DISTRICT COURT, HAMILTON.

Waikato Times, Volume LVII, Issue 8008, 13 September 1906, Page 2

DISTRICT COURT, HAMILTON.

WEDNESDiY. (Before His Honor District Jul--.) Kettle ) PHAIK V MISSES. A special jury of four is as impanel]-d in this case, namely M'S-rs li. I'arr (foreman), A. Kowe, J. S. Bjgecurabo aud J. Dalgliosh,

Mr C. L. MacDiarmid appeired for plaintitl aud Mr H. 6. Gillies fu' defendant.

Coucoil for the plaintiff paid that in January last his c'ient had entered into au agreement with Mr Harold Coop for the purchase of his farm at Ruakura, iufe simple and free of comtni-siou, at £6 17s (>d per acre on certain terms and conditions. of the purchase mon-y £290 2s was uc knowledged to have been paid, and tho balance was to tic paid asunder: £l2n Is on December Ist, I9of>, £240 2s on December When 25 per cent had pa'd, the purchaser was to have the right >f conveyance, exeeutinga mortgage for the balance. Thus Mr Phair became iqmtable owner, but not legal owner; the possessor of the titie deeds was legal owner. When plaintiff placed the property in the hands of Mr Langley Sbaw to dispose of, ou February IKb, he, with Mr Shaw and defendant visned the farm, and on return Mr Phair wrote out the terms under which he would sell, in brief, that for 10 days from dat»> he would keep open the effor for 335 acres adjoining the iiuakura railway station, at £1 10s 3d pur aero; terms £SOO cash, balance as in terms with Mr Coop. Counsel stated that in establish- : ing a contract dealing with interest in land, it was necessary to show something in writing and the signature of the poison with whom tho agreement was made. Verbal agreement was not sufficient, but sale of laud may be established from a series of letters or other correspondence, and in this case there was evidence of that character. Oa Februa-y 17th, Mr Missen wrote to Mr L. Sbaw wffering £8 15s, provided that the land was freehold, that the turniping was completed, that interest did not exceed 5 per cent., and that XSO deposit be paid. Defendant wished the cash payment reduced, and a wire to Mr Phair blicited the reply thut he must have jES'JJ cash. Further telegraphing and writing took place until at last an ollei of XSOU cash was accepted. The deposit was paid in to Mr Shaw, to be held in trust until the completion of the purchase. Then, on April 11th, Phair wrote to Mr Shaw, stating that if the bargain were not completed by the Thursday following, he would not forfeit the £SO deposit and consider himself at liberty to enter into other negotiations as the 1U days grauted had been exceded. There was receipt to Mr Shaw by Mr Phair for £SU, dated February 27th,with the proviso that it be returned in full if he was unable to complete the sale and give a proper title. This Mr MacDiarmid contended, constituted a purchase of property, It was admitted in the statement of defence that Missen was in possession of the property from April 4bh to May 6cb, and plaintiff when he left the house left for once and fur all. A few days after Missen took up the attitude that he would not complete the agreement because Mr Phair could not give a legal title j in other words, he thought that on paying £SOO he was entitled to get a legal title. His c.ient, counsel said, was still willing to complete the agreement on payment of the baiance of X'MO. This was not unreasonable, as the jury would know that it frequently Luppeued that a purchaser of land had to hold uuder agreement for many years, and tho action was purely one of agreement. He contended that plaintiff was ia a position to give a legal title when the agreement was completed, and he admitted that £SO had been paid as a deposit. They were now suing tor the £l5O balance, also foe interest at 5 per cent, per annum on tue full balance of purchase money, £2bSl ss, a3 from April 12. Mr MacDiarmid then lei the following evidence : CO. Pnair, pUintiif, deposed that on January 23rd, l'Jji'i, he Dad entered into au agreement with Mr Coop for the purchase of his farm at Ruakura, at £l> 17s 01, aud he entered into possession. On February llfcb, he placed the property in the hands of Mr Langley Shaw for disposil. On the following day he went out with Mr Missen and Mr Shaw to see the place, and oa return the option was signed. Shortly after this, he took his cattle away, and on April llth handed defendant the key. Defendant said that as he had had a bad sale at Tahiatoa, he wished 10U acres of the land retained by plaint.ll. After consulting with Mr Coop, witness consented to this. He understood that Mr li. Keeves, of Auckland, was acting as defendant's agent. The balance of the £SOO should have been paid before the end of March, the deposit of £SO having been paid previous to the key being handed over, interviews at the solicitor's resulted in plaintiff offering to close at his original offer, in terms of the correspondence. Defendant wished for a conveyance, dlermg a mortgage. Plaintiff was willing to do this on payment of the difference between his buying and selling price. Plaintiff himself could not get a conveyance for the next 18 months. His oiler was not accepted and there was no definite result of the interview. On April 29. h defendant dropped the key in his hand, saying "Here is something for you." Since then nothing has been done to the place, as he was afraid of prejudicing his uo=itiou. His horses were still there. He was ploughing for turnips when Missen first saw the property. Ho told defendant that the agreement with Coop was registered in Auckland. Cross-examined by Mr < allies : He knew when the payments were due to Coop. He did not say a word to Shaw or Missen about the two next payments He did not say the agreement referrjd only to a 5 per cent mortgage. He uid not bother about the matter as far as Missen was concerned, j To His Honour : He would swear ho did not represent that Mr Coop's agreement was only in reference to a five per cent mortgage. Hed'd not represent anything about the agreemear, He did not mention the payment -. By Mr Gillies. He was aware of the requirements of clause 2, relating to the p;.y neat of interest. Did aot expressly say v Missen was buying an agreement that d;iy. He considered Missen would be bound by all the terms of Co p's agreement. Had ha Irnown Missen was under the impression he was getting a conveyance for £SOO, he would have corrected him. The turnips were still on the farm, and no cattle had been ful on them. Vv itness, referring to bis notebook, read an entry that on the Friday, Missen had only that day became aware of the agreement with Coop. Witness bad made practicilly all the entries when he know the case was coming ou. There had been another diary, which was burnt at the fire which destroyed his house about six weeks ago. The entries produced had beeu copied from that diary. He did not make the entry referring to the cancellation because he had learnt of its importance. He did not know whether Coop would give him aconveyance on payment of the &5 per cent, of the amount. He did not know the ettects of clause 11, relating to the paying off of the mortgage, He admitted that Mr Gillies had asked whethor, if £SOO was paid by .Missen, ha would pay off Coop and give

