A LAND DEAL.

Star (Christchurch), Issue 20058, 22 September 1920, Page 4

A LAND DEAL.

AGENTS CIA'M FOR COM* PEHSATISN, trtfna <j,g Ills hearing of a "claim by H. H. Cook, of Christchurch,' against Roderick M’Kenzie. formerly of Havarden, now of TiTienuakito, Mercury Bay. Auckland, for £562 lOs, commission an the sals of Mount Wjiituow Estate, nea r Hawarflfch to A. f>. Kennedy, of Melhhgtbh. w3.b continued in the Supremh Court .yesterday, beforb his Honor Mf Justice .Sii'ri and a jury of twelve. Mr J. H. Upborn, with him Mr W. ,T. Snii, appeared fo t plaintiff, qM Mr 6. I. J. Alpers, with him Hi C. S. thbrnaß, for defendant, Mf Thomas, .opening f6t defendant, said that defendhht admitted that.plains tiff aided as his agent and sold the estate to Kehnecly, hut defendant agreed 16 sell oh only one understanding, namely, that Cook should obtain for him £SOOO on , necpuht of Kennedy's equilies and £6OOO by an increased mortgage on the pststo. making a total to defendant of £II.OOO. The main dgfe.iice retted on the fact that Cbok had failed to carry out thH agreeitent. Defendant, who was ah old then, a far* mhr fropi. the back blocks, had required £9OOO to clear otter liabilities and expected to use the £II,OOO hi that Way. Roderick M"Kehrihe, defendant, said that in 1917 Ids son went to the war, and witness was anxious to sell. Finallv, he transferred the estate to Kennedy Tpihbut cash, taking a mortgage oyer Kennedy's equities in hotels. He did it on Cook's assurance that out of f he . equities witness , would get the O-jOCO he required. Withers informed Look that there were 3300 sheep on the es , Hi that Kennedy stood J?Jft % 3500, lyithess said that if Look informed Kennedy that there wtee 3500 sheep. 200 wo'uld have to te made up by Cook, ns it would be his mistake. Ihe results of the traptacronSi^erP that Witness 16st £2BB oh ■’ ie 200 sheep, ahd £1712 in deprecaotM securities, receiving for tlm eSho est3t abbut £29..000 instead of ■ * m, 3i fa>iped b T Cook. He had to sell his motbr-car and raise other loans in order to meet obligations. John Thorn. Christchurch, land salesman, formerly employed bv H. H. Cook aiid Go.. &air] ihat, during t!uv I rati diftnflaut altars enipha. n?i ( ono° f , act I th: l t > must have wll 000 cash, which plaintiff knew. D‘olendanfc sold the estate on that understanding. TO-DAY’S PROCEEDINGSMTien the Court resumed at 0.30 a.m. , , Honor ' tommiug up, said 1 1 n-fes ni a S rG ed to tell to Kennedy 3000 sheep on the estate, hut was able to deliver only 3300. Defendant, authorised plaintiff to raise loans for Defendant claimed that in the authorisation n, clause was inserted by plaintiff that he should be paid a . procuration fee for raising the loans. Defendant, in fact, made a, charge of forgery against plaintiff. The charge was purposeless, as no claim was made in the present case for payment of the Fee. The 'charge against plaintiff was irrelevant, nnd’if a man nras prepared to make reckless charges of forgery of that kind, it was a matter for the jury to consider when determining the value of his evidence in matters that were relevant. The main question was whether plaintiff in arranging the sale undertook to raise £SOOO on equities belonging to Kennedy and £6OOO as an additional mortgage on Mount Whitnow. There was not a scrap of writing in support of defendant’s contention fib at plaintiff gave that undertaking. No attempt was made to get plaintiff to carry out the alleged undertaking. If plaintiff made a. definite contract, why did not defendant call on him to carry it out? If there, was a contract it should have been completed before the estate was handed over to Kennedy, who had been given possssion. It was significant, that, in the original pleadings, dated July 9 1919, there was not a single word about that important undertaking. If the case had gone to trial on those pleadings, defendant would have, had no defence whatever, because all tlie three defences set out in those pleadings, apparently, were without and they were the only grounds on which it was proposed then to resist the claim. 'Hie facts suggested very strongly that the present defence was merely an after-thought. If the jury found that plaintiff did undertake to raise £SOOO and £6OOO for defendant, it must decide whether his failcre to do so Vm misconduct and should deprive him of the right fo recover any commissionBut it was not suggested that if the undertaking was given, plaintiff could hare, carried it, out, even if lie had fried to do so, because the evidence showed that attempts were, made by Mr Aclancl of Messrs Wilding and Adaikt, acting, apparently, for defendant, to raise the money, and he. actually increased defendant’s mortgage from £IO,OOO to £14,000, thus raising £4OOO for defendant. JUDGMENT FOR PLAINTIFF. The jury, after retiring for two hours, returned answers as follows to the issues submitted to it:— (1) Did plaintiff undertake definitely to raise for defendant the sum of £SOOO on Kennedy’s equities of redemption, and get the first mortgage on the estate increased! from £IO,OOO to £16,000? No. (21 If he did so undertake, did defendant contract with Kennedy in reliance on such undertaking?— No. (31 If plaintiff did so undertake, was his •failure to carry out. his undertaking Mich misconduct, as ought to deprive plaintiff of hri_ right to recover any commission ?—No answer required. The foreman said that, the decision was come to by ten members to two. His Honor, with the consent of counsel, accepted, a verdict on that basis. Judgment was given for plaintiff for the. sum claimed, £562 10s. His Honor certified for second counsel, one day at £8 8s and (he second day at. £3 3s, also £6 6s for second dav of trial.