SUPREME COURT.

Wanganui Chronicle, Volume XX, Issue 3503, 26 October 1877, Page 2

SUPREME COURT.

Civil Sittings,

Thorsdav, October 25, 1877.

[Before His Honor Mr Justice Richmond.]

Gerse v Coombes

The following jury were sworn : — J. Hurley (foreman), A. O'Connor, R. Hume, J. Clark, li, Beauchamp, S. G. Harris, W. Ralph, W. Napier, F. W. Finer, James Betts, VV. Burr, and S. T. Wright. - Mr Hutchison appeared for the plaintiff and Mr Fitzherbert for the defendant. This was au action to recover a share in a land speculation. Mr Hutchison stated the case to the jury, lt appeared tbat in 1874 Mr Coombes entered into au agreement witb Mr Gerse to purchase a large block of land on the left bank of the Wanganui liiver, and after a great deal of trouble and time his client succeeded in purchasing a block of about 1,800 acres. The conveyance was made out in Mr Cuombes' name, in order to secure to him the payment of the money advanced. The jury would, therefore, have to decide, first — Was the agreement made ; second, did Mr Gerse buy the land ; and third, did Mr Coombes occupy and live on the land and sell it.

John Ivo Gerse deposed — I reside at Putiki ; I know Mr Coombes ; I recollect bim calling on me in April, 1874 ; it was jnst after he sold his place on the Tine at Waihi ; he told me that he had money I to invest, and that as 1 was well known to 1 the natives, and could speak their language, that I was to buy a block of native land ; we were to see the land together. We were to sell, if possible, and I was to receive half the profit ; we had many conversations together, and went to see many blocks of land ; 1 did all the talk with the Maoris; we came to an arrangement about Ara te Waka; it is on the Upokongaro Creek, on the left bank of the Wanganni River ; the extent of the land is 1,802 acres ; Mr Coouibes said it he could buy for £l per acre he was sure he could sell for £2 per acre ; we went to see the natives ; Akaria was the principal; we purchased the ,land for £1,700, and the natives were to pay all the expenses ; the title to it was made all right ; a few months after Mr Coombes told me he had paid £1000 upon it ; a few days before he paid the money he asked me to be at home and ready in case he wanted me; between the time I made the arrangements with the Maoris and the payment of £1000 Mr Coombes came to my place every day ; after he had paid the money he never came near my house, aud I could not see him ; I wrote lain a letter (notice to produce admitted, but letter not forthcoming) I sent, it to the defendant by one of my children ; the defendant called a few days after and said he had received my letter and asked me what I wanted, ln my letter I asked him to come to some arrangements about the land ; I asked lam to come into the parlour bnt he refused, and took me on to the road ; he asked me what I wanted ; I told him of the arrangement; he said he would give'me a very small sum indeed ; Mr England came up at the time and nothing further was said ; we had several conversations about putting cattle on the land, and defendant proposed that my stepson should look after them, and they would divide the profit ; he also proposed that we should purchase the Waimatau Block adjoining, but nothing came of it ; Coombes went to live on the block ; it is about 15 miles'* fram town ; I have had proposals made to me through others for a settlement ; Coombes has made none ; several others asked me to buy the block for them, but 1 would not listen to them. Cross-examined — I am a veterinary surgeon, and keep a store and manufacture sauce ; this transaction wa3 outside of my ordinary business ; when Coombes 3poke to me about tbe land nothing was said about the price ; I went to see two other blocks besides the one we purchased; the tirst time 1 went to Waimatau the Maoris would. not sell; while we were viewing the other blocks nothing was said about the division of prpfi ts ; the defendant never said anything to me about com. mission ; it was never suggested to me by Coombes ; the price was £1,700 ; I did not leave Coombes to go alone ; he ran away from me ; I arranged that the Natives should pay all the expenses ; Coombes said there were some law expenses he had to pay ; I do not know who paid the Interpreter's fees ; I am not a Native Interpreter ; it was perhaps eight or ten days before the purchase was completed ; if Coombes had not sold it, I should have had to do something else ; Coombes%nce told me he was going to sell the land for £2 103 per acre, and he would give me one-third of it ; he called me over to my gate ; I made no reply ; I swear most positively that Coombes never offered me 5 per cent on the purchase, deducting the expenses he had paid ; Coombes valued my services as negotiator at the same rate as his own, as the fiuder of the money ; I had tea one Sunday at Coombes' when Anderson was there ; 1 am sure of it. Hannah Gerse, the wife of plaintiff, was called, aud corroborated the ovidence of Mr Gerse as to the conversation relative to the purchase of the land. John G. Anderson deposed — I am a fellmonger, and know both the parties to this action ; I met Mr and Mrs Gerse one Sunday evening at Mr Coombes' house ; he (Coombes) told me that he and Mr Gerse were goiug to buy about 2,000 acres of land up the river ; that is all that I remember ; I had other conversations ; I told Mr Coombes that Mr Gerse had complained of his not keeping to his bargain about the land ; Coombes said that Gerse had not paid the money, and was putting no cattle on the land, and he could not expect it; 1 told him 1 was '-going to be

