HOUSE TRANSACTION

Poverty Bay Herald, Volume LXIV, Issue 19334, 26 May 1937, Page 12

HOUSE TRANSACTION

CONTRACT UNCOMPLETED SUPREME COURT HEARING JUDGE OFFERS ADVICE An unusual procedure was taken in connection with a ease heard by Sir Michael .Myers, the Chief Justice, in the Supreme Court yesterday, when John Wesley Young (Mr. J. S. Wauchop) proceeded against George Albert Hopps (Mr. A. A. Whitehead) for .specific performance of a contract to purchase a house. Mr. Whitehead addressed (lie court first, staling that lie did so by agreement with Air. Wauchop. The defendant was a young man who. being about to be married, had entered into an agreement lo buy the plaintiff's house, on the representation that the building was in good order. The agreement to take the house was made before Hopps had an inspection made, and when the inspection was made it was discovered that there was a certain amount of borer in the limber of the house. The defendant had I lien consulted laud agents, who had advised him that under the circumstances he could not be held lo his contract, and proceeded to sell him another house.

Defendant, continued counsel, had put his own and borrowed money into the second house, and had now no funds at all. He hoped lo convince the court thai he could not lie held to his contract to buy the house from Young.

Evidence was given by Reginald V. Pocock, who staled that the defendant intended to become his son-in-law, and witness, had advised him, on Young's suggestion, to have a look at Young's house with a view lo making an offer for it. Hopps subsequently said he could offer .£BOO for the house, and witness conveyed the offer lo Young. In his earlier discussion with Young, the witness had received an assurance thai the house was in good and sound order, Young on that occasion producing a receipt for a substantial outlay in repairs to the house. When witness intimated to the plaintiff that Hopps would take the house at £BOO, Young said he would think it over. Transaction Agreed Upon Later Young told witness he had decided to sell at the figure named, and a discussion followed as to the best means of payment. Witness had said that Hopps could pay £l5O in cash and when plaintiff agreed to this, witness conveyed his agreement to Hopps before dropping out. of the. negotiations. Cross-examined, witness said he had discussed the house with Young on several occasions. He recalled that on the first occasion he had told Young that be would not pay a commission to any land agent. He remembered that Voting had said, in one conversation, that the place was in an agent's hands at £BSO. He could not remember having agreed to take, the place and give Young £BOO net. Witness had received from Young particulars of the. insurances on the property, and the approximate amount, owing under a Government mortgage. Further cross-examined by Mr. Wauchop, witness staled that he knew that a proposal was made at one stage, though not at the interview just referred to, to the effect that Hopps should give a second mortgage for the amount over the first mortgage. On behalf of Hopps, witness had offered Young £l5O in. cash, and a mortgage for the balance. He had made only one brief visit' to the house, said witness, and he had not inspected it since he heard (here was borer in it. Negotiated Through Pocock The defendant, George, Albert Hopps, a motor mechanic, stated that he had not come in contact with Young in the course of the negotiations. Pocock had coriQucted flie negotiations, and had given him to understand that the price of the house was £BOO, Young's interest in the place being £.'!oo over the Government mortgage. The house was recommended to him by Pocock as a {i°°d, sound house, and he did not examine it for defects.

The agreement had been signed on Easter Saturday, witness continued, as the solicitors were anxious to have the matter cleared up. The house had later been examined by a carpenter, on witness' instructions, and as a result witness instructed his solicitors, Chrisp and Chrisp to notify Young that he must replace timber with borer in it. When Young refused to do this, witness instructed his solicitors to advise Young that he would not continue with the deal. Witness had paid nothing on the house, and had received nothing in Ihe way of rent front the house.

Cross-examined, defendant said thai he had been through the house twice .since signing the agreement. The demand on Young, in respect of the borer, was that, lie should remove the infested timber or correspondingly reduce the price. Decision Not To Proceed Counsel: Had you not; been illadvised by land agents while the law offices were closed, you would have completed purchase of the house'.' — Well, no. 1 did not intend to complete the purchase after finding the borer.

