AN INVOLVED AGREEMENT.

Stratford Evening Post, Volume XXXI, Issue 33, 23 September 1911, Page 4

AN INVOLVED AGREEMENT.

O CLAIM FOR DEPOSIT AND DAMAGES. In tne Supreme Court yesterday betorc His Honour Mr. Justice Sim! the hearing was resumed of the ease m which Joseph Henry Slight, farmer of Stratford, sued Charles Arnold’ carpenter, of New Plymouth, and Lucy Arnold, his wife, for refund of a deposit of CoO in connection with an for sale of land, and for —J_O Ids _d loss and damages suffered by recession, of the agreement. i.lr. Hutchison appeared for the plaintiff, and Mr. Hutcheu for defendants.

liie statement of claim set out tli n t on August 2, 1910, the parties entered into a contract in writing, whereby tua defendants agreed to sell to plainhft sections 44 and 45, Tarurutangi, V, ; l f ! i UUt n b - v o!ltajnin S 148 * acres, V th , a , .buildings, machinery, and Stock, subject to encumbrances' 1 thereon Ihe price was £2O per acre, this including stock given in at that price. 11m sum of £SO was to bo paid byway °i deposit to J. H. Bowater, of Wanga«lJb agent for the vendors, and £_o() on completion, the balance to remain on mortgage. Tlio deposit was imn p , 0,1 ° 1- ,)ol 'oi'e August 25, 19x0, and completion was to take place on or before September 1, 1910, when possession would be given. Forty acres of tiio land were deficient of a title, but it was guaranteed by J. D. Mcßcth, solicitor, of Wanganui, to tlio value of £OOO to procure a title tree of expense to the purchaser. Ine pleadings further set out that on Align st_ 25 the plaintiff paid the deposit of £SO. On September 1 the defendants, ponding tlio acceptance by t.m plaintiff of the title to section 45 delivered possession to the plaintiff of tne land and chattels. Negotiations proceeded between plaintiff’s solicitor and Mr. J. IV. ]). Mcßcth as to the title to section 45, and eventually a general assent to ■ improved terms acceptable to the plaintiff, if given effect to wag arrived at subject to ccrvain dotads which might be arranged. While matters were thus in a favoura i ° for completion as to tiie tine, difference arose between the parties upon the question of consolidating the encumbrances on the property, and such differences were' found “° 1)0 irreconcilable. On or about January 24, 1911, the defendants, by notice in writing, demanded posses'sion or the farm from the plaintiff nnd by notice dated January 28 the defendants’ solicitor rescinded the agreement of August 22. The plaintdf as soon as he could conveniently vacate the said farm did so without prejudice to his claim for the value of improvements effected by him during tne period of his occupation and for damages for disturbance in possession Defendants re-took possession on L,.,,. o mi. i

L' o.hrn ary 8. The plaintiff was -Iways ready and willing to carry out tiie said agreomentby accepting such ; a title to section 45 as was in course of arrangement. Plaintiff, during Jiff possession of the farm, greatly improved it, and so farmed it that various crops were sown and other work done in the way of providing pasture and crops for tne ensuing season. The defendants, on re-taking possession, >vero accordingly greatly benefited bv the increase of stock and tiie enhanced value of the farm generally from the work and expenditure,of the plaintiff. 'iiie plaintiff had, in consequence of the recission by the defendants oi tiie agreement, and by them re-tak-ing possession of the lauds and chattels as aforesaid, suffered serious loss and damages, and had been put to labour ana expense which hati been fruitless to him. tie therefore claimed tiie refund of the deposit of £SO, together with interest thereon from August 25, ; 1910, the, sum of £27 os Id being the costs incurred by him in the investigation of the title of the land, and 2s 9d, the balance on account of improvements effected hj him (this was tiie amended claim). In their statement of defence the defendants admitted that tiie agreement set ouv in the claim had been

entered into. They also admitted that 0. H. Bowater was their agent for die purpose of effecting the sale of tin. property, but they denied that ho was their,agent for any other purpose. They also denied tJiat the plaintiff paid to them the deposit of £SO on August 25, 1910, or at all. they admitted that they delivered possession of the property and that die plaintiff entered into possession on September 1, 1910. But they said chat such possession was unconditional, and that the plaintiff by accepting possession waived his objections to tne title. With regard to the paragraph in the statement of claim

referring to the negotiations as to tm title to section -It), the defendants said that they were always ready and willing to convey and assure the premises to the plaintiff in accordance with the terms of the contract of sale, and although they offered to do so the plaintiff refused .to complete in accordance with the terms of the said contract, and in consequence of such refusal they rescinded the contract hy the letter of their solicitor dated January 28, 1911. .Defendants also denied the allegations regarding plaintiff vacating the farm without prejudice to his claim for improvements, etc. They said that they re-took possession on or about January 2d, Idii, Defendants further alleged that the plaintiff was not ready and willing ic carry out the agreement for sale according to the terms of it. In parti eular ho was not ready and willing tc take the promises subject to the encumbrances thereon. They said that the plaintiff did not tender to the defendants for execution any deed for conveying or assuring the premises it tho plaintiff. They denied that the farm was improved hy the work anc. expenditure of the plaintiff, or that lie had suffered any loss or damage. The evidence was lengthy and involved.

His Honour pointed out that the question was what interpretation was to lie placed on the agreement of August 2b. If a man chose to make a ioolisli agreement ho must abide by it, unless there was fraud or misrepresentation. There was no allegation of that hero. Mr Hutcheu : We don’t suggest for :i moment that there has been fraud or misrepresentation. The • parties acted quite honestly according to their lights, no doubt. r At the close of plaintiff’s case, His Honour asked, “Have you any audiority, Mr Hutchinson, *to show that you arc entitled to claim for these improvements? There seems to ho direct authority against you on this point.” Mr Hutchinson thought he had authority, and the point was argued. His Honour said he thought the authorities were against Mr Hutchinson. Pie also pointed out that plaintill took possession at his own risk. He made improvements without an agreement, and took his own chance as to the title and encumbrances. Mr Hutcheu moved for a non-suit on the ground that the evidence did not disclose any breach of contract on the part of the defendants. The breach was on the part of the plaintiff in not abiding by the terms of the agreement, by insisting on the encumbrances being consolidated. ( His Honour said ho would read the coi i espoudence (which was voluminous), and would take time to consider xiio matter. Judginent was therefore reserved, News.