previous witness m the 1.L.A.. stated tint he remembered Dickwii calling on Mr DeLautour. He heard the conversation Avhich ensued iv the office. They both came out to tho door, and Dickson m'kl he was plcawd to hear that Barker ltad bought the place, as it would mike a nice place for a home. He further said that immediately he Avithdrew it from the agent iv Palmerston North he would bo able £o complete the matter. By Mr Rees: Witness- avus quite certain as to the Avords. He did not say he was glad Barker had got the laud beeau>e it would make a fine place cut up. Witness did not make any allusion oh to the authority William*; and Kettle had to sell, but witness did go to Mr Blair's gfficv to get Mr Dickson's addrue. Mr

Met. the clerk there, asked what he want t'd the address for, and witness wiid tin 1.1 i.A. liiid sold Mr Dickson's property Mr Hei then asked, what price had ltei'i obtained, and witness replied £2000. Tlu clerk then asked was ie clear of com litissioii. Witness .said it was, and thai was the amount Mr Dickson wanted The clerk then gave witness the addicts This occurred on the day the sale tool place, between 10.50 and noon. Mr De Lautour told witness r-he property was sold on that day. and it was before hi went to Mr Blair's. He could not sa.v whether this was the day Williams anil Kettle had advertised the property foi •sale. " By his Honor: Auction sales are usually held m Gisborne from 11 o'clock onwards. By Mr Finn : Witness did not tell Mr DeLautour that Mr Hei had told hint that Williams and Kettle had no authority to sell. Mr DeLautour told witness m the ofiite that the property was sold, and •witness knew it was m his hands for sale at £2000. He told hint at the time the price was £2000. He told witness about half an hour after the sale was effected, and that, he was going away to Messrs DeLautour, Barker, and Stock's to get the document- drawn up. He a.sked Avitness to go to Mr Blair's address, but did not know at that time that Mr Blair was Mr Dickson s solicitor. Ho did not say anything to .Mr Hei about conditions of sale. Vincent Barker, solicitor, stated that he knew the property, the subject of this action. His brut Iter was enquiring for a property of this nature. Witness interviewed Mr C. B. DeLautour on the subject, and he suggested Mr Dickson's and other properties he- had for sale. Witnos saw the advertisement of Messrs Williams and Kettle a little later, so he went to see them. He interviewed Mr Wyllie. and Mr Kennedy and Mr Davis were present. Witness asked to sec the conditions of sale, as a client of his was a probable purchaser. They replied they had no particulars whatever, but they would see Mr Blair, Mr Dickson's solicitor, as they were afraid they had not .sufficient authority to submit the property for sale. Later they informed him that they could not do anything. That was upon the morning of the auction sale. He willed tit their office about 9.30 or 10. Witness was not present at the auction sale. Wittieta* prepared the agreement about 3.30. Plaintiff and Mr C. B. DeLautour came into the office and asked toTia-ve. ashort agreement of sale drawn up. Witness said as the consideration was £2000. ami as Mr DeLautour was putting £25 commission on top of that, he thought the consideration should be set-down at £2025. Mr DeLautour did not' like the suggestion, and at Mr DeLautouv's request wituevtj put it down at £20CO. Later Mr DeLautour informed witness ihat he bad received a wire from Mr Dickson staring that he could not complete the sale, and had withdrawn it front the Palmeistun agents. Witness read the entry m his diary as to an interview which took place with defendant. By Mr Rees : Witness knew it year ago that Mr DeLautour liad defendant's property for sale. At the date- of the sale whites,-, did not know of the defect m the title. Mr DeLautour, senior, might have given an opinion on it. Witness heard of the sale of the property to Mr F. Barker after he had seen Williams and Kct-

