HOUSE PROPERTY DEAL

Wanganui Chronicle, Volume 76, Issue 115, 18 May 1933, Page 5

HOUSE PROPERTY DEAL

AN AGREEMENT UPHELD SPECIFIC PERFORMANCE ORDERED ACTION IN SUPREME COURT An action for the specific performance o? an agreement to purchase a house property on St. John’s Hill was taken in the Supreme Court at Wanganui yesterday by Mrs. Louisa Sarah Totty against Arthur William Green (Manakau). His Honour, the Chic. Justice (Sir Michael Myers), presided and the plaintiff was represented by Mr. C. F. Treadwell and the defendant by Mr. C. F. Atmore (Utaki). The plaintiff called two witnesses, Messrs. W. H. Ward, rand agent, and Hector Christie, solicitor, to prove that an agreement had been signed and that it had not been revoked. The purchase price was £825. The defendant gave evidence denying that the document he signed was an agreement, and alleging that if it could be proved to be an agreement, he had revoked it verbally. His Honour accepted the evidence of Messrs. Ward and Christie and gave judgment for Mrs. Totty, ordering a specific performance of the agreement between the parties. Wm. H. Ward gave evidence to the effect that the defendant, Green called on him and said he was retiring as a schoolmaster and had decided to settle in Wanganui. He wished to purchase a house property, expressing preference for St. John’s Hill. After seeing several properties he expressed himself as satisfied with the plaintiff’s property. His idea was to make the property pay for itself. He would have plenty of time on his hands and was fond of a garden. He inspected a section at the bn-ck. as Mrs Totty said that probably it could be bought cheaply. He said he would be taking a trip overseas and would not actually require Mrs. Totty’s property for that time. He arranged that Mrs. Totty’s son could lease the property and arrangements were made to secure the rental. On August 27 he called on witness and said that Mrs. Green had looked over the house and grounds and he had agreed to purchase. Terms were agreed upon. Defendant had made an offer, rnd after starting to write an agreement himself, finally dictated it as it was typed. On August 30 defendant called on witness again and on witness’ suggestion both of them went to M r - Christie’s office. Mr. Christie endeavoured to persuade My. Green to vary his offer as to the purchase price. Mr. Green was not prepared to do that. It was the best offer he could make. Mr. Christie finally accepted it. Defendant mentioned that his daughter would have liked a more modern place. The defendant, himself felt that, with the expenditure of a certain amount of money, Mrs. Totty’s place could be made very comfortable. Mr. Treadwell: Was there any mention at that interview of a withdrawal of that offer? —No. Witness said he walked along the street with defendant and gathered that the daughter would try and influence Mrs. Green, as, being younger, she would probably want a modern bungalow. Defendant said that if it came to the point that his wife and daughter would not agree to what he had done he could get out of it. In any case the money was in Mrs. Green’s name. Witness replied that a definite agreement had been made and defendant surely 1 aad enough business knowledge to ! know that it was binding on both parties. To Mr. Atmore witness said that he did not have a signed authority to sell, but in conversation with Mrs. Totty previously she had mentioned she wished to dispose of the property. “Before leaving my office with Mr. Green I did not quote Mrs. Totty’s property to him,” said witness. “At her house Mrs. Totty mentioned that Mr. Christie with acting for her.” Witness did not know that he was acting for the mortgagee too. Witness did not see Mr. Christie until after the document was signed by Green and did not know anything about the mortgages on the title.

