SUPREME COURT.

Globe, Volume IV, Issue 353, 30 July 1875, Page 3

SUPREME COURT.

SITTINGS AT NIST PRIGS. Thursday, July 29. (Before his Honor Mr Justice Williams.) The Court re-opened at 11 a.m. Special Jury Cases, MITCHELL V MARTIN. This was an action in which Edward Mitchell of Christchurch, auctioneer and commission agent, is plaintiff, and John Martin, merchant, of Wellington, defendant. The declaration alleged that a sale of land was advertised in the Lyttelton Times of the 17th July, 1869, by Mr W. D, Barnard, and that the plaintiff attended, and there bought one quarter-acre section, No 482, and paid a deposit of £ls 4s on the same, but that from that time has been unable to get a marketable title to the land. The plaintiff now claimed that the agreement entered into between the defendant and plaintiff for the purchase of the land should be specifically performed by the defendant, the plaintiff being willing to perform his part of the contract. The plaintiff also claimed from the defendant a good marketable title to section 482, and also that the defendant be ordered to pay all the costs of the action. To this the defendant pleaded that he denied all the material allegations. That at the time of the alleged sale the defendant was the trustee in bankruptcy of Wm. Bowler, and was not possessed of any other interest than that (if any) vested in the said Wm. Bowler before his bankruptcy. That after the sale the defendant was advised by counsel that the said land was not part of the said Wm, Bowler’s estate, and that neither defendant nor Bowler had an interest therein, because of there existing a certain trust under which certain other parties were entitled to the laud who refused to sign the necessary conveyances and deeds to give the plaintiff the marketable title he required; hence it was impossible for the defendant to carry out the specific performance of the contract as desired by the plaintiff. The case was submitted to the jury in order that their verdict on certain matters of fact might be ascertained, to assist the learned Judge in coming to a decision on certain matters of law affecting the consideration of the question of the granting a decree in the cause. The following were the issues submitted to the jury, a number of issues having been withdrawn, consented to a direction, or struck out, during or prior to the trial:— Did the said W. D. Barnard, upon payment by the plaintiff, hand to the plaintiff the paper writing set out in the declaration signed by the said W. D. Barnard, as auctioneer, for and on behalf of and as such agent for plaintiff ? This was admitted, the jury by consent finding “Yes.” Shortly after the said sale did the said W. D. Barnard render to the defendant an account sale in writing of the said sale ? Ad-mitted,-the jury by consent finding “Yes” so far as regarded the delivery of the account sale put in. At the time of such sale did the plaintiff know that the same was being made on behalf of the defendant as such trustee or otherwise ? Did the plaintiff refuse to accept the title shown by the said abstract ? Did the defendant, before any breach of the said alleged contract, offer to convey to the plaintiff the land in the declaration mentioned with such title as the defendant, as such trustee as aforesaid, had to the same, and did the plaintiff refuse to accept tne same ? Before any breach as aforesaid did the plaintiff, in consideration that the defendant promised and agreed to repay to the plaintiff on demand the deposit money paid by the plaintiff at the time of the making of the alleged contract in the declaration mentioned, agree to exonerate and discharge the defendant from the performance of the same ? Has the defendants been always ready and willing to repay the said deposit money accordingly. Admitted by consent in the negative, the jury finding no. The following gentlemen were sworn as the special jury Messrs E. A, Hargreaves (foreman), J. T, Matson, J. T. Fisher, Oardale, Tancred, G. Booth, C. R. Blakiston, Laurie, Delamain, Templer, M. P. Stoddart, and J. R. Browne. Mr Garrick, with him Mr Thomas, ap-i peared for the plaintiff. Mr W. T. L. Travers, with him Mr George Harper, for the defendant. Mr Thomas opened the plaintiff’s case by reading the declarations and pleadings. Mr Garrick then stated the case to the jury, and called the following evidence : Edward Mitchell, examined by Mr Garrick—l am the plaintiff in this action. 1 am the person named in the receipt produced. Mr Travers objected to this document as being insufficiently stamped, Mr Garrick said that he would have to pay the penalty, Mr Garrick proposed to ask what the term section 482 quarter-acre referred to ? Mr Travers objected, on the ground that it was not competent for his learned friend to produce evidence to secure patent ambiguity. His Honor allowed the question to be put, taking a note of the objection at Mr Travers’ request. Examination continued—The term refers to section 482 quarter acre in the City of Christchurch. The Wm. David Barnard referred to in the receipt put in was an auctioneer. The signature there is that of Mr Barnard’s clerk. Cross-examined by Mr Travers —I requested Mr Fereday in the auction room to complete the purchase for me. I had some further conversation on the subject of the land with Mr Fereday, and also with yourself. I knew you were acting as solicitor for Mr Martin. I asked you if there was any difficulty in getting my title, and you said there was no dilliculty in it at all. You advised me to bring the present action. You paid you had all the deeds, but you would

