SUPREME COURT.

Evening Star, Issue 3575, 7 August 1874, Page 2

SUPREME COURT.

CIVIL SITTINGS.

Wednesday, August 5. (Before His Honor Justice Chapman and a

Special Jury.)

Harding v. Campbell.— This was an action for specific relief, brought by Charles L. Harding, watchmaker, of Oamaru, against George Hyde Campbell, of the firm of Cal-' vert and Campbell, Dunedin, the object being to correct and reform a lease made on the 20tb December, 1867, between the plaintiff and defendant. The lease demised to Messrs Calvert and Campbell, for fourteen years, a piece of land described as being part of section 1, block XV, Dunedin, 115 ft long by 14ft wide. A bonus of LIOO was to cover the rent for the first ten and ahalf years, and during the remainder of the term an annual rent of L2O was to be paid. The plaintiff alleged that by a mutual error and mistake of lessor and lessee, the lease purported to demise 115 ft in length, whereas it should have been only 82ft. The defendant denied that the alleged mistake was mutual. The actual dimensions of the section as per Crown grant was 132 ft by 4lft. When the property passed into the hands of the plaintiff on the 16th January, 1868, it was described in the eonveyance as being 165 ft by 4lft, but out of this there was a reservation made in favor of a previous lease of part of the ground (80ft by 30ft, with a right-of-way of lift), made in 1862 in favor of one James R. Hood, for a term of twelve years. Mr Barton appeared for the plaintiff, and Mr Macassey and Mr Stout for the defendant.

Mr Barton having stated the case, and shown that the only issue was as to the real bargain, called

Henry Howorth, solicitor, who deposed that he became the assignee of the lease pro* duced, which was executed in 1862, and was so before the commencement of negotiations about the coal yard. It was 30ft. frontage to Dowling afreet, and 50ft. in depth. On the 21st December, 1867, the plaintiff requested witness to endeavor to lease the land, and he did so to defendant, it being agreed that the defendant should pay LIOO bonus for a lease of fourteen years, and L2O rental for the last four years. 'J he boundary of the c al-yard was exactly the same measurement as Messrs Gillies and street’s premises. Mr 11, Turton, who was articled clerk to witness at that time, prepared the lease ; he was now at Napier. By the parcels in the deed, a mistake had occurred as to the dimensions of the allotment. The defendant called witness’s attention to the error a short time afterwards, and he explained how it had arisen. «. >n the 28th December, the parties assembled in his office and signed the The question of measurement was never discussed. Witness was acting for both parties to the lease. When witness told defendant of the discrepancy in the lease, he said he was satisfied with the explanation. (>n two occasions the defendant instructed witness to apply to Mr Harding for a further lease of the adjoining section of the coal-yard. Cross-examined : The deed of settlement rated 16th January, 1873, was in witness’s possession at the time, ihe error arose in preparing the deed through confusing feet with links. The draft lease gave Messrs Calvert and Campbell 115 feet; the 200 links represented 132 feet. Witness did not have an agreement drawn up on the subject, as he never doubted the defendant’s word nor expected to appear in Court with regard to the lease. Witness wrote a letter on behalf of the defendant, offering L2O a year for the 17 feet adjoining his section.

The Court adjourned till 10 a.m, next day,

Thursday, August 6,

Harding v, Campbell.— This case was continued. >

Mr Barton read the evidence of Mr Hanson Turton, District Land Registrar for the district of Hawke’s Bay, from which it appeared that he (Mr Turton) prepared the lease, to which he had been witness. He never represented to the defendant that the 50ft disputed were referred to in the lease, and would have acted improperly if he had cone so.

John Donaldson, confectioner, deposed that he purchased an allotment in Dowling street, about five months ago, but had not taken possession. He applied to Mr Campbell for possession. A notice was read at the sale on behalf of the defendant, but witness was not sufficiently near to hear its purport. He understood she defendant claimed all the section, with the exception of 17ft frontage. Cross-examined: Witness purchased the land with his eyes open, knowing of the defendant’s claim. Charles Earl Harding, plaintiff, entered into the contract with defendant on 23rd December, 1867. Mr Hovvorth’s letter of 21st December, which bad be.n addressed to Oamaru, did not reach witness until some time afterwards. Messrs Calvert, Campbell, Howorlh, and witness were present at the interview on the 23rd December. .Nothina was mentioned about the dimensions of the land. The lessees pointed out that they would, bo at considerable expense in removing the reck adjoining the land, and that a lease for seven years would have been insufficient. Witness had no idea that the lease comprised any portion of Hood’s lease. He first became aware that the lease was erroneous on noticing an advertisement in the ‘ Daily Times ’ of 10th January last, when he sent a telegram to the defendant stating that the lease would have to be corrected. Cross-examined ; The settlement did not remain in Messrs Howorth and Hodgkina’s hands, but witness left the lease in their possession. He first became aware of the mistake in the lease he negotiated with Leek when Donaldson purchased the coal yard. Witness did not actually know the measurement of the land, but assumed his lease to be correct.

