MUIR v. MILLWARD.

Wanganui Chronicle, Volume L, Issue 12145, 4 September 1908, Page 8

MUIR v. MILLWARD.

>CT7ON FOT? 4?4" AND DA MA AFP TOR FALSE MISREPRESENTATION

Tho next case was one in which Jam^ T. Muir sued Charles F Millward for repayiuent of Hie sum of' £45 jnfi £15 damages for false misrepresentation. x

~% b\ Hutchison appeared for the plalntifK Mr Tre^lwell fo- th- defpud^ni, lho plaintiff snvs 0) +hat defendant represented to plaintiff that he had for sa!o a leasehold of certain premises in "Pyt of lho Rutland Ho+el. Wan.crauuT which had an unexpired tc^-m of • two and a half years to run. The defendant agreed tn transfer the parne to -Dlamtiff for £45. which plaintiff agreed to pay. (2) At the time of such agrenient such premises were in the occu™tu"* of W. A. Read, land agent. %3) Pending completion of the agree-

ment defendant pressed plaintiff for payment of the £45 tor the leasehold which he again represented had a term unexpired of two and a half years to run, and the plaintiff reiying on the representation of the defendant paid J him the £45 on 7th May. (4) Shortly after that date plaintiff ascertained] that the unexpired term of the said premises was only one and a half years or thereabouts—a very much less valuable term than that represented by the defendant, and Such as plaintiff would not have agreed to purchase. (5) Plaintiff then applied for a refund of the £45 paid on the false representation of the defendant, but the defendant denied liability. (6) The plaintiff sued the defendant in the Magistrate's Court Wanganui, claiming the £45 and £5 damages. The defendant objected that ■the Magistrate's Court had no jurisdiction and the Court non-suited the plaintiff. (7) The plaintiff has notified the defendant that he rescinded the contract and claimed a refund of the £45 and £15 as damages conse-uent on the false representation of the defendant, but defendant has not repaid the £45 to the plaintiff and any other sum. (8) The plaintiff says that the false representation of the defendant was in respect of a material term of the contract and that he was induced by the false representation of the defendant to pay the £45. Wherefore the plaintiff > claims £45 and £15 damages incurred : by tho -laintiff in loss of time and in costs, charges, journeys, and other expenses consequent on the acts of the defendant, and plaintiff claims in the alternative such further or other relief as may be just. , Defendant in his statement of defence (1) denies the allegations in paragraphs 1, 2, and 3 of the statement of claim. (2) He denies the allegations in paragraph 4 of the statement of claim. (3) Admits that plaintiff applied to him for the £45 and that he refused to pay same and save as expressly admitted denies the allegations in paragraph 5 of tho statement of claim. (4) Admits that plaintiff sued him in the Magistrate's Court and that plaintiff was non-suited, but denies the other allegations in paragraph 6 of the statement of.claim.;.- (5> >Ie admits he received a •letter from plaintiff's solicitor claiming a refund of the £45 and £15 damages a;s in paragraph 7 of the statement of claim, but denies the other allegations m the said paragraph. (6) He denies the allegations in paragraph 8 of the statement of claim. (7j In or about March, 1908, a private company, of ■which plaintiffs and. W. A. Read were niembers, was ..formed under the style of "Read Bros., Ltd." (8) The .Said company prior to May, 19C8, negotiated with defendant through W. A. Read for the purchase of the said leasehold premises for £45. The ■.term (unexpired) of the lease was 1 year and "4, months from Ist- April, 1908, and the said company, well knowing the terms of the lease, paid defendant £45, and the company entered into possession of the premises. (9) The. purchase money was paid by plaintiff to defendant for and on behalf of the said company. (10) The contract made by defendant for the sale of the lease is still a valid and subsisting contract-and has never been rescinded and the said corn-any or their tenant, W. A. Read. (11) "The defendant denies that he made any mutual representation as to the terms of the said lease or otherwise and. says that if plaintiff were entitled to rescind the contract (which he denies) the promi&es are. now. in the possession of W. A. Read either on behalf of the said company or as a tenant of the 'company and plaintiff has never offered and is" unable v to restore.possession of the premises to the. defendant.

Mr Hutchison, for plaintiff, briefly outlined the. case as above and called James T. Muir, business agent, of Wangahui, the plaintiff, who stated defendant was iii occupation of office in Rutland Building early this" year/ He called, at Milliard's-o;ce at'CalgetyVand told him that a company called "Read 8r05.,, Limited", had fallen through, and said ...-that if Read could not-cdm-P^e_.t% -lease he (fitness) would take it; - Defendant said" he had■■-.■ 2£;. years' lease to so yet. Millward told him the rent Witness was to pay £45 for the goodwill. Millward left several notes at witness's office and rang.him up about the matter. : Eventually, he went and saw defendant on 7th July, and he said the Public Trustee would not accept W. A. Read as a tenant., Witness gave defendant a cheque for £45, and wrote out a document (produced).' Witness gpt a receipt from Millward a day or so after. He rang up Millward about ths lease, as he had heard something Mill ward said witness could see a copy of the. lease at Barnicoat and Treadwell s. Ross, a clerk there, said he could see the lease if he paid £7 10s. He did not see the lease, but went to :tho Public Trustee's agent and saw he lease and found same only for 15 months more. Witness then *sn w his solicitor -aitd a Iptter" (produced) was sent to Miliward demanding the return of the £45 paid. Other correspondence passed (out in). The money "was still owing. Witness had been put to loss of time, disbursements and claimed in addition to the £45, £15 damages

