A LAND SPECULATION.

Poverty Bay Herald, Volume XLVIII, Issue 15763, 2 March 1922, Page 8

A LAND SPECULATION.

AN INTKLiKSTI Mi CLAIM. PURCHASE OF 1*l! OPERTY FOR SUBDIVISION. The circumstances ot a property deal dating back to 1912 were ventilated in ihe Magistrate’s Court yesterday afternoon before. Mr .1. S. Barton, S.M. Waller Stuart Black and Frederick Bate man Palairet proceeded against James Hubert Kirk, solicitor, claiming £2l 9s. moneys said to have been paid by plaintiffs for andi on behalf of defendant in respect of an alleged partnership between the parties in respect to a block of land in Bussell Street.

Mr L. T. Barnard' appeared lor plain tiffs and Mr F. W. Nolan for defendant

Mr Barnard explained that in 1912 defendant, who was a close personal friend of \V. S. Black, suggested a- partnership for the purchase of a property, for subdivision. Black found out a suitable property and recommended it to defendant. A third party was then secured 1 in the person of F. B. Pnlairet. Defendant had adopted a peculiar device with regard to the transfer, by taking it out in the names of Black and Palairet only. Under this defendant escaped-' a liability under a mortgage, but lie explained that he had adopted this procedure because, as he was solicitor for the owner of thb property, he did not want to disclose that he was in the partnership, Some time after 1912 defendant secured a transfer from the other two, making him owner of one-third ol the property. Later, without discussion with the partners, defendant sold his share to- Charles Buseke, arid the partners.objected. Before and alter the sale defendant- was asked for his share of certain outgoings, in connection, with the property, and lie paid £lB. He told them to collect the balance, £9 3,5, from Buseke. The receipt for £lB had been given by Black, and this was now being used as an evasion. Defendant, when applied to by Black for payment of the moneys, said that there was no legal claim upon him, because he had not sign cd the mortgage. He admitted that he was morally hound, though not legally. The plaintiffs were relying upon the facts, and also the title. The transfer to Buseke was by way of a transfer from a. tenant- in common to a purchaser. Walter .Stuart Black, sheepfanner, said that he had paid one-half of the moneys in the claim in respect- of the partnership. Frequent requests had been made to Kirk for payment, but so far payment had not been made. In 1912 he said there was a land boom on, and after conversation with Kirk they decided to go in for a property for speculation purposes. Another partner was wanted, and defendant suggested Palairet. ' Witness agreed) that he was just the man, and Palairet himself was quite agreeable. The idea was to purchase a property for subdivision, and the profits after disposal of the property to he divided among the partners. They each put in £250 deposit. When the mortgage was prepared Kirk asked for his name to he left off the mortgage, as he was solicitor to Tattley. the owner of the property they acquired, and he did not want the owner to know. Witness agreed to that. The agents concerned 1 in the purchase had given witness a secret perquisite of £33 in connection with the sale, for himself, hut- instead of keeping it he divided it equally among the three partners, as he did not think that it would he honorable to keep it. The books of the partnership were kept by Mr Kirk’s firm. Subsequently defendant took a transfer. Later witness took charge of the books.. Witness made several requests to defendant for payment. Witness heard of the sale to Biiscko through Palairet, and witness then saw Kirk and told him that ho did not. think that the co-partners had been fairly treated, in that the transfer had been made without reference to them, and moreover, that he had sold to a man with whom they would not have had any such dealings. Defendant admitted! that he had acted without reference to them, hut lie said that he bad not had time to speak to them about the matter. Witness saw Buseke, and! ns a result of that he N saw defendant again, and secured' a cheque, tor £lB 5s in connection with the property, telling him to get a balance of £9 3s from Buseke. Theit defendant wrote some words on a piece of paper, saying “Here’s the receipt ; sign it.” Witness signed, but since he had discovered that the document was being used as an agreement binding witness to a conclusion ol defendant’s liability. Defendant was then his solicitor and a personal friend, and he had signed without reading what was in the receipt. Mr Barnard produced the receipt, and witness stated that lie had’ not read it before, and' did 1 not know it was an agreement. Witness saw Buseke, who refused to pay, and then said that lie was taking action against Kirk to make him take this property and some others back again. Witness had endeavored: to come to a friendly settlement. Kirk then told him that as his name was not on the mortgage Tattley would! have to look to Palairet and Black only. He asknowledg.ed that he was morally bound to meet the obligation, but legally he was not, and therefore Black would have tc go to Buseke for the money. Defendant had never been released from his liability, except for the document which witness had signed, no! knowing what was in it. Mr Nolan : Do you ask the Court to believe that this personal friend of yours has tried to. trick you?—The proof of the pudding is in the eating; lie has done it, by leaving his name off that mortgage. Witness explained that he did not like to say that of Mr Kirk, but the facts remained.