Mr Barton handed in several documents, an “r 18 closed the case for the plaintiff, Mr Macassey addressed the Jury at some length. Oeorge A, Campbell, of the firm of Calvert and Campbell, deposed that his senior partner died in 1868. Mr Flo worth called upon them on the 27th December, 1867, with regard to the disputed lease. They went to inspect the section, and when they returned to the office, the terms of the lease were discussed. They asked Mr iloworth about the dimensions of the land and the width of the right-of-way, and he gave the length as llott., and the width of the right-of-way 11ft. 4in. The plan produced by Mr Stratton was given to witness in November, 1869 and he took it to Mr Howorth. Witness informed Mr Howorth he found the firm had not been occupying part' of the land they wure entitled tQ. Mr Howorth said there must be a mistake somewhere, and pro duced some documents. He said Leek had originally only 132 ft, and had given a prior lease to that of defendant of 50ft, which he (witness) now possessed. Witness asked Mr Howorth what he was to do; the latter replying that he did net see what witness could do, as there was a previous lease granted, which he could not override. Witness said, ‘ ‘ But 1 do not thiuk this at all fair on your part, Mr Howorth ; you yourself granted us this lease, and induced us to pay the money to Mr Harding, and now are owner of the land which we ought to get.” Proceedings in the Magistrate’s Court were then being instituted. Mr Howorth after, wards explained that it wafc his derk, Mr

' r Urtoß, who had made the mistake. Witness then asked Mr Howorth how long his lease of the coal-yard had to run, and he replied three or four years more. The laud was at that time excavated. Witness never stated that he would waive his right to the --;3ft in dispute, as specified in the lease. Witness offered L 25 per annum for the frontage of 17ft, which was refused. Witne -s gave notice of his right at M’Landress, Hepburn, and Co.’a sale of a portion of the section. Cross-examined : Witness never understood that his firm employed Mr ‘ ©worth in the transaction with the plaintiff. In his letter to the auctioneers he stated that he objected to the sale of 20ft, hut afterwards withdrew the notification, having made a mistake as to the actual number of feet. He made a verbal protest against the sale.

Mr Stout then addressed the Court, and argued that the jury could not bring iu a veraict of mutual mistake. It was unreasonable to suppose that Messrs Calvert and Campbell, as business men, would have accepted the lease which stated the actual measurement of the land, and afterwards claim a less quantity than that stated by the lease.

Mr Barton having replied to the points raised.

His Honor summed up. It was evident that the mistake in the transaction arose solely from the parties having believed that the section comprised a quarter-acre. The question for the jury to determine was this ; what did Messrs Calvert and Campbell think they were buying, and what did Mr Howorth lease to them? Did Messrs Calvert and Campbell intend to take the piece of land repr sented as 115 ft long and 41ft broad ? His Honor thought it was imtqaterial in this case whether Mr Howorth was acting for both parties. If the solicitor or his clerk made any mistake, it did not diminish the plaintiff’s right to have that mistake corrected, provide! it was mutual, or, he should say, common to both parties. Mr Campbell was positively clear that the dimensions were mentioned, and there was no doubt he bad the deed in his favor. The question was ; did Mr Campbell understand that he was buying, and actiiklly buy, that residue next the coal-yard, whatever it might contain? If the jury were of opinion that he bought only the residue of that laud, then there was a mutual mistake between the parties. If Mr Cambell believed that he was buying the 115 ft by 41ft, the plaintiff would not be entitled to relief. His Honor had no doubt that, upon weighing the evidence, the jury would come to a correct conclusion upon it. The jury returned a verdict for the plaintiff, answering the following issue in the affirmative :—Was the lease to Calvert and Campbell in the pleadings mentioned exe cuted under a mutual mistake of fact on the part of the persons parties thereto ?