.Cross-examined by Mr Tread well: lhere was a company consisting of Messrs Mcßeth, Morgan, Muir, and W. .A-. Read,* formed early this year. The object of the Company was to take over the land a.sr'~ ny business of W. A. Read, and of that company W. A. Read was appointed managing * director and witness secretary. When the company was,formed Bead looked round for an office. Read took the premises over on behalf of the company from defendant. W. A .Read negotiated the matter. Tho company's name was on the window of the office on 2nd April. Discovered between 9th and.. 23rd April that it' was •not desirable to go on with the coti- | paiiy. In the ordinary course witno's and two directors would sign cheques. -Cue company were agreeing to pay £45 tor the premises. Remembered Millwarcl seeing him about a week aftethe company took possession. Mill-' ;-y.ar.a did-not tell h^m that Bead said lit, <M_uir) was. to- pay Millward the £45 .)™ ness not remember sayinc''That's all right. MillwarJ. Don't bother about it; I'll see you got tinmoney." Millward was not coiist-mtiy "sking. for payment prior to 7th M:iy. Ho .did ask after he -(witness) had premised to take the place, after the Pubhe Trustee had refused W. A. Read 'not Read Bros., Ltd.) as a tenant. Witness saw Millward several times af tev this. Defendant did not say the thing had gone on long enough an i ought to be settled. Witness did not ■say he had not seen the lease yet. Millward never said that he thought thn term was 2 years and that witness could see lease at Barnicoat and Trea-1-well's. These conversations were not prior to 7th May. Asked Ross if he could see tho lease, and Ross said he could on payment of £7 10s. Ross did not say he was joking about the £■ 'iOs, and that plaintiff could see the lease if ho wanted to. Witness then went and saw the agent for the Public Trustee. Plaintiff again said this was not before 7th May. Plaintiff saw dofondant on 7th May. May have told him he had come to settle matters. Millward, did not tell witness then that the Public Trustee, had refused Read, and that ho (Muir) could take lea?o in his own name. Defendant repsafced that the lease wa^i for 2 years or thereabouts. Witness paid £45. knowing Read Bros. Ltd., or W. A. Read were in occupation of place on 2nd April. Read Bros. Ltd. was formally wound up. Had a heated interview with defendant. Millward did not say then he could *=cc the lease at Barnicoat and Tien dwell' <s office. He claimed £45 and £15 damans.

The £15 was made up for loss of tinie. Presumed his time was worth something. There were ccsts in the other Court also.

Mr Hutchison: Have been asked a lot more questions here than in the lower Court.

Certain questions asked wero quoted and witness said he was not asked the same in the lower Court.

From 23rd April thought Read Bros. Ltd. were out of it. W. A. Read bad induced the formation of the company, which was afterwards dissolved through wrong representations being marlo, \V. A. Road taking over all liabilities. Was sure Millward has stated the term to run was 2£ years, and he paid £io for that term. Would not pay that for 15 months. Heard Millward "swear in the lower Court that he knew, prior to seeing witness, that his term was only 15 months.

No such statement was ever made to plaintiff. He had never been an ]>ossession of the premises.

J. D. W. Mcßeth, of Wanganui, solicitor, said he was one of shareholders m company, of Read Bros., Ltd. Th?s first meeting was held at his office. The object of the company was to take over Read's land agency business on certain representations, which were made. Hie first meeting was on 9th April. W A. Read was managing director, and he suggested moving to .Mr Milliard's office which.he was taking. The name of "Read Bros." was put up on the window. Was not aware that the company applied to the Public Trustee for the place. Witness explained tho position of the company. Read had to give security to the preference shareholders, and it was afterwards found that Read could not find the security and the company ended for all practical purposes. The second meeting was on 23rd April when the company agreement was cancelled. The auestion of the Dremisos was never discussed. It was understood Read should carry on the business in the premises and that the word ''Limited" should be taken off the window. Witness did not know whether Millward was appointed auditor of the company. Muir came to witness, and ho telephoned to Millward on Muir's instructions, and asked.him the length of his lease in Rutland premise. -JMillward replied that he thought he had 2£ years to run. at all events ft was over two years. Witness said from inquiries Muir hiad made it appeared lv> only had 14 or 15 months. Millward said a renewal could be arranged. To Mr Treadwell: Muir had come to see him about the assignment of "the lease. Then witness rang up Mil-ward. He would not swear this "was after Muir and Millward had had a row. Did not tell Mill ward he had treated Muif badly. Would-be inclined to contradict Millward if;"he said the telephone conversation was before the row.

To His Honour: Saw Mr Muir later on and told him the lease could not be renewed.

To Mr Hutchison: The d'fference was a material one. ' •

To His Honour: The lease had a good will and was worth something. The front' office was small—it might let for £20 to £25.

Thomas Say well, local agent for the Public Trustee, said the premises in question were let to C. F. Millward at £91 per annum. Millward applied for a transfer of the lease to Read Bros. Ltd., which was not favourably entertained by the Public Trustee.; The application was a written one. W. A. Read and Millward had called.to see l'im' before. Remember Muir coming afterwards. Could not say exactly when —it might have been in May. Witness told Muir the real position of matters. To Mr Treadwell: The Public Trustee would not consent to Read Bros. Ltd. There was no application for a transfer to W. A. Read.

To Mr Hutchison: Millward wrote for Read Bros., Ltd. Heard nothing from the company*

The Court then adjourned at 5.45 p ; m. until 10 a-.m. on Friday.,