A PROPERTY DISPUTE.

Star (Christchurch), Issue 11948, 6 March 1917, Page 6

A PROPERTY DISPUTE.

• M"INTOSH' v. PARK. I I |(|,\LV KOIJ s I'liKlFtG PERFORM-j : ANl'lv - I j j i flu.' bearing of tbe property dispute,-j I M'futos!: v. :"ark, was resumed at the j i tourt to-day, beL'ore in., i iiotior -Sir John Denntstoti. ; ; 'J.'he plaintiff cJa.imed specific perform- j | anee by tho defendant of an uxcbaugp ! jof properties aliegeti to have been j | agieed upon. Defendant claimed that | ) ho had signed a document through mis- j ! representation. Plaintiff had a iarm at | jSpri.ug-st.on which he agreofi to _ ex- j { change for defendant'y property at itcd- | ! ciitis, with cash. Messrs il. it- Cook j and Co. acted as agents for both par- < j ties, and defendant had signed an I ! agreement, purported to be a " tirto'i- j j offer ''' of his properiv. at Cook's office. I I Mr Raymond, 1v.0.', with him_ .Mr j I Johnston,' for the plaintiff, | ! and Mr Beswtck for the defendant. | At the earlier hearing the plain- I |it iff's case had closed, and the defen- i dant had been oxaniitied. Further ex- '■ amimxl he stated that' he had not re- ■' I ceived a- shilling -when the document ; I was signed . j ! In cross-examination Park '-aid that ] I ho had been anxious to exchange Ids. j | Oaniaru farm a yea.r heibre the actual i i exchange. Jardine l>eiug the agent, j | A man named TfscJi bad looked a:- the I : property, and h.e had in.spected Tiseh's i I ]:iroj.K'rty, and svas williing to exchange., I | and made an etler. T'iscii, .however. ■ 1 would not tal-e the Camaru property, j I T'jio next, ttttempted exchange vraa ■ j with Mulcock. for whom Cook v. as act- j | it:a. As far a-s he. knew norhing was j ; signed after Muleoek had first inspe-ot- ! | e-d his property, but later ho signed a! i document making it clear i.ha.t it- was j subject, to his wife's approval. Later i i he signed a eon tract in Oam aru. and j J had signed again in Ciiristchiirch v, ben j j the money was paid to .him. Nothing j | was said earlier to make him 'think i | that he was giving or receiving a. firm • I offer. fie .acknowledged that the j document put in by Air Raymond bear--: big his signature v,v, a firm offer from ; I Mulcock, who fo:• th-.' consideration of I la allowed the oif"r to remain good j I for seven days r fl a jl o - lV him fPark) to | | inspect tile property. ! ! Air Kaymend remarked that Park | j had luid the benefit of the offer on that- j j occasion. j 1 Park, furtihor said j j that be eon Id naol remember a, firm j j offer in Tisch's ease a year earlier, bin, | | the offer was left open for a long time, j i He acknowledged bis signature fo the ' j document producr-d. but knew nothing ; of the clause limit in consideration of a. shilling the offer should remain open til! a certam date. Corning down to M'lntosh's caw. he had been taken out for a. drive, with M"'ln tosh to see i certain properties. I Park said thai he had :tone enrefnllv | over the btiihiings at AF in tosh's lartii. } He did not bear MTntosh say that, fin- j a nee was immaterial, as he was not ' going into another place, but. was i going to enlist. Ho only heard tliac M'lnfosh was going to fbe war, when he went to explain the offer to him. He understood thai the offer was for sever; days, after which either side could cry it tiff. He knew that if the deal came (iff fie was to receive £3500 for the | Redcliifs property, but be did not know j j the date of occupation. He could not j j explain why lie had signed the doeui ment. __ When M'lntosh came to loo.'?' over the pioperty he told Porter that] it was no use going on with the mat- j ter, as the womenfolk were not pleased j with it- He was not anxious to leave ' Red'eiiffs. It was at Cook's snggestiet; 1 that he signed the agreement in regard j to the prospective Gore purchaser who j came to see tho property. 'His wife first told him that she did not want to , go into the country when he came home and told her that lie bad been out took- j ing; at farms. I His Honor asked whether the wife j was likely to agree io a purchase in- j voiving about <J 1.1.000. j Mr Raymond said thai; this was en- ' tirely his case, that tho defendant i'tillv intended to make the |>urchase until bis wife objected to it. His Honor asked how any sensible farmer was likely to go to town in his* cart in the morning, anal come home at night to teli his wife that he had bought a farm 1W cpi.OOO. On the 1 one hand there teas a'signed document; I on the other hand the position he had i stated'. One was as (dear as the i other. | Park, continuing, said that on the J day before M'lnfosh came be was going I to ring r.p Cook to tell him that tinav j was nothing in ike offer, but held off I because there were seven days to consider it. Margaret; Scott Park, the defendant's wife, said that on January 3 her husband went to town to sell bis fruit and returned late at night. Sins did not know that he had. made an offer for a farm when AF In tosh and Porter called. On the following day she and her i husband went to see Cook", and asked Porter bow thev could sen AFfntosh. Porter made inquiries about- trains. He said thev could gnu, out to iU'lntosh's, but could not get back that day. He offered to take them in a. motor-ear, and they went. They did not see MMntosh on arrival. Porter went to look for him, ami later. M'lnlosh came. MTntosh said : " You people have placed mo in an awkward position in connection with releasing you from this offer, as I have enlisted., arranged.about a clearing sale, and placed my matters j in my solicitor's hands to fix up." for- I ter must have told MTntosh what- they had gone to his place for. MTntosh said he did not know what to do, and that he would have to consult his brother. MTntosh asked her husband why he had signed, the offer. He replied: "Because it was not binding." Porter was present. He said: " I know what I would do if it, were in my power---! would burn the agreement." Witness explained to MTntosh the rea~ .sons why the farm would not suit. Shehad said that on account of their children's health and their financial position it was impossible to buy the place They then left. Witness heard Al'Tnl tosh say to her husband: "You are a practical man. I do not want a shilling of your money." On the way. home Porter said to her husband that"MTntosh wanted £IOOO. Her husband, told Porter that- as he had got him into the mess he would have to get him out of it. On the following Monday witness and her husband came to town to consult a solicitor, Ifut found the office closed. On returning a telegram waa waiting from Cook telling them to come to his office at two o'clock. It was too late then, but they called at Cook's at four o'clock. Porter, who was at the) counter, produced a Hale, note ane? -said: "Cook wants you to sign this, giving hire, authority to ssell the farm again." Her husband said that he would not sign anything. They saw Cook subsequently, and her husband said he could not go on with the purchase of the place, as it was much beyond his means. The agreement td purchase was discussed. Cook said ho ivstaally road those documents oyer to intending purchasers, so that all wcAilcl bo made clear. Cook asked her husband why he had signed the docu. ment, and he bad replied that he did not know. Cook had said to jVl'lntosh, who was present: "Look here, M'lntosh, you and your brother are wealthy. Why do you push this man? Ido not want it known or to come before a Court that I had allowed a paper of this kind to go outside of my office without being read over to a man." Porter called on the following day with' an account for commission, but she had tofd him that all communications must -« through the lawyer. Tho farm at

