SUPREME COURT.

Globe, Volume XXI, Issue 1769, 21 October 1879, Page 3

SUPREME COURT.

SITTINGS AT NISI PJZIUS. [Beforo his Honor Mr Justice Johnston.] The following is the conclusion of the case, Wright v. Wilson, the commencement of which appeared in our yesterday's issue : David Davis deposed to an interview taking place between plaintiff and defondant in 1876 relative to granting the lease after the bankruptcy of the plaintiff. T. F. Beale deposed to having seen a memorandum signed " W. W.," in plaintiff's possession about 1877. The document produced contained the contents of the memorandum. Mr Garrick admitted the memorandum and contents. William Wombwell Charters deposed to having been for several years in the employment of the defendant. Witness held a power of attorney to act for defendant in 1877. In December, 1877, defendant was made aware of the lease granted by witness to Wright, and of the cantents of the memorandum signed "W. W." Dsfendant said that the memorandum had been cancelled a long time before. The memorandum was brought to witness by the plaintiff in August, 1877, and placed on a file in the office of defendant. It could not be found subsequently. Witness wished to find it to show Mr Wilson why he had given the lease. In cross-examination by Mr Garrick, the witness deposed to the conversation taking place between plaintiff and himself. The plaintiff had told witness that Mr Wilson had agreed to allow of the land being purchased by him. This closed the case for the plaintiff. Mr Garrick applied for a nonsuit, and proceeded to state grounds for so doing. He should ask for a nonsuit, and if his Honor was against him then he would ask the Court to reserve the points. His ground was that the plaintiff had not fulfilled the conditions precedent. His Honor declined to rulo as asked by Mr Garrick. Mr Garrick opened the case for the defence, and called evidence. Wm. Patten Oowlishaw deposed that in 1877 the firm of Garrick and Cowlishaw were mortgagees of the property in Lichfield street. He was asked to join in a lease to Mr Wright, but declined until the matter was referred to Mr Wilson. Witness then detailed the production of the memorandum and the completion of the lease, with a clause to purchase at £650. The lease was signed by witness on the representation of plaintiff. The property was re-conveyed to Mr Wilson to save Garrick and Cowlishaw being made defendants in ' this suit. The purchasing clause in the lease was asked for by Mr Wright, and witness granted it as being best for the interests of Mr Wilson. On cross-examination by Mr Joynt, the witness said he was satisfied as regarded the memo., either by Mr Charters assuring him that he had seen the original or had it in his possession, and supplying him with a copy. Rev. O. Fraser gave evidence as to the transaction between plaintiff and himself as to the proposed transfer of lease. William Wilson deposed that in 1876 the plaintiff had an interview with him as to renewal of the lease held by him. Witness gave plaintiff a memo of agreement for a lease on the assurance that plaintiff was to communicate with Mr Fraser on the subject of the purchase of his interest, and if the matter were not settled in three days the memorandum was to be returned. Plaintiff came within the three days, and stated that he could not deal with Mr Fraser, and that the matter was all off. Witness asked him for the memo., and the plaintiff said he had destroyed it. The plaintiff then commenced to sell the building materials on the ground and turned the seotions into a garden. Witness left in August, 1877, for Melbourne, and never had any conversations with plaintiff between July, 1876, and this date. No suoh promise had ever been made by witness to plaintiff of the lease during that period. The witness then went on to state what had taken place between plaintiff and himself, in the course of which he made witness understand that he had no intention of going further, and that all negotiations were at an end. Some four months after witness returned from Melbourne he met plaintiff, and in reply to a question he stated he had had a lease for some time at £4O per annum from Mr Charters. Witness said that there must be some mistake as the rontal fixed was just half what ho had told plaintiff he should require. Witness said he should refuse to recognise it. In cross-examination by Mr Joynt, r the witness stated that the only object he had in giving the memorandum was to enable him to deal with Mr Fraser. He was quite prepared to give a lease to Wright, upon such terms as might be agreed to. His Honor pointed out that these two statements required reconciling, or Mr Wilson's credit might suffer considerably. He would give Mr Wilson an opportunity to explain the matter. Witness could not say what were the motives which actuated him in 'giving the memo. He had no conversation with Mr Charters on the subject of this memo, till the 28th of February. Charters told witneas that he had given the lease in connection with the memo. Charters must be wrong as to time when he said that a conversation took place between thorn in December, 1877, as to the memo. He gave the dates from memory. He took no steps at all in the matter after the termination of Mr Fraser's lease but taking a note of the dilapidation of the premises. He could givo no explanation of the reason why ho used the words " It has just come to my knowledge" on the 25th of August when he knew all the facts on the 28 th of February. His Honor pointed out that it was very strange that a man should not have gone on his property at once and ejected a man who was holding, as he alleged, fraudulently against his will. The jury would certainly ask for some explanation of this. In reply to his Honor the witness said that he believed that Charters told him on tho 28th of February he would find the memo, at Garrick and Cowlishaw's. He was first told by Mr Wright that he had destroyed the original memo. He never knew anything about the original memo, being in his office. His Honor pointed out that Mr Charters had spoken of the original document as having been on the file in the office of the defendant. He would now give the witness an opportunity of telling the jury whether he removed or caused to be removed the original memo, from the file in his office.

