SUPREME COURT.

Globe, Volume IV, Issue 356, 3 August 1875, Page 3

SUPREME COURT.

SITTINGS AT NISI PRIUS. Monday, August 2. (Before his Honor Mr Justice Johnston.) His Honor took his seat in Court at 11 a.m. BOVEY V PYNE. In this case B. M. Bovey was plaintiff, and Arthur John Pyne defendant. The plaintiff, under a certain memorandum of agreement, entered into an arrangement to sell to the defendant the freehold farm occupied by him at Prebbleton. Two valuators were appointed to value the property, which valuation was duly executed, but the defendant failed to complete the purchase of the farm as set out in the memorandum of agreement, and executed by Messrs Charles Newton and F. Murray. The plaintiff, though ready and willing to execute all necessary deeds to perfect the title to the farm, was unable to got the defendant to complete his purchase. Therefore he claimed £SOO as damages for expenses, and loss incurred by him. The defendant denied all the material allegations in the plaintiff’s declaration. For the plaintiff, Mr G. Harper. For the defendant, Mr Joynt,with him Mr O’Neill. The following gentlemen were sworn as the special jury:—Messrs W. R. Browne (foreman), W. Day, S. S. Field, R. Wilkin,. H. Hawkins, Tipping, H, H. Hennah, H. P. Murray-Aynsley, E. G, Griffith, J. Beaumont, J. G. Hawkes, and J. Abbott. The following were the issues submitted to the jury:— ISSUES. 1. Was the agreement, as set out in the first paragraph of the plaintiff’s declaration, entered into between the plaintiff and defendant ? 2. Was the valuation in the said agreement made in pursuance thereof, as in the second paragraph of the declaration alleged? 3. Was the plaintiff on and after the ninth day of February, 1875, ready and willing, and has he always been ready and willing, to make out and deduce to the defendant a good and sufficient title to the freehold and leasehold land, goods and chattels in the said agreement mentioned ? 4. Did the plaintiff, before the commencement of this action or at any time, deliver or offer to deliver to the defendant a good and sufficient title to the freehold and leasehold lands mentioned in the declaration ? 5. Has the plaintiff been always ready and willing, and has he offered to execute all necessary and proper deeds for conveying and assigning to the said defendant the said "freehold land, leasehold lands, and premises, and did the defendant discharge the plaintiff from so doing ? 6. Did the defendant within a reasonable time pay to the plaintiff the amount of the said valuation, and has he neglected and refused to complete the said agreement ? 7. To what damages (if any) is the plaintiff entitled ?

Mr G. Harper opened the plaintiff’s case by reading the declaration and pleadings, and called the following evidence:— Robert Mitchell Moore Bovey—l am the plaintiff in this action. I identify the memorandum of agreement produced as that signed by the defendant and myself. I saw defendant sign it. I named Mr Charles Newton as my valuator in terms of the agree ment. The defendant employed Mr Murray aa valuator, They valued the property. X

was present with defendant while the valuation was being made. This was on the 11th and 12th January, the agreement being signed on the 9th. The defendant did not object to the valuation being made. We received the result three or four days after the 12th. Mr Newton told me about the valuation. I believe I received the certificate produced from the valuators. The total value amounts to £6217 19a lid. J asked the defendant to come and sign the necessary papers for the transfer about three or four days after the valuation was completed. Defendant said he would not complete the purchase; he would have nothing more to do with it. Mr Hanmer, who was acting as solicitor for both of us, had drawn up the whole of the necessary documents. I saw the defendant on the 19th January with Mr Murray, and asked him again if he would sign the papers, but he refused. I said, “What is to be done?” and he said “You can do what you please. I asked him if he intended to come and sign the papers, but he gave no answer. I then told defendant th at I should see my solicitor on the matter. I paid my valuator his fees for valuing, I think it was £lßl. I produce receipt for that amount. I told defendant I was ready to make out a title to the farm and was ready to transfer the whole in twenty-four hoars. The defendant said he would like to come on the farm on the following Monday. This was on the Tuesday while the valuation was going on—the last day of the valuing—before he knew the amount of it. The defendant knew the property, as he had been over it before. My family had left the house for the purpose of allowing the valuators to value the property. Cross-examined by Mr Joynt—On the 13th I knew the valuation of the freehold property from the valuators disputing as to a difference of £5 per acre between them. They told both defendant and myself that there was a difference of £5 per acre; there was also a difference of £l5O about the leasehold. I did not say to Mr Pyne that he should take Mr Newton’s valuation. I suggested to Mr Pyne and the valuators that the umpire should be called in, but Mr Pyne declined. The umpire was not called in. When I found that Mr Pyne did not agree to call in the third valuer, I persuaded Mr Pyne to accept my valuator’s estimate of £3O per acre for the freehold land. The valuators entered the value in the book. I agreed to throw in the crops. Charles Newton—l am a commission agent and valuator in Christchurch. I know plaintiff and defendant. I identify the agreement produced as one Signed by plaintiff and defendant and by Mr Murray and myself. We proceeded to make the valuation at the farm on the 11th and 12th January. The plaintiff and defendant went round the farm with us. The certificate of valuation produced is signed by us as valuators. I have since received my commission—£lßl 9s. Mr Bovey’s family had left the house for the valuation. Cross-examined by Mr Joynt—Mr Murray and myself differed as to the value of freehold. This difference continued up to the time that the parties themselves had agreed. This closed the plaintiff’s case. Mr Joynt contended that a nonsuit should be entered on the ground that there was no valuation at all according to the language of the agreement, the evidence showing that the valuers did not fix either the value of the freehold or leasehold, which was verbally settled by the parties in the suit ; the agreement being one under the Statute of Frauds, and therefore necessary that all the matters connected with it must be in writing and fully carried out, either by the parties or by their authorised agents. Mr Newton’s evidence proved that the valuators never valued the freehold property at all. The valuators simply wrote down the valuation of the parties, which was a variance from the terms of the contract, which was that if the valuers disagreed a third valuer was to be called in. His Honor said that he should hold that there was sufficient evidence of the valuation to go to the jury. After some further argument, Mr Joynt requested his Honor to take a note of his objection. His Honor would do so, reserving leave to Mr Joynt to move for a non-suit. Mr Joynt declined to call evidence. The learned counsel on both sides having addressed the jury, His Honor summed up. The jury without retiring from the box, returned the following answers to the issues;— No I—Yes. No 2—Yes. No 3—Yes. No 4—Yes. No s—Yes. No 6—No as to first part; yes as to the second. No 7—£lßl 9s.