SUPREME COURT.

Star (Christchurch), Issue 3358, 13 January 1879, Page 2

SUPREME COURT.

CHEISTCHUECH. Monday, Jan. 13. CIVIL SESSIONS. (Before His Honor Mr Justice Johnston.) CLABKE Y. HTJEST. For the plaintiff, Mr Harper for MiThomas j for the defendant, Mr Wynn Williams. This case was in reference to the sale, by the plaintiff to the defendant, of the Sneyd's Arms Hotel, Kaiapoi. The plaintiff claimed £900 for the hotel and valuation for stock and furniture. The defendant pleaded that all he had offered to pay for the hotel was £600, and that though he signed a memorandum of agreement for £900, this agreement had been fraudulently obtained from him while intoxicated. There were in all 11 issues, but of these the majority were admitted. The questions for the jury to decide turned upon the bona fides of the agreement. Under these circumstances. The defendant's case was opened by Mr Williams, who called the following witness *.— James Hirst, residing in Christchurch, deposed : lam a publican, out of business. On July 17 I was residing at Addington. I know plaintiff, owner of the Sneyd's Arms. I had a conversation with him on the 17th. There was no price mentioned. I looked over the place with Saunders. I offered £600 on the 18th, the day after I went to see it. He said he would not take it. His Honor : You are out of Court if that is a fact. Mr Williams : That is only the first issue. His Honor : But you must establish the first issue. Mr Williams : That is not the whole defence. Suppose that plea was not there, tho other two would prove the contract to be bad. His Honor : When do you admit that the money was paid ? Mr Williams : The next day. After some further discussion His Honor said the other issues could be laid before the jury. Witness continued : I offered £600 on the day the agreement was signed. Plaintiff positively refused. I went to the Sneyd's Arms with Saunders by train. We got there about two o'clock. We were there two or three hours. We had a liquor. I went to see if I could get the place cheap I said I would not give him a penny more than £600. Saunders did not seem in a hurry to leave. Clarke said " Come into a back room and then we may do bnsiness." I had a couple more drinks then, and after that have little recollection of what occurred. I had not the slightest idea that I had signed agreement for £900 till I found it iu my pocket the next morning. Clarke and Saunders were one at one of my elbows and the other at tho : other. Saunders I supposed to be my particular friend. I recollect Mr Clarke proposing that I should write a letter to some solicitors about a deed. I attempted to, but could not. Saunders wrote the letter. After the letter was signed I recollect nothing till I left the place in my buggy. I called in at Burhip's Hotel for some soda water, because I felt very bad. Saunders was with me, and I had a drink with him and some others. I gave a cheque for £100 after signing the agreement. I wrote the cheque myself. I have little or no recollection of signing the cheque at all. The cheque is in the bank. I believe I can get it. The agreement is lost. I saw Moran at Burnett's Hotel, and gave him up the buggy. I recollect nothing then till I got to the Terminus Hotel with Saunders. Saunders took me home then in a cab and put mo to bed. I don't recollect this, but I believe he put me to bod. I had been up all night " knocking round " the night before I signed the agreement. I met Saunders at the railway station, and told him I was not fit for business.