Asked wliat Mr Kirk had done as. witness’ solicitor, witness described a loan negotiated by witness for one of bis sisters. There were many other matters which Kirk had handled for him. The reason given for Kirk’s name being left off the mortgage was that given by Kirk himself.

To the Magistrate witness stated that at the time good profits w,ere being made from such deals. They thought they had a good thing. Questioned by Mr Nolan witness said that from time to time Kirk had complained that, salesi were not going through, and that the property was hanging. Witness blamed Kirk for this. He had accused Kirk of preventing a sale which witness had! virtually arranged. When, witness was in H. J. Jones’ office completing the sale, a message came from Kirk not to sign on behalf oi the co-partnership. Therefore witness did not sign and 1 the thing was squashed. Mr Nolan: Did) not Mr Kirk, just before lie went into camp, ask to bo put on the title, .so that he could deal with his own share?—No.

Witness added that the transfer had been executed by Palairet and witness, giving Kirk his third share. When witness complained l to Kirk about t lie sale to Biisckc, the reply was that he had several times tried to get witness on the telephone, hut Ihe latter’s telephone was not working, and he could not get a reply. Defendant had not told Palairet, who was living close, to him, about the sale, before it. was: arranged. Witness said that he had been in business for 20 to 25 years, and he had had a fair measure of success.

Mr Nolan: And you ask us to believe that you signed this receipt without reading it? —Yes, because I had! confidence in Mr Kirk. Mr Noinn : Were you not there about two hours?—Yes.

Mi Nolan : And was that interview so hurried that you. <!ul iml have time l<« read l lie. receipt?—No. hut we were talk Hi” about private matters which did mil concern the ease.

Witness added lliui it- was not good policy to ask a man for money directh the visitor darkened his floors. That would probably mean a cold reception. Mr Nolan : I s,ee, so you brought him gently up to tin; subject- of money.

Witness said that lie bad seen Bnscki about payment- of the £9 os. Mr Nolan: Did not Buseke say iliat he owed t he money hut could not pay ? No, he said that Kirk held him in lib power.- lie; also said that tie was going to make Kirk take- back that property.

Witness added'-that he had sent- ae counts to Buseke for payment beeaust Buseke had said that he wanted details so that he would know where ho stood. Mr Nolan : You never told Mr Kirk that you held' him responsible?—No.

Witness explained that Kirk had sail: that there was a weak legal point in tin case. Kirk had never said that it war unreasonable for him to pay '.i.e monc\ after he had sold his share. P.essim had been brought upon witness to get him to bring the case, hut ae was mi willing to bring it, as he did not v; ill to sever his friendship with Kirk. IK denied that lie had given as a re;,sol. that he did not want to tiling i.'ie case because Kirk had a legal clearance. Kirihad' taken an unfair advantage i f 1 is r-o partners.

Further questioned by Mr Barnard who produced the firm’s books, witn-es-gnve details of a number of loan negotiations, which had been carried on pro viously by Kirk. In addition to acting for witness in conveyancing matters, Kirk’s firm had also acted for witness in other matters. Witness had support ed Kirk in all ways in the past, political ly and publicly, and had supported him at elections.

