COURT OF APPEAL.

Dominion, Volume 7, Issue 2139, 4 May 1914, Page 9

COURT OF APPEAL.

FARMER'S UNFORTUNATE POSITION

LAMENTABLE CASE, In the Court of Appeal on Saturday His - Honour Mr, Justice ' Edwards delivered judgment in the ease of Soarborough Wright v. John London, a loildmg mattor which His Honour' described as a very lamentable case. The Facts of the Case. Tho facta were that the plaintiff held a leaso from the rM-aiidant, of a parcel ot land in the Apiti survey district. The loaso showed that tlio land was under « mortgage from the defendant to the trust and Agency Company of Australasia for £1500. -There was a mir-ohas-ing clause, tho plaintiff contractile to buy the land for over £2100 on or before September 1, 1912, the date of expiry of tho lease. In May, 1&-12, the plaintiff instructed Oliver Noel Gillespie, a. solicitor practising in FciWing, to'act for him in the purchase from the defendant, and a notico in writing, prepared by Gillespie, was signed by the plaintiff and forwarded to the defendant, intimating that the plaintiff would purchase tho property at the ospiration of three months. The defendant instructed Messrs. M'lntyro and Murphr. solicitors, of Fcildmg, to aet for him, and a transfer was executed. The mortgage to the Trust and Agency Company was sent to tho Bank "of "Australasia in Fcilding, to be ha.iirl.ed <jvor on patmeiit of tho sum of £14.00 14s. 2d., then due fo tho company, and MTntyre and Murphy then intiniatcd to Gillespie that they were prepared, on behalf of the defendant, to settle, kit Gillespie informed thorn that tho plaintiff was not- then ready to complete., Wright teams of His Positjpn. The plaintiff had instructed Gillespie to raiso £1800 upon mortgage of the property to enable him to complete the purchase, and Gifcpio arranged with certain gentlemen, referral to as Gunii's trustees, to advance £1600 upon first mortgage, and with Mrs.. Prior to advance. £300 upon second mottgaatc- Gillespie then.' prepared and obtained the signature of tho plaintiff to a mortgage ot tho property to Guam's trustees arid produced it, with, two mortgages t*o Gunn's trustees from other persons over other properties, to- tho manager at I'eliding of tho Bank of New Zealand, and represented that-these throe mortgages wore complete securities', entitling the- plaintiff, and the other persons whoso names appeared as mortgagors, to payment of the Moneys expressed to bo secured by these instruments. 031espio obtained the payment of several largo sunis of money to himself, and he continued to make to M'lntv'ro and Murphy excuses for not completing tho transaction, but oyoiitually pressure ' from tho Trust and Amme.y Company resulted in M'lntyre aftd Jhirphy's writ- : nig to the plaintiff threatening proceed-' mgs against him and ho. than for.the first timo learned the position in which he had been placed by his solicitor's frauds, which had beeti rendered possible by the concurrence of tho defendant's solicitors in tho irregular maimer in which the matter had been settled. - Tho plaintiff's claim was for judgment for £1375, the-.amount of the. mortgage money dtte to tho. Trust and Agenpy Company, or, in tlio alternative, £1375 damages, or sucft ether relief as the Court might award, j

•Ths-crountl for Claim Against Lentfoa, In the com-so of his judgment His Honour said that it «*as plain, at all events, both by the positive evidence of Oillespio and ,the absejico. of all evideaco to the contrary by the piaintift', that Gillespie made,ho Use'whatever of the transfer executed hy the defendant to further his fraud upon tho plaintiff. There ivas, therefore, iw ground &f action against tho defendant. Jtr- Skefrott had. laid great stress Spoil the fact that, but for tho irregular way in which 31' In tyro and 31urpjiy coinrdetal the transaction with Gillespie, the loss to tho plaintiff could not have- occurred. This was, no doubt, true, and it was most unfortunate that tho highly irregular, though quito.htfaost, way "in- which those gentlemen conducted UnVtraiisa-c----tion should have rendered possible the commission of a gross fraud upon tho plaintiff. But, whatever clam this might give tho defendant against M'lhtys> and Mrirphy, it coxM give noijo to tlio plaintiff, to whom they o'Wed no legal duty. Least of all could it give ground for any claim against tho ' dftfe&dant, who was freo • from all hiarec ■ia the matter, both legally and morally. There must, therefore, bo judgment for tho defendant, with costs according to- the scale.

At 'tho hearing of the ease in Wellington, Mr. C. P. S'kerrett, K.C., with him 3lr. G. Samno!, repressb-4 the plaintiff, and tho Hon. I*, t-t. 1). B a) l K.C.. with him Mr. 11, Myers and Mr, H. 31'Iutyre, appeared "for the defendant.