WAR MEMORIAL SITE

Wanganui Chronicle, Volume LXXXIII, Issue 20012, 1 December 1927, Page 5

WAR MEMORIAL SITE

SECTION NOT A GIFT JUDGMENT FOR PLAINTIFFS. Reserved. judgment by his Honour Mr Justice Ostler has been given in the case in which William John Polson and Alfred Ernest Wilson claimed from Hopeful Gibbons the sum of £413 and interest for land on which the Durie Hill war memorial stands. Judgment was for the plaintiffs for the full amount claimed, with interest at 7 per cent. * The judgment was as follows: — This is a claim by plaintiffs against defendant, based upon an oral contract alleged to have been male between Mr Polson and Mr Gibbons, late in February or early in March, 1924. The plaintiffs were the owners of a block of land on Durie Hill. On March 3, 1920, they offered the greater part of the land, already cut into sections, for sale by public auction. Lot 1 was purchased bj Mr Bond, and lot 2 by Mr Cohen. The terms of the sale were 10 per cent, deposit, 10 per cent, in six months, 10 per cent, in twelve months, and the balance in three years with interest at 6 per cent. Both Bond and Cohen, before the end of 1920, assigned the benefits of their respective contracts to one Hogan. Soon after this the Wanganui County Council, the Gonville Town Board, and the Castlecliff Town Board endeavoured to join with the Wanganui Borough Council in erecting a district War Memorial. The Wanganui Borough Council, however, refused to join in the scheme and decided to erect a separate memorial for the Borough. The three local authorities decided, however, to proceed with their joint scheme and to erect their memorial on Durie Hill. For this purpose they agree! to purchase from Hogan lots 1 and 2, which he hc/1 under agreements from Bond and Cohen. On March 20, 1924, a formal agreement was entered into between the late Mr Meuli and defendant, as representing the committee formed to carry out the scheme, and Hogan, in which, for the consideration therein stated, Hogan agreed to assign his interest in lots 1 and 2 to Meuli and defendant. At this time the balance of the principal urder the original contracts was due to the plaintiffs, and the purchasers had been notified that interest at 7 per cent, would be charged on all principal not paid on due date. Conflict of Opinion. It is common ground between the parties that they had a conversation about tho War Memorial in February or March, 1924, at the Wanganui Club, but, unfortunately, there is a sharp conflict of opinion as to what was said at this interview. Polson’s evidence is as follows:—

“I asked him (Gibbons) how the War Memorial was getting on. He said not well, because he was having trouble with the borough, which was jibbing on taking its share of the cost. He said that he would be able to arrange it because the Gonville Town Board was going to take over the memorial, and was coming into the Borough, and if Gonville were taken by the Borough, it would have to take over the liability at the same time. For that reason he asked me to expedite a title so that he could get tha land in the name of the Gonville Town Board at once. He told me that he would see that I was paid. He led me to believe that he was running the thing himself without the committee, as they were too slow; that he was going to run the thing himself and that ho would pay me, but I would have to wait for the money. I thought an assurance of that kind from Mr Gibbons all that was necessary, and I asked him to se? my lawyer and arrange it with him; that I was agreeable. I don’t know the committee at all. I agreed with and gave credit to Gibbons alone.” Gibbons’ evidence as to what took place in the interview was as follows: “As to tho conversation with Polson, I did not remember that it was at the Club. I can’t recollect where it was, or the date. We mentioned the memorial. Polson said he would help it along by giving the balance of the purchase money for the sections to the Committee. I have not the slightest doubt about that. No payment was asked for either then or at any other time. Poison’s evidence as to what took place is incorrect. There was nothing to be gained by us in getting the title then. The Borough drew out of it before that.” Convincing Corroboration. If the matter had stood thus, without further evidence, I would have been content to hold that plaintiffs had not discharged the onus resting on them of proving the contract they allege, and that defendant had not proved his allegation of a gift. However, the evidence of Mr Barton, plaintiff’s solicitor, is such clear and convincing corroboration that I have no hesitation whatever in accepting plaintiff’s evidence as true. Mr Barton’s evidence is as follows:—

