DAY'S BAY LAND.

Dominion, Volume 3, Issue 810, 6 May 1910, Page 9

DAY'S BAY LAND.

HITCH IN A SALE TRANSACTION. INTERESTING CASE. • A hitch in a transaction for the purchaso of a section of land at Day's Bay led to a Supreme Court action -which was heard yesterday before Mr. Justice Cooper. Th'o action was brought by Alfred Norman Jones, dentist, of Wellington, against the Wellington Steam Ferry Company,. Limited.

Mr. D. 11. Findlay appeared for Dr. Jones, and Mr. F. G. Dalziell for the Ferry Company. The claim was for tho recovery of a deposit paid on a section of land.

Mr. Findlay, in explaining the facts of the claim, said that Dr. Jones had

paid a deposit of .£IOO in the course of a transaction connected with the Ferry Company's land at Ferryside, Day's Bay. At the time of the negotiations, Dr. Jones was about to visit Sydney, and he looked over three sections (Nos. 3, 5, and G, Block I, Subdivision 1), on the day before he left Wellington. The case was concerned with Sections 3 and G. Dr. Jones had been given to understand that both these two sections were available for sale, and, as he had not decided definitely as to which ho would purchase, the acting-manager of the Ferry Company (Mr. J. M. Samson) drew up a letter to him conferring an alleged purchase of .Section 6, at .£doo, and the letter went on: "If, on your arrival back in Wellington, you prefer Section 3, anil it is possible to transfer this section in lieu of Section 6, I will agree to this." Dr.. Jones therefore claimed that he was given an option to purchase Section 3, at the samo price. He had had, also, a, clear verbal agreement to that effect with the acting : manager. As against this, it appeared later, when Dr. Jones returned from Sydney, and announced a preference for Section 3, that that section had been sold by the Ferry Company, as long ago as November 29, 1905. Yet it would be abundantly proved, said counsel, that Dr. Jones had ontered 'into the contract (if any) because he had been led to believe that the company could transfer Section 3 to him, if desired. In this connection ho wished to point out that when the company represented (September 21, 1909) that they would sell either Section 6 or Section 3, they were not owners of Section 3. As specific performance could not be enforced, Dr. Jones was entitled to a refund of his deposit. There was no suggestion of fraud, but, even if it were an .innocent misrepresentation, Dr. Jones, in order to recover the deposit, without damages, need only show that ho had been induced to enter into the contract because of certain considerations, which (although possibly ma A e > V 1 i8 norauco bj , Mr. Samson), disentitled tho company to specific performance, and entitled Dr .Jones to a return of Jus deposit. He also claimed 8 per cent, on the deposit as from September

Dr. Jones, in evidence, stated thnt he was offered any ono of tho unsold sections on the. allotment at ,£4OO. Just prior to leaving for Sydney Tie took a flying visit to Days Bay to viow the land, and on that occasion the ferry steamer was de•tained at.the wharf, so that he might return at once. After his return from Sydney, he saw Mr. Zohrab, manager of tho company, at Day's Bay, and informed him that ho had decided to take Section 3. Mr. Zohrab.replied: "Oh, that has been sold for years." He (Mr. Zohrab) also said that Mr. Samson had made a mistake, and that Sections 5 and 6 should have been offered. Witness replied that he would not have deposited on Sections 5, and G had he known that, and he was still prepared to buy Section 3. To Mr. Dalzioll: .At the time of the transaction he was contemplating marriage, and he had informed the Ferry Company that he desired to buy the section lor.somebody else." His Horionr.' For> J th'e young lady? ""'' Dr. Jones: Yes, your Honour. (Langh-

t f j u tf h fV r °jj?j<* a minat:ion. Dr. Jones stated .that ho did not want to have an unsuitable' section forced upon him, Sl ™ply because he had paid a deposit. Mr. Findlay: Have you private means, Dr. Jones? Ara you wholly dependent upon your profession. .Dr. Jones: Not wholly. Mr. Findlay explained that he desired to get rid of any snggestion that Dr. Jones had been unable to proceed with the purchase. # Mr. Dalzioll: There is.no such suggest-

In etatins the case for the defendant company, Mr. Dalziell said that Dr. Jones had made his inquiries from a elork in the Perry Company's office, who had shown him plans of the sections, but who knew nothing -about prices. Later, Mr.' Samson went to see Dr. '.Tones, and the conversation was about Section 6 only. Dr. Jones, said, "I will offer you ,£<ibo for .Section 6." Mr. Samson had then stated that lie could not agree until the directors had approved of tho transaction It was then arranged that Dr. Jones should see the sections, and, after going across to the Bay, Dr. Jones said to Mr. Sampson. "I will tako the section, but I rather like Section 3. Will you give me an option over it?" Mr. Samson had replied, "No, I cannot do that, but if it is available when you come back, I will let you have it instead of Section 6." Mr. Samson drew up his understanding of Hie agreement, took the memorandum, and a receipt for £100 up to Dr. Jones, who looked through the 'memorandum, paid his deposit, and remarked, "That's all right,"

Evidence for the defence was given by Frank Moniaguo Hickey. journalist, previously a clerk in the Ferry Company's ofiice, John M. Samson, acting manager, Hugh Downes, caretaker for the company at Day's Bay. and Edwin G. F. Zohrub, manager of the company. His Honour reserved his decision.