tie on^ the day of the auction sale. Witness did not ask to see Mr C. B. DeLau. tour's authority to sign the agreement. Mr Rees : Did you not ask m any wayhow Mr DeLautour got defendant's authority and signed as his agent? — No, 1 did not. Mr Itees moved for a nonsuit, first, that there was no authority given, either verbally or m Avritiiur. to Mr C. B. DeLautour to sell as agent by Mr Dickson, if Mr V. Barker ltad Tseen the written offer he would not have allowed the sale. Mr Rets had asked Mr DeLautour three times if anything luidbeeu 6aid by Mr Dickson on tho bridge that could be construed into an authority to sell, and there was not a Avoid of Mr Del*iutourV evidence to show that lliero was any authority given by Mr Dickson to sell. His' Honor : I suppose that conversation had some reference to Avhat might be termed a spent authority. It- cannot be said that that is the authority, for it could liardly last as long as that, taking into consideration the fact of Preece and Williams and Kettle being on the scene, but there may be a conversation as to that and reviving it. Mr DeLautour said his authority avus verbal. Mr Rees :* 1- asked Mr DeLautour had he referred to this written offer on the bridge. His Honor : No doubt- there was a question of some antecedent matter iv the minds of the parties'. Mr Rees : Even if there was, there was no authority to sell. There must be some evidence of* tlie property being offered to Mr DeLautour to sell, or to find a purchaser.

His Honor : There were antecedent dis. cuss-ions. Then there was the discussion

.on the bridge. Then there Mas what might bo termed an interpretation of this afterwards, when Dickson returned from Te Aroha. Mr Rees submitted that there was no evidence that could be offered- to a jury, but, his Honor dissenting, lie proceeded to open live defence. The property avus i'M»iug m value, and put m Williams and Kettle's hands for .sale at auction, but owing to defendant's solicitor, Mr Blair, being away, it Avas withdrawn from sale owing to* uo conditions of sale being drawn up. Mr Rtes submitted that there was- no relationship of principal and agent as between Mr Dickson and Mr DeLautour. The latter was really the agent of Mr Barker, wlio was seeking a property. Thomas James Dickson, defendant, stated that he remembered writing the paper produced 'at .the request of MiRichards, formerly a clerk m Mr C. I>. DcLtutom's otlii.c. Witness never saw

Mr DeLautour about the paper, but the first time Avitness had v conversation with Mr DeLautour iv reference to the sale of the property was about August lust. Mr DeLautour asked witness what he would ttike for the property. Witness told him the. area was 10? acres, bounded by* three roads and a river, and he made him the oiler at £200 iter acre. One of the sections he had an imperfect title to, explaining its nature, and telling him that the hind was iv Captain Brucc's hands at Fulnierstou North, and that he would do nothing with it until it was withdrawn lioni him. Witness never authorised Mr C. B. DeLautoiv to sell the land, but simply quoted him a price. He did not authorise Mr DeLautour to find witness v purchaser. Prior to going to Te Aroha, witness saw Mr Kennedy, of Messrs Williams and Kettle, and* he asked him to include his (witness) land m his sale. He asked witness who his solicitor was and to get conditions drawn up. Witness went to Mr Blair's Office, but his clerk told him he h:id gone away. Next day he Aveiit to see Mr Kennedy, bu: he, too, had left . town. Then witness left by the steamer also. The day before' the sale witness instructed the property to be withdrawn, as there were no conditions drawn wp. He produced a telegram received from Mr C. B. DeLautour when at Te Aroha, .staling that the land* was sold for £2000, whereupon witness replied that he* could notcomplete it. The first time witness heaid that Mr DeLautour had signed an agreement as his (witness's) agent was m Mr V. Barker's office. Witness ltad no intention of giving the property to Mr DeLautour until he had got a reply from Captain Preece. On his retail n lrom Te Arolra he saw Mi- DeLautour the following day. Witness told him that he could not or* would not 6ell the hind until he had withdrawn it from Captain Pretco. Mr DeLautour replied he .had sold it to Mr Barker. Witness .said he was pleased to hear- that a person like Mr Barker would buy it, as ho purposed building there himself, and had he been able to have got one of the sections at the time he got his first property his residence Avould Ikivc been' built there. \Vitne:s told him he would not do anything- with it until the property was withdrawn. He wanted witness to wire to Captain Preece and withdraw it. but witness said

