SUPREME COURT.

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

SUPREME COURT.

FRIDAY, SEPTEMBER 4. 1908,

Before His Honour Mr Justice ChaDman *

MUIR v. MILLWARD. On resuming at 10 a.m. to-day, the above case—the return, of £45 and £15 damage f or false representation—was .continued."" - -v, .

Mt-Hutchison;forvplaintiff, re-called h.o/nas Say well, who said he wrote to MiJlvvrard on 24th April rejecting Read tfros.,JUtd., as a-tenant. --.->^

; To, His Honour: The proposal was to ; accept Read Bros; Xtd. as transferees of 'theueasec: ■ :';-^ •-•■■■-.

TQ;;Mr^Hutohisdhi::Th9r©^ha<l been no application, for an extension of the lease

plaintiff ;! recalled "said, ifc was after ■forou April that thd arrangement- was , made: -The Public Trustee asked him if tfie.company of Read Bros. Ltd; was going on. Witness said if was riotv The Company dissolved on 23rd April. W. A. Read 3 of. Wanganui" commission agent, carrying under the style of Read Brothers; said -that early r jn,the:vear he ,tried to form a Company- and one was : rewietered as "Read Brothers. Ltd." Witness was to be managing director. He saw Millward as to offices in his occupation Mill-ward said the lease had 2$ years to run. Read Bros., Ltd. moved' into tho premises. On 93rd April the Company fell through". Witness p^ut up the name Read Bros., Ltd., as "managing director, about the beginning of April and it was taken off on 24th. Witness was in possession after and was so until Jatoiv.

To His Honour: Neither party would accept lent. None had been" paid. Read Bi-O|,,Xtd... had, been applied tr> for the rent fT 6 ha-1 offered to pay both Muir ond Millwa-d, but they, srefused. ■ >~v ~To Mr MiHwardr.MieHt have been in i r«,« when he say Millwardi who ask°<l.*l2o at first : and then asked £50 »?•« '•w; ls••■a-ft*"*rards reduced to £45' Millward told him he thought the lease had 2i years with a right;"of renewal, but afterwards said, there was no rerS L Wf^ Yard to^ him to%L ffe were unable to see it McTansh, Millward's clerk, came and

i* ?h Wr ">st boforo lst April, pre'ion, . net dM°, mf" 5' t!lkin? P°ss<^»->- TOt . . S^tK^f^^ .■•-. m. Hie word "Limited" was taken off g^ung m the premises, and Mui*-' ooiSw^ 1" Hutchis ?n; Muir said witness could stay on as his tenant if he liked tors of +^ r th Was chs»™>n of directtors of the Company. No solicitor was^ appointed. no authority to let for Mair Did not tell any of the Com!pany whaVMcTavish had .told him. Ihis concluded plaintiff's case. Treadwell/for the defendant, asked for a non-suit. He drew, attentionto the statement .of claim, paragraphs^ 7 and 8, and said it was difficult to see - on what grounds the action was based Jt seemed to be an action on fraudulent : representation to recover purchase money. The action arose from theagreement Muir made. Counsel referred to certain points m the evidence al~■ * ready given. The .arrangements madeby Kead Bros. Ltd. were continued^ Muir had said he would take the placeit a transfer was refused to W A Read (not Read Bros. Ltd.) No trans--tor had ever beon refused to W A Road himself, although a transfer had' I'een refused to the Company. W. A.. Jtead s poreession was Muir's possession. Miiir said in his memorandum ho wastakmg the place from Ist April. Mr" MclJeth had said, when the dTfsolution ot the Company was taking" place, on Mr<\ April that it was arranged Read"" slioiild stay on in the place. Why did ' Muir not say t© was taking the place— from 24th'April as he had no connection with the Company? Read's evidence showod that there, was no falserrepresentation as to the term made byMiLlward. Counsel referred to authori--ties to chew where there is a contract even induced by fraud/, the contract i^not void but voidable. The plaintiff^ could sue for a recission of the contract-' and a Return of the purchase- money.--if he treated contract as existing he^ could sue for, deceit and for dama X p Sr and not for the purchase moiriey. Milllward wa§ jjraotically charged > with de-^ 1, /* c ,Collt ended that no damages^ could be claimed No evidence had beea^. given as to what damage had been incurred Plaintiff had hot eslabUsbed? any wilful fake statement by Milliard:: His statement was merely an innocent - misrepresentation. His Honour eaid he did not feel dis— posed to deal with the non-suit then and would take the evidence for - itfe* ' defence. ■ ; .:.■