Mr. Atmore: If Mr. Green says that Mr. Chr:.-.tie said at that interview there were arrears under the mortgages and also rates, what would you say to that?—l have no recollection of anything being said of that. What did Mr Christie say about the price? Did he not say £825 was not enough?—He naturally tried to get more for Mrs. Totty. I would have liked to do so myself. You can’t recollect his exact words can you?—No. He thought it not as fair a price as might have been for a property of that type. It was not enough. Witness did not remember £9OO being mentioned. Green stuck to his offer and would not go a penny further. Green did not revoke the offer at th«,t interview. You are quite sure of that?—Yes, quite. Witness said that Mrs. Totty had not signed the document when Mr. Christie signed it, but so far as witness knew she had done so on the afternoon of the same day. Hector Christie, solicitor, practising in Wanganui, gave evidence regarding the transaction on which the case was based. Witness tried to get the terms of the offer varied, as defen dant was driving a hard Bargain. De fendant would not alter his terms, however, as he said his wife was not pleased with him for making them Tlere was no mention by the defen Isnt of revoking the offer. Mrs Tctty signer the agreement the same or*y, witness telephoning her to come and endorse his action. Mr. Green Jaw witness the next day and asked if there was any way of getting out of the agreement. Mr. Green mentioned the section at the back of this place and said that he would rather have that and build. Witness said it was a matter for Mrs. Totty to decide whether he (defendant) could get out of the agreement. Witness arranged to see Mrs. Totty, and as defendant was going to Palmerston, witness arranged to wait in his office for a telephone ring from the defen dant to ascertain Mrs. Totty’s reply No ring came. Cross-examined, witness said that he was acting for several parties in connection with the transaction. Witness satisfied himself that the £825 was more than sufficient to cover the mortgages. Witness’ main considers tion was for Mrs. Totty. The mort gagees were not pressing her. His Honour said that if Mr. Tread well was entitled to succeed, Then ho was entitled to speeifiv performance If Mr. Atmore showed there was no

contract, then the question of damages did not arise. Herbert James Duigan gave evidence to the effect that the value of the property involved was £775, as an ordinary selling proposition. Defendant’s Evidence Arthur William Green, the defendant, said that before the offer was signed he told Air. Ward that he would need some assistance in getting the mortgages transferred to him. Mr. Ward said to visit Mr. Christie, who was the co-executor, and he would cleat the matter up. The defendant and Air. Ward saw Mr. Christie immediately and the matter was discussed. That was on Saturday. Witness went back to Mr. Ward’s office and started to write out what he (defendant),was prepared to give. A memorandum was eventually typed. Then, on the following Tuesday, witness went to Air. Christie’s office and met Mr. Ward and Air. Christie. Air. Christie said that there was £BO more owing on th<> larger mortgage and £3O more on the smaller than Airs. Totty had stated, and also interest. Witness said, then and there, that he withdrew*his offer, as he found he could not finance it. Defendant maintained that the document he had signed was not to be an agreement, but something for Mr. Christie to show bis co-executor. Air. Treadwell: Do you seriously suggest, Air. Green, that you saw Air. Christie on the Saturday, when he has said already that he was out of town? —Yes, it must have been Saturday. You know what Air. Christie has said in Court?—Yes, there must be some error there. Air. Treadwell: The error is on your part.—lt may have been Alon day, but I don’t think so. In reply to His Honour witness stressed the fact that he was giving his evidence on oath. Air. Treadwell (to witness): Isn’t the whole crux of the matter that the money is in your wife’s name and she won’t let you have it, sb you cannot go on?—That is the position. Mr. Atmore (re-examining): I did not hear your reply to the last question. Witness replied that he had said that he could not finance the deal and therefore wanted to withdraw. Air. Atmore’s submission to His Honour was that when Green took his memorandum of agreement along to Air. Christie to sign, and Air. Christie had endeavoured to alter the terms of that agreement, that was tantamount to a rejection, and a counter offer. His Honour: Was not Mr. Christie’s action a negotiation for a better price? The whole thing hinges on a question of fact—whether that offer was accepted. Air. Atmore: I submit that, in law, there was a rejection and a counter offer. His Honour: I do not agree with you. I have already ruled against you on that point and I do so again. Air. Treadwell did not address the Court. 44 The plaintiff has applied for a specific performance of an agreement,” said His Honour, giving his decision. 4 ‘The defendant has raised defences which are entirely based on matters of fact. In the first place he denies that there was an agreement, and then says that he was induced to sign a memorandum that was not to be treated as an offer, and then he says that if an offer can be proved that it was revoked. The agreement has been proved and neither of the first two defences made out can stand. Now, with regard to the third, there is a conflict of evidence and I prefer to accept that given by the plaintiff. It follows then, from what I have said, that the plaintiff is entitled to have specific performance.” An order was made accordingly with costs on the lowest scale.