“Gibbons came to me about this land about the 4th March, 1924. He told me that he had seen Polson, and, as Gonville and Castlecliff had agreed to join the Borough (this was shortly after the poll had been carried), and the Borough had turned him down with regard to the War Memorial site, ho had arranged with Polson to give a transfer of the land to the other local bodies, including Gonville and Castlecliff Town Boards, so that when they amalgaamtcd the Borough would have to take the site whether they wanted it or not. He had arranged to take the transfer at once before the 31st March, and Polson had agreed to the transfer without payment of money' in the meantime, but he agreed to fix up with Polson later. I asked him if that meant that he personally would pay the money to Polson. He said: ‘Yes, but, as a matter of fact, I’ll probably persuade him to make a gift of all or a part of it before I have finished with him.’ ” In view of this evidence, which Mr Barton, in whom I have the utmost confidence, says he is certain about, it seems clear that defendant’s memory has played him false. It is true that Mr Barton has no diary entry of this conversation. The reason he gives for not having made an entry is that he was doing the work for nothing. He was, however, doing responsible work and handing a transfer of land without payment. Therefore there is good reason why the arrangement made and the conversation with, defendant should

bo impressed on his mind. This evidence not only confirms Polson’s evidence as to the contract made between him and defendant, but definitely disproves the statement of defendant that Polson had previously made a gift of the balance of the purchase money. Regular Accounts. The fact that every six months accounts have regularly been sent out by Mr Silk, who acted as secretary for plaintiffs in the matter of the subdivision also disproves that there was any gift made. The fact that these accounts were sent to the secretary of the War Memorial Committee instead of to defendant personally is, to my mind, satisfactorily explained by the c’reumstanees that Polson did not tell Silk of his contract with Gibbons by which Gibbons became personally liable, and upon the assignment by Hogan to Meuli and Gibbons, the committee had been entered as purchasers in the books kept by Silk. This was done in pursuance of a letter from Hogan. Although defendant denies he had the conversation with Mr Barton which Barton deposes to, he admits that he had forgotten the circumstances of any conversation wLh Barton. On the 14th July, 1927, plaintiffs, not having been paid, caused a letter to be written by Silk to defendant, enclosing an account for the balance on lots 1 and 2, for principal and interest. The letter contains the following words: — “Mr Polson desires mo to state that some definite arrangement must be arrived at in connection with this ac count. He has always been prepared to make a donation t-o the War Mem orial Fund, and would like to go into the matter with you and arrange a definite basis. Your early attention to this will oblig?.” Defendant returned this letter with these words endorsed on it: —“Wrong address. I am not tne secretary.— Hope G.” If defenadant had such a definite recollection that a gift had already been made of the moneys in eluded in the enclosed account, wh> should he say that the account had been sent to the wrong address? One would have thought that he would have at once replied that a gift had been made of the money three years before. As he was the only person present when the gift he alleges was made, he was obviously the person to raise the question. The fact that he made no mention of it convinces me that no gift was ever made. An Expected Gift. Tho fact that Polson’s name was included in the list of donors (for tho amount of the balance then due) which was published in one of the local newspapers on the 21st January, 1925 is of no probative value as corroboration of defendant’s evidence. No doubt, he fully expected, as he informed Mr Barton, that he would induce plaintiffs to make this gift to them, and possibly he thought that the publication of Polson’s name as donor would help in obtaining the gift. No doubt Mr Barton also thought that defendant would later succeed in obtaining a gift of the money. He would be induced to believe this by what defendant said on or about 4th March, 1924. This accounts for the impression left on Mr Watt’s mind when he settled the tiansaction with Mr Barton and received from him the transfer without being required to find any purchase money. After carefully considering the evidence given on behalf of defendant, I have formed the opinion that there is nothing in it to displace or to discredit the clear statements of Polson and Barton, and, therefore, I hold that in fact a contract has been proved that in consideration to plaintiffs transfer ring lots 1 and 2, as requested, defend ant would personally pay tho balance of purchase money due. Section four of the Statute of Frauds was pleaded as a defence, but Mr Treadwell admits he cannot rely ftn that defence, unless the Court should think that the contract was one of guarantee. In my opinion it was not a contract to answer for the debt default or miscarriage of another. It was a contract to pay personally, and therefore enforceable though oral There was no other legal defence raise* cd. The amount duo to plaintiffs down to October 3 last was £413 for principal and £134 17s 2d *or interest. Interest is claimed down to the date of Judgment.

I give judgment for plaintiffs against defendant for £567 17s 3d, with in-

terest on £413 at 7 por cent, per annum from October 3 last down to the date of judgment, with costs according to scale, witnesses. expenses, and disbursements.

The solicitors for plaintiffs were Messrs Armstrong and Barron (’•epresented by Mr Currie) and for defendant Messrs Treadwell, Gordon and Treadwell (represented by Mr W. J. Treadwell).