Missen a Up denied that he hui mi: do uny promise to do this. He had paid £2l-01 for tho property, and Missen had purchased at i.':!!i;:i ',, Twi-ntydivo ! p.'r cent nf Cnnp's purcba e money wan £iiOo he had paid Coop XJ'.i'i, tho amount still noiiossiwy co cbtajn a conveyance being X Jit'. Mr Shaw'., commission amounted to X'io. After payiug that, if Missec spurchase was completed, he would have had about i:l2;} in baud from the -CoUUcish. This was not sufficient, for he would have had to wait five yeirc for a second mortgage to mature. A min would not accept an option unless he knew what the terms were. If he had received £S'M cash he would have paid off Coop's mortgage and got a conveyance as soon as possible. Win u he accepted the £SOU he certainly did u )t luteud to give a couveyauee, simply an agreement.

Ke-exaiuinod by Mr MaoDiariuid: The XbU'J mentioned should have been i!b2u, which represented tin difference between hid b* jyill y and culling price. Har Id Coop, farmer, of Hamilton, gave evidence tli t a day or two before Good Friday, irhau c.od Missen went to him and askei whether he wau ag.-eeabla to cut off 100 acres of tho farm. He agreed, uD condition that <me of the two erected a house valued atj^2oo. By Mr Gillies: On goins: to the farm on Good iriday, he found Missen living in the houpe. This closed the case for plaintiff. Mr Gillies, in opening his case, said there was never & written agreement between I and Musen j was man troughs h<> '