rot give thorn up until your bill of costs was paid by Martin. You never told me that there was any difficulty in Martin’s providing a title. You advised me to write to Duncan and Jameson, and threaten to bring an action unless I received a proper title. I said that it was hard that I should have to pay purchase money and not get a good title. You told me you would see me righted as far as possible. lam positive that you used the words, that there was not any difficulty in getting a title. This conversation was in June, 1872, I may have spoken to you prior to this. On the occasion you told me there was no difficulty in the title we were walking about the street. Mr Fereday told me that he could not get a title to the land complete, because several papers were not forthcoming. I acted on your advice at once, and wrote a letter next day to Messrs Duncan and Jameson. I do not remember the tenor of the conversation in 1871 accurately. The property has been rising in value ever since I purchased it. There is au agreement between the rest of the purchasers and myself that this action should be brought as a test action, in order to prevent the purchasers having to bring separate actions. I never made such a proposition in 1871, as that if a good title could not be secured, the contract should be at an end, and Mr Martin should repay my purchase money. You did not explain to me the difficulties in the way ; on the contrary, you have always told me that the title could .be got ; that you had the papers, but that some misunderstanding had occurred between Mr Martin and yourself as to costs, and you would not give them up. I last saw Mr Fereday in 1869 or 1870, when he told me that he could uot go any further as you had taken the papers away, and he was stopped. I do not kuow whether Mr Fereday was acting for the vendors on the occasion of the sale. I have never made any demand for the purchase money, I paid Mr Fereday some costs two or three weeks ago. I did not know that Mr Fereday bad gone so far as I found he had when he rendered his bill of costs. He-examined by Mr Garrick. The letter produced is the reply I received from Messrs Duncan and Jameson, and the other document is my letter to them. Some short time after the purchase of the land, Mr Charles Martin, Mr Barnard’s clerk, brought Mr John Martin, of Wellington, to me as the vendor. He said,'• I see you areoneof the purchasers of the town sections,” He then made a formal demand for the balance of the purchase money, but I said that I should be happy to pay the balance when I got a conveyance of the land, but that Mr Fereday said that there was some difficulty in doing so. Mr Martin said that it was all right, either Travers or Fereday had the papers, and he wanted to get the matter settled. I have never either authorised any one or made application myself to the defendant to return my deposit. [Letters read: Mr Mitchell to Messrsj Duncan and Jameson, and reply thereto; also, letter from Mr R. D. Thomas, dated December, 1872, to Messrs Duncan and Jameson, as solicitors of the vendors.] It was the wish of the other purchaser! 1 that the matter should be placed in Mr Thomas’s hands to commence actions. Richard Wm. Fereday—l am a solicitor of this Court, and acted as solicitor in a purchase of land by plaintiff from Mr W. D. Barnard. I prepared a draft deed of conveyance, and it was handed to Mr Travers as solicitor for the vendor, but I never received it back again. I applied for it, but did not receive it. Cross-examined by Mr Travers—l received several abstracts of title. The document produced is the draft conveyance I have alluded to. [Draft of conveyance put in. J I cannot say whether the abstracts produced are the same that I received. I had frequent correspondence with you on the subject of title. The letters produced were written by me to you on this subject. [Letters produced and read from Mr Fereday to Mr Travers.] I produce a letter from your firm to me, dated 11th August, 1869, forwarding abstract of title. [Letter read. | I believe that letter accompanied some abstracts of title. I had several interviews with you on the matter when I told you that you would require the concurrence of all surviving parties and trusts in a conveyance. I received a letter dated September 7th, 1870. [Extract from letter read.] I discussed the condition of the title with you on November 16th, 1870. At this interview you said you thought that arrangements could be made with surviving trustees with consent of other parties. You were to return my draft on your return to Wellington. I have a note to that effect. [Note read from day book.] I stated moat decidedly that I would not accept the title in that condition, as I considered it was not a marketable title. I think I was in Wellington in January or February, 1871. I cannot say whether it was on this occasion that I had a conversation with you on the matter of this title. I