COURT OF APPEAL.

Dominion, Volume 3, Issue 875, 22 July 1910, Page 9

COURT OF APPEAL.

A BIG MARLBOROUGH RUN. TWO BUYERS. An appeal against a recent decision given by the Chief Justice regarding a claim for the specific performance of an agreement for the sale of a large property in Marlborough was heard in the Appeal Court yesterday before Judges Williams, Edwards, t Cooper, and Chapman. The action was brought by Thomas Morland, farmer, of Eakaia, appellant, against Frederick Hales, Benjamin Coleman, James Brownlie, John Oliver, and Thomas Wilson, gentlemen, of Wellington, respondents. Edward Somerville, .sheep farmer, of South bridge, was also joined as a third party. Mr. George Harper, of Christcluirch, and Mr. T. Young appeared for appellant. Mr. C. ]'. Slren-clt, K.C. (with him Mr. H. F. O'Leary), instructed by Mr. J. J. M'Grath, appeared for respondents, and Mr. T. W. Stringer, K.C., of Christchurch (with him Mr. P. Levi), for the third party. The appeal lodged asked that the non-suit entered against appellant Morland on June 25 be set aside, and that judgment be entered for him, with costs, on the ground that the judgment was erroneous in so far as it directed:— (1) That tho equity of Somerville in respect of the contract made between him and the defendants was prior in point ol' time to the equity of the plaintiff in respect of the contract made between him and the de- , fendants. (2) That it did not appear by the evidence taken at the trial that Somerville did not know of the existence of the option given to the plaintiff of November 8, 1009. (3) That in the event of judgment not being so entered for Morland in the Court of Appeal then that' the judgment of the Court relating to the payment by Morland of. the costs of Somerville was wrong. Tlie cns« which was heard before the Chief Justice in March last was decided in favour of respondents. The statement of claim set out that they were owners of a property in the Wairau Valley, Marlborough, known as Birch Hill, containing 18,800 acres, and stocked with ealtle and sheep. On November X, 190!), tliev agreed to sell the property and stock to Morland for ,£37,600, and on November 18' Morland, in pursuance qf tlie agreement, paid over a deposit of JESOO. Before tlie expiration of the ten days from Kovcmhnr' 8, mentioned ill the agreement, respondents, without knowledge of Morland, entered into an agreement with E. Somerville for the sale of the property and stock to him (Somerville), and repudiated the agreement with Morland. Morland had tendered respondents j sum of .£11,500, to bo paid within one _month, and had applied to them specifically to perform tlie agreement. 'I hey, . however, refused to accept the sum, and declined to perform the agreement. Plaintiff alleged that lie was still ready and willing specifically to perform the agreement, and had notified defendants to that effect. He, therefore, desired the Court to order defendants' specifiall.v to perform the agreement, and to put plaintiff in full possession of the property and stock. Tho defendants ■ for their part denied that there had'been a binding contract, which would prevent a withdrawal of the offer, and the.v alleged that, prior to any acceptance by Morland, they did what they were entitled to do—withdrew the. offer, and sold the property to SomcTville. They alleged that before Morland accepted the offer they had, to Morland's own knowledge, sold the property to Somerville, thereby cancelling and rescinding the offer. Also, before they sold the property to Somervilje, either Morland or his agent had intimated that he did not intend to accept tho offer,.. They, admitted that Morlnndhad tendered the sum of .£11,500, but denied that it was tendered within the time set out in the agreement. When giving judgment, his Honour had said that it appeared that two purchases of the property hail been made, both in good faith. Tho question really was: Which of the two was entitled to have his bargain completed—either Thomas Morland or Somerville? The equities in tho casn, in his Honour's opinion, were equal, and tho person who obtained the first valid contract, namely, Somerville, was entitled to have the property conveyed to. him. In the proceedings yesterday, Mr Harper said that the question for the Appeal Court now to decide was whether his Honour the Chief Justice was correct in deciding that there were really tiro rival equities in regard to tho purchase—that two contracts were entered into. It had been decided by his Honour that the two tquilleii .-(veife rfbsuluf-ely piuiil, that the equity in respect of Somerville's contract was the first in point of time, and that, therefore, Somerville'was-entitled.to succecd. Tho argument now submitted for Morland was that the equities were not equal, and that Morland had a prior equity. In tho opinion of counsel, the option was given to Morland "for valuable consideration," and for that reason it could .not lie revoked. Tho question was whether Morland completed a contract to buy before Somerville agreed to purchase. Mr. Stringer contended that no binding agresment had been entered into with Morland. Tho, owners contracted with , him only to keep the offer open for ten days at least. f Legal, argument, was not concluded, and the Court adjourned until 10.30 this morning.