Leslie George Cray, a journeyman carpenter, said that on examining the house lie had found borer in the rear portion, the timber being infested to a considerable, degree. Witness would not have purchased a house for himself in that condition.

Replying to Mr. Wauchop, the witness slated' that be was not confusing

"pinhole" kauri with borer-infested rinin. He could not tell bow serious the infestation was unless the lining of the house was stripped.

This closed the case for the defendant, and the plaintiff, .John Wesley Young, entered the box to state that he bad never given Pocoek any assurance about the condition of Ihe house. Pocoek had not asked him about Hie condition of the bouse, and it was not until after the agreement In buy had been nuide by I'm iiek Hint any reference was made to the repairs which witness had had carried out. Witness had never represented that the house was .sound or otherwise, but the only borer he knew of in the building was confined to one piece of timber.

Cross-examined by Mr. Whitehead, witness said that he had produced the receipts for repair work at, the interview at which Pocoek had agreed to purchase the bouse, and the production was voluntary on his part. Recollection Perfectly Clear Counsel for dei'endanl suggested thai the witness was ;il least as JMtely to be mistaken as was Pocoek. Witness declared, however, that he could not bo

mistaken. He was perfectly clear about what had taken place. The witness was questioned by His Honour as to the, linancial arrangements lie had made with his second mortgagee about the repayment of his money, and also about the repairs and alterations which had been completed six years ago at a cost of £290.

Percy Smith, builder, said that six years ago he had carried out the alterations and additions referred to at a cost of £289. He had found the house, a kauri timber house, perfectly sound. There was one piece of borer-infested timber, which Young said ho bad treated. In a recent examination, witness found no more extensive infestation, the borer being dead in the piece of timber mentioned. "Pinhole" kauri weatherboards might convey the impression of borer being present. Cross-examined, witness stated that be had not examined the tank-stand, and could not swear that there was no borer in the stand, It would not < nil tor ail expert to recognise borer, be admit tea. He had found drawing-pin holes in a door which he thought bail caused confusion in the witness Gray's evidence. •Condition of the House

The presence of borer in a house, said the witness in response to further (inestions, materially affected the value of a, house. Witness would not, care to put new furniture into a bouse m which ne knew borer was present. ITc had not examined every part, of the house and outbuildings, which would not have been possible in the time he gave to his visit. The tank-stand and wood-sued were detached from (lie house, witness saia, re-examined bv Mr. Wauchop. In his inspection he did not see enough borer to class the house as unsound. Neither counsel electing to address the court. His Honour stated that the defendant had not shown yet what the terms of the agreement were. Mr. Wauchop pointed out that the agreement was to purchase the house. His Honour replied that the agreement was not- before the court. "If my learned friend bad not admitted the agreement, it would have been produced," .Mr. Wauchop replied. His Honour said that the agreement had not been stamped. It was therefore not possible to recognise it. Counsel explained to His Honour that the agreement, had been repudiated before it had been stamped, and therefore there was no occasion for stamping it. There was. of course, no intention to evade stamp duly. Chief Justice's Comment

His Honour: Of course, 1 know that. My difficulty is that I know from the evidence, that you are asking me to order specific performance of terms which are not before me. You cannot *et specific performance without, producing the agreement. .After consideration, His Honour remarked that he would give Mr. Wauchop an opportunity to file the agreement, His Honour added further that there was also the point of view that if the plaintiff did win bis case, Jt would apparently result in ruining the defendant without, giving Young any substantial benefit, ft was no concern of his. His Honour stated, but it should perhaps weigh with Young that in winning the ease—if he did win it-—lie would not gain as much as by taking a much smaller sum in settlement, and recouping himself from the sale of the house, which he claimed was in «ood order. Mr. Wauchop assured the court that he bad impressed that view upon Young more than once, and he was glad to hear His Honour refer to the matter. His Honour: 1 would not like \oung to feel that I have reached any decision. If the ease went against. Young, naturally all the burden would fall on linn, and if the case went against defendant, it could only result in ruining a young man who ' could . probably only go bankrupt. The ease was adjourned until 10 a.m. to-day to give counsel an opportunity of. considering the matter.