Witness deposed upon his oath that he had not done so. Ho had never seen the original since he had given it, As he was assured that

it had been destroyed he did not inquire about it from Mr Charters. He never heard nntil he heard it that day that Charters had filed, the memo, in the office, and that search had been mode ineffectually for it. This closed the defendants' case. Mr Joynt re-called the plaintiff for the purpose of examining him as to the evidence of the last witness concerning the destruction of the memo, by him. The Witness deposed that it was not true that he had told the defendant that he had destroyed the original memo. There was no mention of the return of the memo, nor did defendant ask him at any time to return it. He swore most positively that no application was made by him on the 16th of July for a lease, nor did defendant tell him that the terms must be raised as he had sold several quarter acre sections opposite for £15,000. He never told witness that he must cover in all the 99 feet of hiß frontage with buildings during the currency of his lease. Not one word of the conversations sworn to by the defendant had ever taken place. He had a conversation with defendant lasting over an hour and a half, but not a syllable of what defendant had said took place. He never told defendant that the terms were too high, nor that he must consider all negotiations as regarded the lease were at an end. It was not true, but a fabrication, that the defendant met him in February and told him that he had had the lease for some months. Not one word of what had been sworn to by the defondant had taken place. Cross-examined by Mr Garrick—The greater portion of the evidence given by the defendant aa to what took place after he returned from Melbourne was false. He took the memorandum as existing right through, and upon this he had got Mr Charters to give the lease, and Messrs Garrick and Cowlishaw to join in it. W. W. Charters, examined by his Honor— My conversation with Mr Wilson regarding the memo, took place three or four months after his return from Melbourne. He told defendant that the original had been put on the file, but had been loafc. Witness told him that a copy of it was at Messrs Garrick and Cowlishaw's. Ho told defendant that the memo, had been given to him by Mr Wright. Counsel on both sides having addressed the jury. His Honor summed up, and tho jury returned the following answers to the issues submitted to them : No. 1. Yes. No. 2. Yes. No. 3. Yes. No. 4. Yes. No. 5. Yes. No. 6. Yes to the first part. On the second the jury found that the agreement was in full force. No. 7. Yes. No. 8. No. No. 9. Wo find that the defendant did not give notice of the repudiation until August 13th, 1878, and in our opinion this was not within a reasonable time. Nob. 10 and 11. Withdrawn, being questions of law. No. 12. No. No. 13. Yes. No. 14. On this issue the jury found that the Chinese were in occupation of the land without the written consent of the lessor. No. 15. On this issue the jurv found that the insurance was not effected until June 27th, 1878.