WILLIS v. MILNER

Wanganui Chronicle, Volume L, Issue 12145, 4 September 1908, Page 5

WILLIS v. MILNER

SPECIFIC PERFORMANCE. lhe Court resumed at 10 a.m. today when the case of A. J. Willis v. b. Milner, was taken, fJ*E S an action by the plaintiff foi the Court to make an order that defendant bo compelled to complete an agreement for the purchase of the goodwill of a leasehold property TrTiT CoJl en aPPeared for the plaintiff dant De?ine-<WeIJfrgton).for defen-

The circumstances as relied on by the pontiff were that plaintiff ,, who waas the lessee from H. Cowper, of some 454 acres ol land a few miles from WanSanui, put the lease in the hands of t>{ , tor' ol1S Oand agent) for sale. Jno lease was for ten years as from 19. 04: xOn 9th May Forlong (acting for Willis) sold the goodwill of the lease to defendant for £550, receiving £100 tteposrt, an agreement to buy bein«drawn up and signed by defendant, and affirmed on the 11th by plaintiff. The date of completion was to be a month later, and the length of the lease 6i years.

Defendant filed a counter-claim for £100 the deposit paid. _Mr Cohen called the plaintiff, A. J. Willis, who detailed the circumstances leading up to the sale by forlong of the farm to Milner.

To Mr Devine: Plaintiff said he had placed the property in Forlong's hands for sale for £"500. It was "in other agents' hands for £450, with the proviso that stock must be purchased at his own price. Forlong had wired him when the was sold. Witness met Milner who did not say he was buying on a 12 years' lease. Defendant did ask plaintiff about a purchasing clause and an extension, and plaintiff said he would have to see Mr Cooper. Forlong had said nothing about an extension of the lease on 11th May. Witness could not say why Forlong asked for £550 when ho fixed the price at £500. H© had an offer of £400 for the lease. The £500 was for the lease pure and simple. Witness had heard, of places being sold for more than price fixed. Did not think better terms were offered for the £550. Would have taken £400 from Mr Robb a year, before if he had taken the stockT Buyers''agents had been to him since the place was sold to Milner.

To Mr Cohen: Did not know Forlong had put £550 on the place. Forlong was to get £30 for selling the placed and no more. The lessor was to payhalf the cost of buildings, erected by the lessee on the property. Forlong never told witness he had sold on anyother terms than in the authority. Mr Cohen closed his case.

Mr Devine for defence, submitted there must be a non-suit as consent of lessor had not been obtained to sale. His Honour said he did not think he could take the point as non-suit point. But would take a note.

Mr Devine outlined defence and called S. Milner, the defendant, of Palmerston .North, who said he was looking out for a farm for self and son-in-law. Called on FurloT"- at Wanganui re a place, and went and saw Willis's property. After insoectino- same went to Mr Furlong's office, and asked what the terms were. Forlong said the place was for sale and he wanted £550 fo rthe lease, which had six years and three months to run. Defendant declined to have anything to do with it and was going away when he asked Forlong if there was any chance of getting any extension of the lease. Forlorig said he would try. After that he said he would guarantee an extension of the lease to 12 years. The rent was not mentioned, hut witness understood it was to remain the same. The matter about the guarantee was repeated several times. Forlong said he would soe Mr Cooper, who was a personal friend of his, and would get the extension for Milner. Witness was then agreeable to purchase'at £550. Forlonsr wrote out an agreement. To His Honour: Forlong wrote it with a pen; it was not typed. To Mr Devine: He did not remember the typewriting. To His Honour: I relied on Forlong's guarantee.

To Mr Devine: Was not concerned with what Forlong wrote down. Thought he was dealing with a straightforward man. Witness paid over a deposit of £100, which he thought he was paying for the 12 years' lease of plaintiff's property. Forlong asked witness to wait and see Willis, and he stopped and met Willis at Forlong's office that night for the purpose of arranging about possession. Defendant said he