> Cross-examined : I saw plaintiff only the 3 night before the 18th. Saunders introduced him to me at the railway-station, Kaiapoi. I . had been to his hotel that afternoon, but he b was not there. I asked him if his hotel was b for salo. I said I might be round there tomorrow on my way to Eangiora. Saunders j was with me. There was no arrangement l that he was to be paid. He is a commission * agent. I looked at other hotels. Saunders '. drove me to the hotel about two o'clock. I i was "seedy," but not drunk. Wo had a ; drink tho first thing. I had wliiskey or ' " squaro," with soda. Clark served it. We • had only one drink there. Saunders said . "We had better proceed to business." I wanted to edge away, as I did not feel fit for business. I had had luncheon, at which. I drank nothing but water. In the little back room I had threo drinks right off the reel. I ■ will swear to two. It was gin neat ; ordinary nobblers in tumbler. Clark and Saunders s must have had some too. I said I would give i only £600 as I entered tho room. I don't , recollect offering £850, or £800, when Clark ■ would not take £600. There was nothing i arranged as to what I was to pay down. I filled up a cheque for £100. I recollect writing a cheque, but not the amount. I did not know what I was doing. I recollect pulling my cheque-book out. I might have i signed for £1000 if I had had it. I did not stop payment of the cheque when I came to my senses. I saw the agreement tho next day. I gave it to my missus, and she has lost it. I don't recollect a copy being given to Clark. I believe I wrote to a solicitor to get the agreement drawn up. On tho 20th I went to plaintiff and tried to get £50 of the doposit back. I said, " Mind you, I could get the cheque stopped on grounds that I don't care to mention, but you can keep the whole, as I don't care to expose myself." I said there was another hotel in the market, which I thought I should buy. It was the Windwhistle Hotel, at the Malvern Hills. I swear I had nat bought it then. I swear I did not tell Clark I would get another man for his place. I had not made definite arrangements for the Windwhistle Hotel. I did not buy it. It was bought in my brother's name, and I was managing it. I don't recollect the agreement about tho furniture. I did not tell Clarke definitely why I would not stop the cheque. I never spoko to him on the subject till ho commenced this action. I never spoke to him since either. I merely instructed my solicitor to set up this defence. I wrote him one letter (produced). That is my handwriting. (The letter was read. It stated that defendant could not pay tho amount claimed, and if sued, would be cora"to go through tho Court.") I was prepared to sign an agreement for £600 before I went into the hack room; but I did not know what I was about when I signed the agreement for £900. I don't know whether I signed for £600 or £900. I was suffering from biliousness. lam subject to biliousness and a few liquors made mo very bad. Though sober, I could easily be made drunk. I don't know a man named Armstrong. Tho afternoon was a dream to me. After going into the back room. I nover alluded to Clarke or i his having made mo drunk until I had put in uiy defence. To his Honor : The outside value of the Snoyd's Arms I should say was £600. Seymour Harris Saunders, who appeared in . ; prison costume, deposed : Some time ago I was a commission agent in Christchurch. I i know both plaintiff and defendant. I was with j them at the Snoyd's Arms. I went there * twice Tho day before tho contract was -\ signed I saw plaintiff at the station. We had ( been to tho Sneyd's Arms before, and plaintiff { was not at home. At the railway station an 1 appointment was mado for the next day. The 1 next day I went from Christchurch by tho a first train, and met defendant at the Kaiapoi ] Defendant said he had been up all night, and 1 was not fit for business. I got a buggy, and wo drove together to the Sneyd's Arms. Clarle was in the bar. We stopped behind the bar t from ton minutes to half an hour, and had q some dry drinks together. I remarked to c defendant, "If you arc going to do any busi-. 1 cess you had better go into the private room, r

behind the bar." This they did— the plaintiff and defendant. I remained between the bar and dining-room. Defendant afterwards 3S£>°T J^ m «<V a ? d Baid plaintiff wanted £900, I said "I don't think it is worth that, make himan offer of £850 or £800" I then accompanied Mr Hirst into the parlour, and pLuntiff said he would take no less than £900. After a little conversation they seemed to agree te the amount, and I drew up the memorandum of agreement us between plaintiff and defendant. The amount was £900. It was signed first by George Clarke I believe*. The document produced is a copy which I made at the time. I witnessed the agreement. Defendant did nob at that time say anything about the amount. He said it seemed a great of money, but did not object to the amount. To his Honor : He seemed excited, I should think from having been up all night. He seemed to know what ho was doing. I saw him sign. He had no difficulty in signing that lam aware of. He Bpoke excitedly, but intelligibly.

To llr Williams: He spoke of writing to his solicitor, and attempted to write a letter. He could not do it, and I did it for him. I saw him write a cheque for £100. I cannot swear that he tore up a cheque. Now that you have brought it to my recollection, I believe he did. He took the pen in his hand to write the letter immediately after signing the cheque, and then asked me to write it. It is true that 1 took him home in a cab. We had a drink at Burnip's and at the Terminus. He was drinking square gin and soda when he did drink during the day. He was not helplessly drunk till ho came to Christchurch. I was sorry to find he was so utterly helpless. I could not couut the drinks we had at Sneyd's. I believe we had three before any business was done. He was talking a great deal.