he Avould write. He igot a note from Captain Preece acknowledging tin- withdrawal. Witness wont to Mr DeLautour again and told him he had received Captain Preecc's letter, and that he was then prepared to deal with him, and his price was £2700. The properly hud gone up considerably m value during those few months. He asked wituesto go and see Mr V. Barker, and when tltcy got abreast of Williams and Kettle's he a-sked witness to go alone, as he Avanted to go somewhere else. Witness persuaded him to accompany him. He told Mr Barker that- having i'eceiA-ed the letter from Captain Preece, he was piepared to deal, and his. offer Avas £2700. He asked

if he had not quoted the property at £2000. Witness said lie hud m the previous year. He told him he had invited the property to Mr DeLautour at £2CO per acre, 10| acres. The latter said he

hud sold it to Mr Barker. * Witness asked him for his agrecmeut to sell, and he held up a document. He asked Avitness to show him it _ and Ids signature. He would ivA let witness *-ec the 'document. He taxed Mr DeLautour about the conversation on the bridge as to the price being J3200 per acre, and the latter said ho could not 'remember it, and thought the* area was 10 acres. Witness told him he could write to Captain Preece, or that ho could make inquiries from Mr Kennedy, of Williams and Kettle. Tim ended tlte interview. Witness declined to sign the transfer produced by Mr Rees. Mr Rees explained that- the transfer omitted one section, and tlie % acre was ' omitted. . Mr Lusk contended that it was not allowable to wit m this document. Mr Rees then read tho covering letter. Mr Stock explained that tho section m particular avus omitted because tlie title was faulty. His Honor asid he did not tlduk. the document had much importance one avuv or the otlier. By Mr Lusk : Witness had known Mr DeLautour, senior,. for many year-,, and' some of Ms family. He knew that Mr C. B. DeLautour was carrying on business as a.' land agent at the time that Mr Richards- obtained the document. He

- knew the document was procured for Mr c DeLautour. He thought that it was juM '■ g' v ing particulars of the property and n the price lie wanted. 0| His Honor: Had a sale been effect td - ; after the giving of the document it would t go a long way to substantiate the .vile. . but it would he far 100 late cighlcrii i. mom lis after it- was given. The lomaink ing value of the. document was m connect ion with the oilier evidence, s | Mr Lusk: That is all 1 want to make t! of it. v j Continuing, witness said Mr DeLmlour. 1 ! m Ihe conversation on the bridge, did r not say he could place the property for wituen's. Witness said ho would lake J £200 per acre, clear of all charges, but c ho would do nothing until he withdrew it ftont Captain Preece. r Mr Lusk : Why did you tell him you i wanted it devoid of all costs? — Because • I wanted £200 ncr acre for it. i j You recognised you were speaking to I a land agent, and that he would claim ; his commission from von? — Yes. : And it was to avoid your paying it tit t Mr DeLautour that you made Hint stipu. . latioit?— Yes, I had done it- with other > agents. You told him it was m C-tptain Preece'* ■ hands for sale?— Yes. I told him I would 1 not do i'ltythiii'g until I got a reply from i Captain Preece. ; : 'Captain Preece was simply acting as an agent? — Y'e.s. j His Honor: But he said previously 1 Captain Preece was a personal friend of 1 . hLs. Why should you not do anything with , it until you liad* consulted Captain Preece? | — Because it was m his hands, and 1 , thought it proper. ; What was there to prevent you selling it yourself?— None whatever, but 1 would j not have signed the conveyance until it j was withdrawn. I told him that all j along. • Do you remember telling Mr DeLautour on the bridge that you would not wire to .Captain Preece, but write him?— l do not, and did not. Mr DcLauioiir's statement as to tl'js conversation was positively iiicmreci, also what he said about the' wire was an error. After further hearing judgment avt.s reserved. IX CHAMBERS. In the matter of the estate of George Bruce, deceased, further niotioin for direction as to Avhom the summons shall be s?rved upon, an order wax made as moved, service to be on adult defendants, and ou the guardian ad litem of infants. In tho same, an order was made settling ' tin? aportionnieitt of the rent due from property leased to A. R. Watson, on the basis of Mr John Clark's affidavit, costs of all parties to be settled by the Regis-- ! trar and counsel, two-thirds by estate ; and oiio-lhird by Mis Bruce.