Witness said that he liad a lot of ri spect for Air Kirk, and for Airs Kirk and*he thought that they had a “bonny girl and boy.

At this stage Air Kirk turned in jib seat to say something to Air Burnard. Air Burnard (to the' Magistrate): i understand that Air Kirk has something to say. If lie will say it in public—

The Alagistrate held that it would be better to proceed with the evidence. After a few more: questions by Air Bur nurd, the witness Black’s evidence con eluded.

F. B. Palairet explained how he- came into the transaction. He had’ agreed tliat, the prospects were good. They were going to acquire a property, cut .it up and sell it for building purposes. Witness paid iris deposit. It- came as a great surprise to him to know that Kirk, the principal, was not on the mortgage. Three of the sections in the property was sold. Witness paid hit third share of all expenses. Witness heard of the sale to Buseke, but Kirk had not told him about it before the sale. Witness had never acquiesced in the sale, and 1 had never recognised anyone by Air Kirk in the matter. To Air Nolan lie said when he- first went in for the transaction that Kirk was not on the title.

Air Nolan: Did l Mr Kirk complain to you that Black was asking too much foi the sections?—Yes.

Witness added that- after the sale o! Kirk’s share to Buseke, lie had met Buseke, who, after a conversation, asked him to put a price on bis share for sale to Buseke, blit 'witness had never done that. i

This concluded the. case- for the plain tills.

Air Nolan explained that- ihe defence was that the riionev was not payable bv Mr Kirk. Up tiff October, 1920, AL Kirk- was not on the title, but, then he insisted upon getting on to the title in order to do something with his share Much had been done in the plaintiff’s case to throw the worse possible motives upon Air Kirk, hut the evidence would show that there was nothing which amounted to taking an unfair advantage of his co-partners. It would he: explained that, the receipt- given by Air Kirk had been accepted as a settlement- of his liabilities. The speculation was not a partnership and never had been. Even if it were hold to lie,a partnership it was of such a nature that each was free to” dispose- of his own share.

His Worship said it was clear that the speculation wad not a partnership, as there was no evidence of Hint. 7t was clearly a case, of co-ownership. The sole issue of fact was regarding the receipt, as to whether it was a discharge. $ If Mr Kirk had been farseeing enough to say that lie would keep off the title, lie would not have acted wisely in taking a transfer. The question was, did the receipt terminate Mr Kirk’s liability. J. I?.. Kirk, barrister and solicitor, explained the transaction. It was a pure speculation, Palairet, Black and defendant, putting in £250 each. There waxno difficulty in selling two sections at a good price, luit there was difficulty in selling a. third seel ion. To-dnv there remained unsold, in the name of Palairet. Black and Buscke a block of just under six acres, encumbered by a mortgage q f only £750. The property was a great asset, and any suggestion that lie had got out, leaving his liability with them, was quite unfair. The property was in front of Mr Waller Barker’s property in Russell Street. The title was fixed up in the office of Kirk, Bernard, and Sievwright, and when witness was senior partner in that firm ; the title was drawn up by an experienced clerk. Witness would have been quite satisfied if the title had been in the name only of Mr Black. Ho did not know why Palairet had been brought in. There was no ulterior motive in having his own name left off. It did 1 not matter whose name went on the title. It was not though! • hat the mortgage would ever have been called upon, for they thought that the whole transaction would have been wound up very promptly. Unfortunately the property did not sell well. Mr Blnc’k had said 1 that defendant had been the cause of preventing a sale, but lie bad a reason in the incident referred to. He had complained about the difficulty of getting sales, and several times he had told Black that his prices were too high. Witness offered' his share to Black, and then witness said that ho would have to do something to get rid of his share. Black said that lie would try to sell defendant’s share, and he asked what price was required. Before going into camp defendant gave instructions that he should’ ho put on the title. The transfer was taken out on October 20, 1916. In the middle of 1919, when defendant returned, nothing had apparently been done with the property, and he set about