stock and¥S: n Matt^ about the arranged h g possessioll were then ForloSg ag J? a f t^d t o hear from noting. Then 'n. Settlin £' b»t heard Per tol-nofA^ tho 8^26 Co"-----f. As the .result of r W? S grant" f c apphed for a ?et«n X Jf Sf> an^ the ground "that the mi+i i ep? S1, fc On misre prcS ce n t cd . WouM^>i, had been '-epe r Ml an ?^ s : ? H^ been an hotelagent in FeiJdlL 8 lr'an- An m a motor ca?' &? ™cc *.° the farm g O i llg te work f or hin, SW«" did not co over tli i ' ,Defendant conversationwith fe iPlace-' but ha<* a Did not at the tinS t ODS iat the houselease. He had a EnV wilength °f the and heard thetSn s of' W* &Tst> Forlon^^^JS^tho lease at Put in wrttiS Mw2S ing- Jt Was said he oreferred 'a ™ T S- may hays and Forlong Sid L V* *reh*sine clause to get a nurcSni ,i" Ould endeavour not rely on that g" w-f' but he *d solicitor ForlSJ Va^lt?eßß*' told llis Npurchasin- clause Wa V^^f to get a until 4th June but *S aS f fc Wood viHo from F or l O n" 6 ' Wito£ n? get a letter letter read. Went +n *GVer- ?ofc the self. Witness's cJn £? ,Dannevirk c himPer, and Ctf^TO»tto CowPer would not aS-^A oi T C-oTr-for Pirtic,,l a ™*f le hl5 B so^' tor.to write ae £-i£« !i.? r«cS long's niaralV S t ase on F°r--S U S aid gh. US r WmfffeaS do^ dir not/emember what would require enlarging. ForloL S Cowper had to. meet the Ss^ t? i I S3 7" 6XtentV ilue' r ask-5 if there could be: an extension, and Forlong i m ! I? V pS" extension to 12 years. Witness did not hear what Forlorn* said, but heard him say he .guaranteed MiW said that under nerlv conl ltlonf he, take the pn£ Party: _ JJe extension ; was to ba at^the same rent- Forlong then prenaJea '&»& rnav o^er.-. Witness sa^Milner sign it. Mi£ ncr clearly + stated he was paying thY deposit on the express condition of th* Sr SVM' Willis and Fo^ng Aiith Milner m the evening; Milne? mentioned -the extension t<? Willis and said ho. had paid the deposit on that X\ ltlOni ™Us e did *°t object. The stock and date of possession were also discussed. -It was arranged^thatFrrlong should write defendant as to the U years. Xater on wired to. Forlong tor Cowper s address and went and saw Cowper. To His Honour: Witness told Cowper he had come from Milner. Cowper knew Milner had purchased the lease. Jo Mr Deyme: Cowper refused an extension. ;" -' ' ■ '

- To Mr Cohen: Heard prices wanted for lease when they retmned from looking at the place on the Friday. Knew what the term was when he went out on {Saturday: Nothing was said as to the Srtension. Forlong did say he guaranteed the- extension to 12 years.- Milner asked if it was possible to work a purchasing clause in, and Forlong said he would endeavour to get one. He did not guaiantee a purchasing clause Could not say why Forlons: had to see v^owper. Told Milner aftef he had seen Lowper that Cowper would not grant extension.-Saw no letters to Milner. lo Mr Devine: Forlong spoke Very strongly when he guaranteed"extension of lease and stated that Cowper was a, personal friend of his (Forlong's). Had no doubt ,Milner said he was taking' place if extension granted. Richard Milner. son of defendant, remerrbered going to Forlong's office and corroborated evidence previously given. :

This concluded the evidence for the defendant. ■ .

On the Court resuming at 2 p.m. Mr Cohen led evidence in rebuttal of defendant's affirmative evidence, arid called H. Cowner, of Darinevirke, farmer, who said defendant's son had come to him as to the extension of the lease, and said what took place when he refused the extension. ;^

To Mr Devine: ETad seen Mr Forlong a few weeks before MilnerV jun., saw. him at Dannevirke. Witness had heard from plaintiff that.he had sold his lease. Forlong had asked witness if he would give a purchasing clause. Was not asked if he would give an extension of alease with a purchasing clause. Witness was only a lessee himself with a purchasing clause. McGowan did not saydefendant had bought Willis's lease and wanted to know if the extension had been granted: Milner and McGowan said they were taking possession on 20th June..'

Percy G. Forlone, of Wanganui, commission agent, said Willis had put his property, m his hands for sale. "Defendant and his soii came and saw witness, sent by Prior, of Feilding, about a place. Went out tri property with Milner. his son and son-in-law. Did not tell Milner anything before he went out as to .terms, etc. At the farm he had a conversation with defendant, who asked if there was any chance of an extension.of the lease. Thought defendant understood there was only 6£ years to go. Witness, told him he might get an extension. The price was mentioned at the office when they got back The price was £-550 and had" been mentioned before. Milner said he did not hko to take the lease as it was tooshort, and mentioned about an extension Witness said he would do the best he could and would see Cowper. A purchasing clause, was also mentioned. Witness read over what Milner signed, and there was no guarantee in what he had written. Witness made no guarantee. Went to Hawke's Bay and sa\r l^owper on way back, and mentioned purchasing clause. As a result wrote to defendant and-got a telegram askine for Cowper's address. Willis, at an interview witness was present at, said «\d not know whether an extension would be granted. Remembered beino> (Continued on page 8.)