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COURT OF APPEAL

LAND DEAL SPECIFIC PERFORMANCE The Appeal Court was engaged yesterday in hearing the appeal ot' Thomas M'Urail, of long Acre, near Wanganui, fanner, appoKant, - and George Wil'-iam M'Caul and Charles Bower Collins, of Wanganui, solicitor, and William Woolveu, of Wanganui, farmer, respondent. On tho bench were His Honour the Chief Justice (Sir Hobert Stout), Mr. Justice Edwards, Jlr. Justice Him, and Mr. Justice Hosking. Mr. C. I'. Skerrett, K.C., with him Mr. CI. I'. Brown, of Wanganui, appeared for the appellant, and Mr, It. A. Howie, of AVangauui, for tho respondents. This was an appeal against a judgment of His Honour Mr. Justice Chapman, given in the Supreme Court, Wanganui, and the facts as set out in the claim in the Lower Court were as follow:—On August 7, 1918, M'Gra.l authorised in writing Ljwis and Co., of Wanganui, lhnd agents, to sell 55 acres of his property at Long Acre. On the following day Lewis and Co. entered into an agreement with William Woolven to sell htun M'G rail's land. On the same day M'Caul and Collins paid Lewis and Co. a deposit of .£IOO. After some correspondence alii the terms and conditions were, settled, except that it was proposed by M'Grail's solicitor that the use of the land as a market garden should be prohibited, to which Woolven declined to accede, when M'Grail's solicitors proposed that the prohibition should only apply Midi a further sum of ,£I2OO had been paid. This offer was accepted. It was agreed during tho progress of the negotint'ons that M'Gvuil should have a tenancy of the 'and on certain conditions. On September 2fi, 1918, a further sum of ,£IOO was paid to M'Grail, and a final pnyment of ,£IOO was to be made upon de'.iverv of possession of the land. Tho defendant eventually refused to complete and carry out the agreement, wherefore the plaintiffs claimed for specific performance of the agreement on the part of M'Grail, or alternatively compensation or damages amounting to .£ll3O 10s.; or alternatively without prejudice to tho above claims, return of the sum of ,£2OO. M'Grail, in his statement of defence, o'aitued that the. correspondence between the solicitor was the usual correspondence in an endeavour to express the form of the contract wliich the parties should ultimately enter into, and were not intended to bind either party. lie denied that there was a concluded settlement. Sl'Grail further claimed that there, never was any memorandum in writ ng of the agreement or contract sufficient to satisfy tho Statute of Frauds, and 'that there was no concluded contract for the sale of the land. M'Grail paid into court .£204 Is. to satisfy the claim for return of money paid.

His Honour Mr. Justice Chapman gave judgment for epeoific performance of the cciitrart to sell the land, with costs as if .£IOO were m dispute. The appeal -was against this judgment on the grounds that it was erroneous in point of law, and in matter of fact, and tile appoint arf<»d that judgment bo entered for him with costs.

In openi'ng for the appellant, Mr. Rkeirett-reviewed the evidence given in the Sunreme Court, and quoted numerous eases in support of his contention that apnellant was entitled to judgment. He submitted that after September 2(5, 1918, the parties reached an impasse. If there wap any subsisting offer there was no evideiice on which the Judge could have come to the conclusion that the offer was a continu ; ng one until February 21. There was n>o no evidence on which the Judge could find that there was part performance to take tho case out of the Statute of Frauds.

For the respondents, Mr. TTow'e submitted that a complete contract of sale was made o'l August 8, 1918. The existence of the contract did not depend unon the existence of a written contract, Tho writing was simply evidence of a contract and not th« contract itsc'f.

Afteir hcaiing Mr. .Skerrett in reply, the Court reserved decision.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/DOM19191014.2.9

Bibliographic details
Ngā taipitopito pukapuka

Dominion, Volume 13, Issue 16, 14 October 1919, Page 3

Word count
Tapeke kupu
663

COURT OF APPEAL Dominion, Volume 13, Issue 16, 14 October 1919, Page 3

COURT OF APPEAL Dominion, Volume 13, Issue 16, 14 October 1919, Page 3

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