making some deal w hich w ould relieve j him Black ■lid not purchase it him sell, and did mil find a purchaser. Dili mutely defendant was approached l>\ Buseke, and unfortunately Buseke agreed to purchase- the place by way of exchange. It was unfortunate because he had been called upon to pay on a mortgage on the property exchanged, amt now he was asked to pay on ibis other property. Black's telephone was out of order, and he had not been able to communicate with him. He notified Mr Pnlairet on the day of the sale, and- Air I’alairet raised no objection, but said that he wished he had been able to do the same. Black had not raised an objection to the sale when told about it. When the sale was made Buseke was regarded as being very sound financially, although since he had been the victim of circumstances. Black afterwards called upon him to arrange an adjustment of rates, etc., on the place. Black had referred to the moral aspect of the ease, and defendant had said that- the- moral aspect was one. which could not arise now. There was nothing to prevent one of them from selling. Black gave him a bill for £27 Bs, saying that he could not get anything out of Buseke. Defendant explained that as lie had finished with the property from October 5. it was fair that he should give- what, was due from him at that time. They apportioned ihe amount between himself and Buseke, there being no question but that it was a settlement of his liabilities:.

i’i.. V.Y.rship: Did you make it- clear that Black was signing something which would cause him to look to Buseke.

Defendant Explained that it was unfair to seek to make him liable now.

His W orship said that he could not see that, defendant had relieved himself of the liability to stand behind Buseke. Defendant : Why does he say that he did not read the receipt?

His Worship : That does not help you. lie added that defendant would have to satisfy him that Black knew that the receipt was a settlement of defendant’s liability.

Defendant explained that.at the time lie was not acting, as a solicitor. His trouble was that lie had been too careless.

Asked by Air Burnard as to whether witness denied that Air Black introduced the business of Black’s trustees to him, witness said that he had no knowledge of that. He had! no recollection of having lent out money for Air Black. He did not remember a claim bv Black Bros, for £2OO. Air Burnard : At any rate you cannot contradict Air Black when lie. speaks of the different persons- lie lias introduced. Air Burnard produced entries in the linn’s books relating to work done by the firm for Air Black or Black Bros., this being shown to defendant, who said that none of the entries recalled’ anything to him. He knew most of the people without introduction from Air Black. He did not remember doing anything for Mr Black during the last eight or nine years. Air Black throughout the time he had known him had been a supporter of his, and a personal friend. He did not remember acting for Air Tattley (owner of the property before the- transaction). Air Palairet told him that he would take anything to get old of the transaction, and Air Black had said afterwards that- he had made an arrangement with Air Pnlairet to buy his share for £65.

Mr Burnard : Did you not know at Ihe beginning that, your name wasa left oft the title?—Y’es.

Defendant expressed the- opinion (hat Mr Burnard had suggested to Air Black .hat defendant had left his name oil’ for some ulterior motive. Air Burnard held that this was an absurd statement. Defendant : II may seem absurd, hid 1 know you so- well.

Mr Burnard asked llis Worship for a ruling as to whether-this statement was a proper one. lie pointed out that His Worship bad not had to ask him to withdraw any statement lie had' made during the case. Air Nolan : Due largely to good nature, 1 think.

Mr Barton declined to give a ruling, and! urged Air Burnard to proceed with his examination, as nothing was to he gained’ by Ibis questioning, where personal feeling entered into the case. Charles Buseke explained that ho had agreed to purchase Kirk’s share by way of exchange. Black called upon him for payment of rates, taxes, etc., on the section, and! witness said that he could not pay. Ho denied that lie had l said that- he would not, pay because he was taking action against Kirk. Black had seen him some months after and witness again said that he could not pay. He denied that he had told Black that lie had been “lambed down” over the transaction and that Kirk hacll forced the transaction upon him. This concluded defendant’s case. After being addressed by counsel His ‘Worship reserved his decision.