summoned as a witness ; he told me to go to Mr Gerse aud offer him £100 to settle the affair ; Mr" J. J. Wright waa present ; Mr Coombes held a bill of mine for £32, and he said if 1 settled the matter he would tear it np. Cross-examined — I am not certain whether I ever bad a meal at Coombes' honse with Mr Gerse ; we were present together twice I think ; Coombes said that if Gerse would take £100 to settle the affair I should have the money immediately ; Gerse referred me to bis solicitor; I saw his solicitor, and he refused it ; I did tell a person, in chaff, that I had got £100 from Coombes ; I told Mr Dallas, but it was all in chaff ; I told Mr James Lomax tbe same thing ; I do not remember telling Mr Lomax that Coombes bad given me a cheque for £100 ; I had no conversation with Lomax about Coombes' affairs ; I swear positively that Coombes authorised me to offer Gerse £100, and yesterday week be again authorised me to go to Gerse and offer him £200 to settle the matter, less the expenses ; I went to Gerse and asked him the lowest he would take— would he take £200 ; Gerse said he would leave it to his solicitor. Re-examined — I was chaffing Mr Lomax and leading bim on a string when I told him about the £100. James John Wright deposed — I am a fanner ; I was at the Red Lion Hotel a week ago, and heard Coombes tell Anderson that if Gerse would take£loo he could have it at any moment ; I went to Gerse with Anderson ; he refused the offer. Cross-examiued— l heard nothing said about commission ; T went down to Gerse's house with Anderson. Augustine Georgetti and Takaria Koraka were also examined on behalf of the plaintiff. This closed th-i plaintiff's case. A discussion here arose as to the issues to be left to the jury, when it was decided that the fact as to whether an agreement was or was not made should be the chief issue, and the others collateral to that — the question of damages to be withdrawn from the jury. His Honor said that if the jury found on the principal issue, good sense and moderation should prevent an appeal to a second j ury . Mr Fitzherbert then addressed tbe jury for the defence, and contended that, although the evidence he should offer would be diametrically opposite to tbat of the plaintiff, he did not mean to impute that there had been no agreement ever made between them. What he meant to say was that the defendant had employed the plaintiff as an agent .to whom waa to be paid a commission on the purchase. The learned gentleman commented on the evidence for the plaintiff, and particularly that of Mr Anderson, whicb, he said, was unworthy of belief. He seemed to have acted the part of a treacherons friend, and played into the hands of Mr Gerse, while pretending to be friendly with Mr Coombes. William Coombes deposed— l am defendant in this action ; about three years ago Mr Gerse undertook to purchase some native land for me ; I asked hitn to bay a block of land, and offered to give him a good commission on the purchase ; I went to see several blocks ; I went to Ara te Waka ; I told him to offer £1,400 for it ; Gerse said the Maoris would not accept it, and ther6 was another man after it ; I afterwards told him to offer ,£1,700 for it, the fMaoris to pay all expenses ; afterwards I saw tbe Maoris at Mr Woon's office ; about a month after I had another letter from Mr Woon ; the title was delayed ; Mr Gerse was preseut at the first two meetings, but at noue after October ; the purchage money was £1,700; I paid £1,000 down and the balance when I got the title ; when the title was complete the natives said they would draw unless I paid the interpreter's and th& solicitor's fees ; I paid them ; I lived nearty two years on the block ; I told Mr Gerse that I would either pay him commission or allow him to run a number of cattle on the run if he would provide a man to look after them ; he said he could not tell what he would accept ; I believe I did receive a letter from Mr Gerse ; after I received this letter I told Mr Gerse that the land had ci st me more than 1 expected, and if he would make me an allowance for it I would pay him his commission ; 1 have expended a considerable sum on it ; during the time 1 was living on the block I had no conversation with Mr (Terse about it; I do not recollect Mr Anderson and Mr Gerse being at niy bouse together ; about a fortnight ago I was in the Red Lion with Mr Brownlie, when Mr Anderson came in ; I was on the point of leaving when he called me back and asked me whether I recollected a conversation between us about three years ago ; Wright came in and said Gerse was going jto the Court ; he said, " why not settle it I out of Court— why not give him £100" ; j 1 said I would gladly give him something, j and always considered I was indebted to j him ; I then went away ; no such conversation as that related by Mr Gerse ever took place. Cross-examined—At the meetings at. Mr Woon's office after October Mr Gerse was never present ; I never -received a bill from Mr Gerse ; I made an offer for. cathe to run there for five years ; 1 did not know how many he could run ; a new run will not carry many ; after 1 heard of Mr Gerse claims I never spoke to him ; I hold some papers of Mr Gerse'a now, which 1 will give up on payment ; 1" sold the place, cattle, and everything for £6,500 ; everything was sold in a lump ; 1 sold through an agent, Mr Liffiton ; 1 never* told him at what I valued tbe improvements. James Lomax, a farmer, was called, as to the conversation with Anderson. Mr Fitzherbert then addressed the jury on the evidence, and said that the most important issue waa whether the land was to be sold aa soon after it was purchased aa possible, and the profits equally divided between plaintiff and defendant. So many otber facts were admitted between the parties that the main issue laid aa above on the laat few words of the third plea, and he left the matter in the hands of the jury. Mr Hutchiaon then replied, and contended that the ballance of the testimony lay with the plaintiff. He pointed out tbat if Mr Gerae was to be paid by commission he would have had no inducement to purchase -as cheaply as possible, for the commission on £1,700 would not come to a3 much aa on the sum of £2,500. But the fact waa that Mr Coombes made too good a bargain and his avarice got the better of his honesty. He felt quite i sure that the jury would do justice between the parties, ** ; ;•'■'-

idis Honor then summed up, with great care, reading to the jury all the salient pointa of the "evidence, and leaving it to them to say whether the plaintiff had established a right to a verdict on the firat issue. That wa3 the most important one, and many of the others had been admitted. He had gone through all the important points of the evidence, and the facts were now for them to decide.

The jury retired at 4 30 p.m. and were absent an hour, when the foreman and two of the jury came back and asked if whether they returned a verdict of Yea under the first plea, it would bave the effect of establishing a partnership ?

His Honor said that was a question of law, with which they had nothing to do. All they had to say was yes or no to the various issues, and leave the law for the Court to decide.

The jury retired, and in another half hour returned into Court with a verdict for the plaintiff on all the issues. The Court then rose.