was buying one thing and the other thought he was buying another. la the correspondence there was no mention or iadicati »n to show that there wer • payments being made by £l2O next De-einh'r and £2lO en the following December, Regirding to the demand for £B9O cash, Conns '1 said it appeared that Phair was to h< -oie ;jrhit r as t > how iJoyj.'s agreement was to he read. There wan no indication t ; t ilvr.> was any agre-iuent with Coop except that the mortgage bore 5 per csnt. interest. Ihe i.--.uo was whether or no there was an agreement, it' ilnre was, it must necessarily b >ar upon the payment of £SOO, and that 5 oer cent, was to be paid on toe balance. V the contrary were the esse, plaintiff had no claim whatever on defendant. .Mr Gillies called. Alfred Edwin Missen, defendant, swore that Phair made no mention of the payment of ill2o or £2lO falling due on lut next and December Ist, 1907, respectively. The first mention of a mortgage was on February 12th, when he with Shaw and Phair went over the property ; he allied Phair about the mortgage, and the reply was " either <H or 5 p"r cent." The purchase by Bedford cune up, and no mention was made as to whether the land was tsken uud>*r agreement to purchase. He first became «ware of the payments being due on Good Friday. To His Honor: tie was told there was a mortgage at 5 pir cent., but ho did uot enquire the currency. io Mr Gillies: Had ho known that the payments were to be rmde, he would not have had dealings with Phair. To His Honor: He thought the property was Pliair's, but that there was a mortgage ou it. He was a firmer and had had previous transactions in bind. He was told when the conference took place in Mr Shaw's office the agreement referred to a mortgage to Coop. To Mr Gil!i63-. He consulted his solicitor on April 14th. He got the key on April sth from Mr Shaw, and started living in the house the following day. It was untrue that the key was handed to him on April 11, &o one was ou the farm when

he went on April sth. Occasionally he had one horse on the property, but no other stock. He lived there about three wee fa or a month, and got out as soon as he could get another house to live in. He wan willing to complete the purchase at £SOO cash had a mortgage been arranged; no term was arranged. Cross-examined by Mr MacDiarmid: Do not know whethor Bedford's purchase was for cash. Mr 11. Reeve was acting for him at the start of the transaction, engaged by Mr Shaw. Both plaintiff and defendant worded the option, which plaintiff signed. He thought the balance, after payment of the £SOO, would remain on second mortgage. Reexamined . He had no idea as to the profit being made by plaintiff. To His Honour j I'he property was first brought uuder his notice by Mr Shaw. He wanted 11 farm the land, He believed it was Phair's own property, and that he could give a clear title, the balance after paying the £SOO to be on mortgage. When asked about the term, Phair d.d not mention any currency. He could iwe.tr he did not know of any agreement between Coop and Phair. Ho thought there was a mortgage by Coop. He did not hear Phair say there was an agreement registered in Auckland. He thought the currency would be arranged when the matter was finally settled. Oi one occasion when he weut to Shaw's office, ho was told by Phair that there was a il iv in the title and that Mr Reeve, of Auckland, was looking into it. When he found there was some difficulty, he employed Mr Gillies. He was certain ho got the key from Shaw and not from Phair. At that tiui", had he obtained a good title, ho was prep,red to pay the £l5O, remaining after the i;SO deposit had paid, the balance remainin jat 5 per cent. Referring to the

letter written on April 11 by Phair to Mr Laugley bhaw, notifying that as the purchase hid not been concluded within the time spacified, he considered thy deposit had beau foifeitel aud that he was justified in making any other bargain if the matter was not settled by the following Thursday, Plaintiff, on Good Friday, asked whether he iuten iei the agreement to be finished, "Oh no!" was the reply, "there is something further." tie asked what the something further was, and the rep'.y was " Damages." Next day, he consulted his solicitor, and offered to piy the iJASO and complete the bargan, but cue olT;r was refused. Application for the reiuud of the -C3O deposit was ignored, and legal proceedings resulted in a nou-suit by the c.M. He left the firm on May 1, and rented a house in Hamilton Eist. It was untrue that the letter of April 11 was written be-

foie he took possession. There had bben some work done on the farm, such as triuimiug hedges, but he could not say by whom. He had never placed foot on it since handing over the key. Langley Shaw, land agent, at Hamilton, swore that Phiir assured him in the presence of Misseu thai the title was all in order, and to satibfy him said that recently he had sold fifteen acres to Bedford. There was no mention as to Coop's terms of agreement. Ho did not hear Phair say there was an agreement registered in Auckland, and he first became a >vare of tho payment falling due wheu in the solicitors' offices on Lister Saturday. He gave the key to Missen about April sth. He expected to be paid his commission if Pnair won the case; he looked to him for commission as he was the vendor.