Mr Treadwell, for defendant, thencalled Charles Francis Millward, of Wangairai, shipping "agent, defendant, :." who said he held a lease of the premises^ inrv5 uestlon ' wnieh. runs out in July.-,--T*V r Rea<l saw llim at>out the middle^ of. March about his office and wanted:"'' *J know.if Read Bros. Ltd. could-gfit.-. it- The price was discussed, £50 wasnrsfc mentioned for fittings, etc., and?" goodwill. 'Hie fixtures, etc.. would be*-worth-£2O to £25. Read said he would " see Mcßeth and let him know. RWuT~ returned .again and said they would 1" take the place at £45, and witness said-" he would accept. He told Read thelease had about two years to go, ands? would trtl McTavish to find out exactly.;. Read came and told him he had seeitMcEfeth and things were fixed up. Thesrtook possession on 2nd April. Did not get his money then. Witness saw Read?" a week after and asked him for ar cheque. Read told witness to go andT sco Muir, who would fix it up. Mr Hutchison objected to this cvi— den^co as to conversations with Read?" when Muir was not present. . , His Honour said in a case of fraudT any evidence of bona fides could beY to repal the charge. To Mr Treadwell: Went to Muir whosaid he would fix it up. Witness told?" him to go. to Barnicoat and Treadwell's-• and set-the matter settled. Muir didnot fix it up and witness asked him?about it again. Muir said he had not-" seen the lease, but it would 6e aIF~ right. Witness told Muir he ought tv. have seen the lease. Witness" neversaid the lease had 2£ years to run, but^ said two years or thereabouts. Witness^was under this impression until themiddle of March. Defendant repeated!^ that he never mentioned 2£ years atfr~ all. Nothing was said about Read at: this time. - Heard that the Public Trus— tee was not favourable to Read Bros.,Ltd. .Muir next came to witness's-" ofßce. He wrote out the document and' a cheque for £4.5,. The only conversation wa6 as to the Public Trusteeagreeing to Muir. Witness told hinrthe Public Trustee was not favourable— to Read Bros. Ltd. Muir told witness;to put it in his name. Witness wrote-* to the. agent of the Public Trustee accordingly On this date, 7th May, nothing was said about the term. Muirsaw witness in the street, a little-time-after and Muir accused him (witnessV of" having, "had" him. Hot words follow--ed. _ Defendant told witness it was his-■ (Muir'e) fault. He had a lawyer on therdirectors and it was not business at ~ all. Remembered Mcßeth ringing up*--within- an hour after thi3 interview^. Mcßeth said Muir was in a terrible^ Btato; about the way Millward hadT treated him. Witness replied he ought to be thankful he had not been treated?* worse; after, the way he had spoken in--the street....-.-. Mcßeth then asked the^term vof the, lease'and witness told hint it had about two years to run and they*ought.to have seen about .that longago. >#■• Defendant was honestly urideirthis impression all the time.T not v remeiiiber saying in the lower--Court; thjit /he knew before 'Ist' April that: leasefhad 14 months to^uri..: If:he didT" it was a mistake, because! he. was then^ under the impression there was twor yearsfto n;n ." ' ;'; '■-

[ To 'Mr Hutchison : Probably mightf X have^ipado statement referred to in tne--».: lower Court. The rent under the leased? was payable- quarterly. Would not be--....; sureiof the date he first saw Read. H^ " ; had a r 'letter from the Public Trustee declining Head Bros. Ltd., when Read wasJn possession. Between 24th April ande^"th May did not have a conversation** with" Mnir. He denied that any ar-- < rangfement was made with Muir, ornC ; that^he (witness) said there was 2£7 yearsto run. Did not suggest to;'Muir-"-to write anything. Witness got it typ&3F" .-'•• for Muir and wave him a receipt for the*; cheque. Had the quarrel with Muir— abous a week after this, and got a.. letter from Mr Hutchison a day after~ Muiir-went to.Mcßeth right away after— ■ the row. Believed he had two conversations with Mcßeth, one in the streets and/one on the telephone. He wast treating Muir as the - : Company". and'" knewe ntitKihe: to the contrary. Muir— arcused witness of having *'had?- him.l ' Muir eaid witness would have to return-m'-9lJ ta'Z*i of, rt- Hi<?h words passed^" rp.Mj^Treadwell: He was absolutelycertam the telephone conversation witfrMcßeth - was after witness's interview - with Muir on 7th May: ' - v r J^VMcT^J ish \ e^k ' ethnloyed by- ■- C. Fy Milliard and Co., eaid he.remem— bered Read coming to the office to see- - defendant with reference to taking overthe premises. Witness told Read he~ i thought ;the f "remieesi.would suit him, - ■ | and sai d he' thought Read could get-> -lease etc.. for £120. This, was iu~ -^Marcli, > Read comings(Cohtihaed on page 8.)