SUPREME COURT

Southland Times, Issue 17749, 2 June 1916, Page 2

SUPREME COURT

THURSDAY, JUNE 1. (Before His Honour Mr Justice Sim.) ' The Court resumed at 9.110 a.m. FERGUSSON v. FEKGUSSON. IN DIVORCE. Mabel VU. Fcrgusson (Mr E. G. OTlelrue) petitioned for a divorce from Gordon L. B. Fcrgusson on grounds of desertion. The respondent did not appear. Air O’BciVne said that the parties were married on September JU. 1910, and on October 99 it was necessary for the petitioner to go into an hospital. AAhilc she was there the respondent refused to contribute anything towards her expenses. This slate of affairs continued until 'December 16 when the petitioner left the hospital. The respondent made no arrungemenls for her, although site required to be carefully looked after. Her mother came to the rescue and the petitioner had been living with her since. The respondent was in a good position and well able to support the petitioner had he intended to do so. The evidence of a .Mrs Irving would conclusively establish his intention to abandon the petitioner from October, 39. Evidence was given by the petitioner and by Emma Irving, who in 1910 kept an hospital in Christchurch. A decree nisi was granted, to become absolute in three months. The respondent was ordered to pay costs on the lowest scale, with disbursements and witnesses' expenses as fixed by Registrar. WILSON v. MOIR. ALLEGED BREACH OF CONTRACT. David AVilson (Mr C. G. White) v. Evelyn M. Moir (Air H. Mucalister)— Claim for specific performance of agreement, or. in the alternative, for £1069 damages for breach of contract. The plaintiff gave evidence that in 1915 he had entered into negotiations for the purchase of the freehold of a property at Orawia belonging to the defendant and had received a reply agreeing to accept bis offer.' The last letter was dated January 22. The matter was then referred to the National Mortgage and Agency Co. by Moir, and witness got into communication with them. On February 9 lie learned that the matter had been referred to the Land Board. In the letter mentioning this a matter of improvements to the amount of £l4l was first referred to. More correspondence passed, and on July 32 witness received a letter from Messrs Alacalistor Bros, refusing to complete and agreeing to accept service. Witness claimed damages at the rate of £2 per acre in respect of the loss of hip bargain. Since January the failway to Orawia had been surveyed and culverts put down. Cross-examined: Witness had not anticipated the defendant's having to make improvements to get the freehold. To. Mr While; He had. not considered the point at all. Evidence was called by the plaintiff in regard to increased value of the land in question as a result of the proposed railway.

John Krnest Moir, husband of the defendant, stated that in January, 1908, he took np the, least of the property. There had then been some improvements effected. At the time at which negotiations with the plaintiff were entered into, witness was not aware that further improvements had to be put on before the property could lie. freehold,. Witness had considered later that the sale to the plaintiff was off, and had sold to a. man named Barker. In selling to Wilson witness was not making anything on the deal, and in selling to Barker he was selling at a loss. William Barker, farmer, of Kapuka, gave evidence that he purchased .Mrs Moir's property at £l5O. It had been offered to him at £250 in the first place. To Mr White: When witness bought, he knew there was a caveat on the property and that there was a little doubt as to whether he would get it. He knew the plaintiff claimed io have purchased it. John Penny, land agent, of the firm of Hodges and Penny, Invercargill, stated that Mrs Moir’s property was put into the hands of the firm on May 14, 1915. as a leasehold for sale at £250. On March 11. 1916, a sale to Barker at £1.50 was effected. Property in Hie locality in which Moir’s was had appreciated.' hut certainly not; to the extent of £2 per acre. ■ To Mr White. Witness in negotiating the sale to Barker explained tho whoh; position to tho latter, John Herbert Lewis, engineer of the Public. Works Department, staled that about the last day of October. 1914. he commenced the preliminary survey of tho railway from Tuatapere to Orawia, completing it in April, 1915. In reply to Mr White, witness stated that four miles of railway were under construction. Mr White said that the first defence raised was that there was no contract between the plaintiff and defendant. The second was the plea of the Statute of Frauds, but there was nothing in the evidence to show that the Statute had not been complied with. The third was that of mutual mistake. Counsel referred to authority upon tho question of an alleged misapprehension. A mistake of one of tho parties as to the. effect of the contract upon his own interests did not justify refusal of specific; performance. The plea w;is erne, of mutual mistake, but this could not be hold in view of the evidence given. It might possibly he set up that there was a unilateral mistake, hut, as said before, only in regard to the effect of Hie contract upon the defendant's interests and not to the meaning of the contract. It was door from the letters that the contract was unmistakable. The meaning of "freehold" was evidently known to both the parties, and in eases where a freehold wa.s mentioned it was an unencumbered freehold that was contracted for. Aloir had failed to take an ordinary precaution and had to take tho consequences. Kven after the question of improvements had been raised, the National Mortgage and Agency do., on behalf of .Moir, had accepted the plaintiffs deposit of £2O and gone on with the negotiations for conversion of the leasehold to freehold. Air Ma.calister contended Hint there was no contract. .Moir's acceptance of the offer made having been conditional. If there had been no such mistake as that pleaded, it was still .submitted that the statement of defence covered the case of a unilateral mistake. The plaintiff had simply lodged caveat and had lain by for Hie time. In view of the fact that he had taken no steps till practically compelled to do so, the. dourt should refuse to enforce specific performance where a plaintiff came to the Court claiming £1069 damages, more substantial evidence than that, produced was required. It was submitted that there was no contract, and that if the dourt held that there was one, specific performance should not be enforced. Mr White replied, and his Honour reserved his decision. This concluded the business of the session.