SUPREME COURT.

Globe, Volume VI, Issue 655, 26 July 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS. Wednesday, July 26. (Before His Honor Mr Justice Johnston and a Special Jury.) The Court re-opened at 10 a.m. LORD V YOTTNGHUSBAND. For the plaintiff Mr George Harper (instructed by Messrs Izard and Bell, Wellington), with him Mr Izard. For the defendant Dr Foster, with him Mr H. Slater. This was an action for the specific performance of the purchase of a town section in Christchurch. The plaintiff entered into an agreement with defendant for the purchase of the town section in 1868. The plaintiff agreed to pay £4O down. for the land, pay over to the defendant the rents accruing from the buildings on it, and take up the mortgage existing over it in the Investment Society. The plaintiff gave four bills of exchange covering the amount of rent becoming due, but the defendant left the colony without giving the plaintiff a title to the property, and the bills were never presented to plaintiff for payment. The defendant did not return to the colony until June 1575, when he refused to ratify the agreement entered into. The defendant alleged that the plaintiff, who was a suitor for his daughter, had from his position in the family and his knowledge of the defendant's affairs, taken advantage of defendant not being in his right mind, and obtained his signature to the agreement. It was also further alleged that the defendant signed the agreement under the belief that it was a form of security for due collection of the rents. The plaintiff therefore sought for the answers of the jury to the questions of fact raised by the issues with a view to the framing of a decree for special performance of the covenants of the agreement. Mr T. M. Hassal was chosen foreman of the jury. Mr Izird having read the pleadings, Mr Harper briefly addressed the jury, recapitulating the principal facts of the case, and alleging that plaintiff would be enabled to bring evidenca to prove that the defendant was of sound mind when the agreement was en'ered into, and that plaintiff paid the consideration of £4O. Also, that defendant up to a certain point carried out the conditions of the agreement, so far as giving the tenants notice to pay rent to the plaintiff and transferring the shares in the Permanent Investment Society to him. Evidence was led by Mr Harper for the plaintiff to prove the facts set forth. The plaintiff deposed to having entered into the agreement with defendant. Dr Foster objected to this being received, as the stamp bore evidence on the face of it of having been cancelled in August, whereas the agreement itself bore date in September, After some argument between counsel, His Honor decided to take the agreement in evidence, Mr Harper undertaking to pay the duty and fine. The plaintiff then went on to detail the negotiations between defendant and himself as to the transfer of the shares in the Permanent Investment Association, and the payment to plaintiff by the tenant of rent accruing due, defendant signing letters requesting this to be done. The defendant left the colony in 1868, and he had not seen him until now The bills were ref used to be paid by him as the defendant had not carried out his con tract with him as to the purchase of the property. [A. great deal of correspondence was put in between several parties and plaintiff relative to the property.] Plaintiff was willing to forego his interest in the property under the agreement with defendant in favour of Mrs Younghusband on payment of actual amount out of pocket, Plaintiff was not at this time

an accepted suitor of defendant's daughter, nor had he been paying his addresses to her. Defendant when he made the agreement thoroughly understood the nature of ir. The defendant sent out a power of attorney to Mr Mountfort, to whom plaintiff applied to complete the contract. The defendant arrived shortly afterwards, and then the plaintiff was served with a claim by defendant's solicitor for rents received. Prior to this the plaintiff tendered, through the Bank, the amount of the bills given by him, with interest added. The reason why plaintiff would not honour the bills was that they were not properly endorsed, being endorsed by plaintiffs wife, but without any legal instrument empowering her so to do. He was perfectly willing and ready to honour the bills when properly endorsed. Plaintiff was quite willing to perform all that the contract bound him to do. In cross-examination by Dr Foster, the plaintiff deposed that the defendant gave him a receipt for £4O, which he handed to his solicitor—Mr Williams—in 1868. The money was paid in cash. Plaintiff resided with defendant's family for several months after defendant's going away. Charles Clark gave evidence as to the valuation of property, and produced a plan of same. He also deposed as to value of the premises in September, 1868, when, according to his valuation, they were worth £250 to £3OO. | Left sitting.]