Oair.aru had been given up because of defendant's inditlerent health. To Mr iiaymoud: Witness called at Cook's office, probably towards the end of January, to say t-iiai her husband would not <;uII at Cook's as was desired of liim. She had not said that her husband wisher! to withdraw his offer, 'is no definite offer had been made. She knew" that tho M'l.ntosh who called, to see the Reocbffs property was the one mentioned in connection with the iarxn transaction on the previous day This closed the evidence, and connsol addressed the Court. Mr Itoswick said that appellant appealed to the Court on. the equity stcie of law. It- was a question as to whether he understood the nature of the document which he had signed. Neither M'lntosh nor Park was awaro that anything was to be done on the day on which tho document was signed. Porter suggested that Park should make an offer. An offer in the ordinary sense did not apply in this case. It was clearly a contract to bind. Defendant was clearly under the impression that an offer was intended. The action of defendants had been perfectly straightforward and consistent. Mr Bcswick drew attention to the apparent haste in which Cook's firm endeavoured to settle the transaction. Park did not clearly understand tho document which he signed, and he certainly had no intention of making a binding contract. Porter was acting as an agent of both parties, and it was clear that in this instance ho had acted to the detriment of one party and to the advantage of tho other. E xhafc was not the correct attitude of an agent. (Proceeding.) , The cases of O'Neill v. Holland and Hall v. thfe Public Trustee, set down for hearing to-morrow, have been adjourned till 10.30 a.m. on Thursday. SJ jl' i / »