cannot say with any certainty whether I had a conversation with you in Christchurch in January, 1871. I was not aware that there was a son and a daughter of Mr and Mrs Bowler entitled under the settlement when I drew the draft conveyance. If I had done so 1 should have included them, I understood from you that the consent of the various parties could not be obtained, and that the title therefore could not be completed. I received no instruction from Mr Mitchell after the first. I produce letter of 12th August, 1870, from your firm to me. [Letter read.] I certainly did not consider myself justified, as Mr Mitchell’s solicitor, in accepting Mr Martin’s conveyance of the property. I acted as your agent in instructing Mr W. D. Barnard to sell, and handing him conditions of sale. I did not know until afterwards that Bowler was bankrupt. I produce two letters of the 6th and 11th July, 1869, from your firm to me, forwarding me conditions of sale, and also a memorial of bankruptcy re Wm. Bowler. [Letters read ] Speaking before that I did uot know of the bankruptcy of Bowler. I was under a mistake, as I must have known it from the letter of July 14th. Re-examined by Mr Garrick—l never had instructions from Mitchell at any time to vacate the contract. I refused the title. I supposed the matter was at an end, because I never saw my client again. I considered it my client’s duty to come and see me. I do not say I had a right to say absolutely I decline the title. I should certainly give my client the opportunity of taking or rejecting the title, and not consider it my duty to at once reject the title. I did not consider that I rejected the title, but only the evidence tendered of the title. John Martin—l am sou of John Martin, of Wellington. I know my father’s handwriting. I believe the document produced to be iu his handwriting. The accompanying document wag written by one Schwartz, a clerk to my father,

Charles John Martin—l was clerk to t William David Barnard, formerly an auc- t tioneer in Christchurch. The document now I produced came from Mr John Martin, the c defendant in this action. t Mr Garrick proposed to ask the witness to 1 what the letter referred as regarded the 1 items—“ Section 482, Cambridge terrace; 1 deposit £14.” _ 1 Mr Travers objected to the question. ' The document should speak for itself. < His Honor admitted the question, on the i ground that it was admissable to show the ■ items of the account, . 1 Witness—The item referred to is a deposit ( paid by Mr B. Mitchell, the present plaintiff, for section 482, Cambridge terrace. Mr Garrick now proposed to put in Mr Martin’s letter to Mr Barnard rendering account sales. Mr Travers objected to this being put in, as it was an account current between Mr Martin and his agent, having nothing to do with the case now before the Court, and not connected with the issues. If it was intended to have it in it should have been set out in the pleas. Mr Garrick contended that it was adraissable to show that the defendant had instructed W- D. Barnard to sell tbii section 482, as a confirmation of Barnard’s action by Martin. His Honor said that he would admit the document on the latter ground, taking a note of Mr Travers’ objection. Mr Travers reiterated his objections. The document had nothing to connect the plaintiff with it, and if the letter had anything to do with the contract, it should appear on the pleas. Besides this the date was a year after the transaction, and there was nothing in the document to show that it referred to the section forming the subject of the action. Mr Garrick now asked Mr Travers to pro duce copy account sales sent by Barnard to Martin. Mr Travers said that unfortunately the notice to produce had not reached him in time. Mr Garrick proposed to put in a press copy of the account sales. Mr Travers objected to this being done, as the press copy was not in the handwriting of Mr David Barnard, but in that of his clerk, and could not bind the defendant. Mr Garrick said that he proposed to show from the account sales that Mr Barnard had returned to Mr Martin an item sale of section 482, for £76, to Mr Mitchell. However, he had no objection to put the document in, and treat it as no part of the contract. Mr Travers then withdrew his objection. Witness —The section 482 referred to there is the one sold to Mr Mitchell. This closed the plaintiff’s case. Mr Travers, after the adjournment, opened the defendant’s caa 1 , and produced the following evidence. William Thomas Locke Travers—ln 1869 I acted as solicitor for defendant as trustee for the bankrupt estate of one Mr Bowler. As such solicitor I instructed Mr Barnard, though Mr Fereday, to sell four town sect ions in the city of Christchurch. I was informed by Mr Fereday that a sale had taken place, and that plaintiff bad purchased a section. Mr Fereday, as solicitor for the plaintiff, requested me to furnish abstract of title. In accordance with that request I forwarded the two documents produced, forming the abstract of title with the letter dated 11th August, which has been already put in. [Abstract of title put in.] I also received from Mr Fereday the letters already put in as exhibits F., G., and H. ; and I wrote to Mr Fereday the letters produced marked I. and J. After