To his Honor : I was sentenced to eight months for passing a valueless cheque. To Mr Williams : I went to Sneyd's as o. friend of defendant, not as a commissioner. To the foreman » I havo claimed £45 for commission from plaintiff. To Mr Williams: The claim is in my schedule. I have been insolvent. To hi3 Honor : I went as a friend with tho defendant, but wanted a commission from plaintiff. Plaintiff had not asked me to sell. Cross-examined: I knew Clark before. We had a conversation a few days before as to the sale of this property. Plaintiff had given me £1000 as his figure. I took defendant up to look at another property. Clark declined to pay the commission. I did not value the property. Mr Hirst and I went round, and I told him what I considered a fair price. I did not think it worth £900. I heard an offer of £850. The price defendant had mentioned to me was £600. I don't know what occurred in the back room, when I was not there. To Mr Williams : Hirst was in the same state of excitement when he offered £850. He did as I advised him. On the other side Mr Harper called the following witnesses : — George Taylor Clarke, hotelkeeper, deposed: 1 keep the Sneyd's Arms. I first saw defendant on July 17, at the railway station, Kaiapoi. He was with tho last witness. I had been to Christchurch. Hirst was sitting in a buggy. I went to him, and he told me he had been looking over the property, that it was too late to do business that evening, but that he would come again the next day. It was dark, but ho seemed perfectly sober. He aud Mr Saunders came about 2 o'clock. After apologising for not coming by first train, he had a " whiskey and soda." Ho asked the price of tho hotel. I asked him into tho private room. I swear he had no other drinks but oue before he went into the private room. He then asked me the price of the place. I said £900. He said—" I'll give you £850." I refused it, and he then went out and had some talk with Mr Saunders. He returned with Mr Saunders, and said — •■ I'll give you £S5O for tho property, and I'll give you £100 deposit now. I said — "£9OO or nothing. He said — "All right, I'll give you a cheque. Mr Saunders drew up the agreement." He asked if it was a free house, and I said yes, " free from mortgage or brewers" I produced the deeds. I never saw the man before in my lifo. He was anxious to make a good bargain ancl knew what he was about. He and Mr Saunders both looked at the deed. He asked whenJl could give possession ; I said the next day if ho liked. He proposed tho Monday. This was on a Thursday, I believe. Mr Saunders asked if he should value for me as well as for Hirst ; I said no, Mr Weston of Kaiapoi would value for me. He was to value for Hirst. I am positive defendant had no drinks in the back room till the agreement was signed. We had one drink each after the agreement and cheque had been signed. Hirst asked Mr Saunders to write a letter to Mr Porter, sq that the necessary deed could be drawn up for concluding the business on the Monday. I gave £575 for the property in 1873. Property has greatly improved in value since then. To His Honor : Ho walked away, and showed no symptoms of advanced intoxication.

To Mi- Harper : He seemed right enough to make a bargain. I have not employed Sauuders, nor was I pay him any commission. I have had a letter for commission from some of his creditors, but have taken no notice o£ it. I had had no previous conversation with him as to selling the property. Hirst came up to Kaiapoi on the Saturday morning, and said he was sorry ho could not come and take the place on Monday, as he had bought the Windwhistle Hotel. I told him Monday was the day, and I would wait no longer. He said lie could not help it, but he had another man who would take the place from me if I would wait a little longer. I said I looked to him, as I had sold him the property. He did not allude to my making him drunk. Ho did not mention the price being excessive. He never alluded to the price in any way, nor to my having made him drunk until the commencement of this action. He wrote me one letter. The letter read in Court this morning was the same. I borrowed the buggy immediately after the agreement was signed and went to Kaiapoi. 1 returned in half-an-hour. They might have had drinks in my absence. They could have helped themselves. To Mr Williams : He offered me £850 without leaving the room, and then went out to Mr Saunders. I saw nothing to make me believe there was anything wrong with him. I never saw Mr Saunders but once before. I saw him since this transaction in town, and he eaid I was perfectly authorised in selling the place after v.-Jiat had occurred. I swear I did

nob authorise him to sell. Defendant wrote only one cheque. I swear that. Ho handed his pen to Mr Saunders to write the agreement with. I could read the cheque, so could Mr Saunders. I think it said "on deposit for purchase of building." I placed the cheque to my account at the bank in Kaiapoi, and it was honoured. He had a whisky and soda when ho came, and a gin and soda after the agreement. This I gave out of my own pocket. To the Foreman : Mr Saunders drove the buggy away. To his Honour: Mr Saunders drove the buggy to my house when they came. Defendants sat up in the buggy, bid mo good-bye, and said they wore going to Chriatchurcb. John Armstrong, farmer, deposed : I know the plaintiff. I eaw defendant in company with Mr Saunders and two or three others about 3 o'clock on the afternoon of the 18th. I was going past with a load of flour, when Saunders beckoned mo to come in and have a drink. I was driving a team. I left a boy in charge, and I went in. Mr Saunders shouted a glass of beer. Mr Hirst had whisky and soda. The people told me that Mr Clarke had sold the hotel and Mr Saunders introduced me to the new proprietor, Mr Hirst. Hirst was quite eobei-, and told mo he had bought the house. About 4 o'clock I went in again, and saw Hirst and Saundors there. Mr Clarke had left thorn in possession. I had a glass of beer and wanted to shout for Saunders, who seemed to be a sort of a freo man.

His Honor : He does not seem to be a free man just now.

Witness : Saundcrs would not let mo shout. I said it was a good house, and asked, with an apology for my inquisitiveness, what he might have given for it. He asked what I thought. 1 said if ho got it for £700 or £800 he got it cheap. He said he had given more. I said if ifc was not much more he would soon make it- up, and that he was lucky to have got it, as several more were after it. He did not tell me what he gave. Both men wore quite sober; so was I, for I had just come from tho railway station. Mr Williams : A clear proof. Witnesa : I saw him two or three days there. I saw him on the Saturday. He was quite solid always, and would net take any , oi? k# J dlc L nofc , see him g° away on the 18th. Ho offored to take Borne bacon from me a,t 8d a pound. .