Gross • exauiiued by Mr MacDiarmid: Did not know the lines on which the property was deposed to Mr Phtir. In previous negotiations with Mr J. M. McCarthy on the eaine property, nothing had been said beyond the payment of a deposit. William Missen, farmer, deposed that his brother weut to the ho..se on April 6ch. His brother had one mare on the farm; since he left thero were often twenty horses on it. John Taylor, farmer, res'ding next to Coop's farm, stated that during tho last four months there had been horses and cattle on the iarui at various times. Cross-examined by Mr MaeDiarinid : He could not say that the number of stock ou the farm had increased since Miasen left.

Gilbert Mayo, manager of the Hamilton house of Messrs Green, aud Colubrook, deposed that Missen gav6 an order for beds and mattresses between the 2nd and ■lth of April. His Honor here said it was overwhelmingly established that possession had been taken on April Gth, and witness stood down. C. 0. Phair, recalled by His Honor, said lie still believed lie was correct in stating he gave Misson the key on April llth. He wrote the memos iu the book produced from the dhry which was burnt, before the hearing of the case in tho S.M. Court. He did not know where Shaw got the key; he did not give it to him. His Honor . " Mr Shaw, whoro did you get tho key r" Mr Shaw:" Mr Phair gave it to mo in front of my otlice." His Honor to witness: Do you still swear that you gave Misson the key '< Witness : 1 believe 1 am right. After some informal argument between judge and counsel. Hie Honor said it was not a case for a jury, as a judge could more easily grcsp the facts adduced. It appeared to him that if there was a concluded and binding agreement the remedy as regards Phair was an action for damages ; if not Mi.-sen should receive his £SO back. Counsel briefly addres-ed tho jury. In his lengthy summing up, His Honor said if tlioro was not comploto unity between tho parties, tho Court could not frame an agreement between thorn, Ilia Honm placed heforo the jury tho following issues (1) Was there a concluded and binding agreement between plaintiff and defendant; [2) Did plaiutiil baud the key of the boose on the farm to defendant on April Gth, and under circumstances as sworn by defendant; (■i) Did defendant enter into possession of the said house on April.6th, as sworn bv him and other witm-bsea; it) Did plaintiff hand the key to d.-tendaut on the afternoon of April 11 tli;

(.;) if there was a lauding aud conclusive agreement between tho parties, did defendant thereby agree to purchase Phair's interest in the Coi p as,'ieenient, or was Mis-on to get a conveyance. Alter 15 minute's deliberation, tho jury returned with tho verdict: To No. 1, No; No. 2, Yes; No. 3, Yes; No. 4, N i ; No. o, No to the first clause, and in regard to the second that Missen oxpected to get a conveyance oil payment of £SOO. Mr-Gillies i». ived for judgment for dofou'lant, whi.-b was accordiugly entered with coats X 27 7s. At 6 p.m. tho Court adjourned till iO a.ui to-day. THIS DAY. In tho c*se Missen v. Phair, an action for the return of JBSO deposit paid on the UMU&ctioa winch, ww tne, of the

previous cross-action, a spechl jury of four, Messrs Dy mock (foreonn), F. Tonjrp, T. 'happel! and J. Murray, \v»s impanelled. Mr FT. T. Gillies appe .red for the plaintiff, and Mr C. L. MacDiarujid for the defendant.

After a fdrrt argument as to thn defendant obttiiain? a nonsuit on the ground that them was no agn ement between the parties His Hon-'ur ruled that this could not be Hntered, »s in equity and law the deposit; Bhould be returned. Mr MacDiarniid consentel to judgement, which was accordingly entered fur plaintiff, with COSta Xij 133.