the date of the last letter from Mr Fereday, dated September Bih, 1870, I came to Christchurch and had an interview with Mr Fereday in November on the subject of the title to this property, having previously received the draft conveyance. I informed Mr Fereday that I bad en deavoured to obtain the concurrence of the other persons claiming under the settlement, but up to that time unsuccessfully, except as regarded Mrs Bowler. We discussed the question, and I held that a satisfactory title could only be made by the whole of the parties interested couch ning, Mr Fereday agreed with me that the deed of appointment following in the conveyance to the brother was fraudulent. I told Mr Fereday that it was the result of a bargain which could be proved. Mr Fereday, on behalf of his client, objected to the title or any title in which all parties to the settlement did not concur. I met Mr Mitchell casually, and he asked me why he could not get his title. I told him that there were difficulties under the marriage settlement which might be removed, but that it was difficult to explain the state of the title to a layman; but I promised to do all I could in the matter. In the following January I had occasion to see Mr Mitchell, who referred again to the matter. I told him that I had tried in vain to get the concurrence of the parties, there being two others besides those mentioned in the draft conveyance, and that I considered it impossible that any satisfactory title could be made without such concurrence. I suggested that the whole matter should be considered at an end, and that he should receive back his deposit money with any expenses he might have been put to. I told him there were others in the same position. He then said that if he could not get a title, the next best thing was to get back his money. 1 told him that on Mr Martin’s behalf I would see that he got back his purchase money. Mr Mitchell then said if he could not get a title he would accept my suggestion as the only solution to of the matter. I promised again, on my return to Wellington, to try to get the parties to concur in the deed, with the understanding that if I failed to do so, Mr Martin was to repay the purchase money, and the transaction be at an end. This suggestion emanated from me, feeling that without all parties concurred in the deed, no valid title could be given. I conferred with the parties on my return to Wellington, and the only one who would concur was Mrs Bowler, on condition that her life interest should be respected in the proceeds. Mr Fereday visited Wellington in January, 1871, and I told him what had been done, and I conceived the whole thing was at an end, as I heard no more about it. I then made Mr Fereday aware of the existence of the other two parties, of which he was not aware when he prepared the deed of conveyance, which made the difficulty greater. I heard nothing more of the matter until July. 1872, when being in Christchurch, Mr Mitchell spoke to me on the matter. I told him that Mr Martin bad employed Messrs Dm can and Jameson in connection with the affairs of William Bowler in Christchurch, He said in effect, that it was a great hardship that he should be kept out of both land and money. I told him that Mr Martin waa liable to him for breach of

the contract. I had not seen the contract then, I suggested that he should write to Mr Martin or his solicitors threatening proceedings. I never told Mr Mitchell that there was a good title to the property, because it was as rotten a title, as far as Martin was concerned, that could well be looked at. If I had done so, I should have been stating what was at direct variance with the correspondence between his solicitor and myself. I heard nothing more until December, 1872, when Mr Thomas wrote to Messrs Duncan and Jameson, and proceedings followed. No conveyance was ever tendered, nor was any draft conveyance to which Mr Martin was the sole party. This was the defendants’ case. Mr Travers briefly addressed the jury on the issues. Mi Garrick having replied, His Honor summed up, commenting on the evidence in the case. Thej ury, after a short absence, returned into Court with answers as follows to the issues submitted to them after the elimination and withdrawals, the number of issues being reduced to four : At the time of such sale did the plaintiff know that the same was being made on behalf of the defendant as such trustee or otherwise? No. Did the plaintiff refuse to accept the title shown by the said abstract ? Yes, Did the defendant before the breach of the said alleged contract offer to convey to the plaintiff the land in the declaration mentioned with such title as the defendant as such trustee as aforesaid had to the same ; and did the plaintiff refuse to accept the , same? Yes. | Before any breach as aforesaid, did the ' plaintiff, in consideration that the defendant • promised and agreed to repay to the plaintiff on demand, the deposit money paid by the plaintiff at the time of the making of the t alleged contract in the declaration mentioned, agree to exonerate and discharge the defend- , ant from the performance of the same ? No. The Court then adjourned until 10 a.m ‘ this day, when the case of Passmore v. Bank 3 of New South Wales will betaken.