SUPREME COURT.

Hawke's Bay Times, Volume 16, Issue 867, 15 November 1870, Page 2

SUPREME COURT.

Saturday, 12m October, 1870. R. Foster v. T. 1\ Russell, [CONT£NUEI)J. Mr Lee then opened the case for the defendant. He claimed a nonsuit ou the ground that the point x was stated to be initialed in the declaration, whereas no initials appeared in the plan. His Honor could not grant a nonsuit on that point. Mr Lee submitted that there was no evidence as Jo which direction the boundary line was intended by the parties to take. He maintained that the mark ou the map could not have been made with Mr Russell's consent. His Honor said that Mr Lee, then, impugned the evidence of two witnesses. Mr Lee would leave the case with the jury. He thought it unnecessary to call any evidence. His Honor was proceeding to address the jury, when Mr Lee said that, on reconsideration, he had decided to call the defendant, His Honor : I do not know that J will allow you. —Well, go on. T. Purvis Russell, examined by his Honor, deposed : I remember the agreement in Mr Kinross' store. 1 saw the plan A there, hut have no distinct recollection of ever seeing the mark x before. No cross and initials were put on any other map. \ had another map with me, upon which I put a cross in pencil. His Honor asked if the witness had seen a mark made on any other map, to which he replied that the thing was so loosely and hurriedly done that he had no distinct recollection of anything connected with it. His Honor said that so far the evidence was only confirmatory of what had i already teen taken. ~£{o otjier map ! having been marked and initialed, the defendant was. boujad by the plan i\-.

By Mr Stedraan: I never put my finger at or near the point where the cross is, I have no distinct recollection of the mark being made.

His Honor said that it was now assumed that Mr Kinross had acted either in a fradulent or mistaken manner. In that case the witnesses should have been crossexamined about the map. By Mr Wilson: I understood the pencil mark on ray tracing to be the mark referred to in the agreement. J swear that I called the attention of the parties to that mark at the time I made it.

His Honor: Not one word of this was sought to be elicited in cross-examination.

Witness continued: My mark was twenty-five chains nearer Mr Foster's homestead than the mark in the plan A. I distincly called Mr Kinross' attention to iuy mark before the contract was signed. His Honor: When you repudiated the contract did you state as your reason lor so doing that the mark was in the wrong place ?

Witness ; I was not aware of the existence of that mark until after the action was raised.

His Honor ; Then on what ground did you repudiate the contract ? Witness : I did so in consequeuce of a little insult I received from Mr Foster. His Honor : So if I give a man a promissory note for .£IOO, and he afterwards kicks me, I am entitled to repudiate my contract ?

Witness: Mr Foster told me to keep my land aud he would keep his ; much to my surprise and disappointment. His Honor said this was not admissible, as it was not in the power of either party to repudiate the contract. It could only have been annulled by consent of both parties, and by another document of equal authority with the first. Even if Mr Russell's evidence were true —giving, as he did, the lie to. both Mr Foster and Mr Kinross —it would be no bar to the present action.

Mr Wilson wished to have his two first witnesses recalled,

His Honor said it was quite unnecessary. No cross-examination had been made relative to the matters testified to by the last witness. Mr Wilson pressed the application, and the witnesses were recalled accordingly. J. G. Kinross, recalled: I have no recollection of any mark being made on any other map. The plan A was the only one on which the agreement was founded.

R, Foster, recalled : I saw no mark made on any other map. I am certain no other map than the plan A was marked in my presence. The mark was made with a pen, No pencil was used at all, His IJouor said that even if the jury should entirely discredit the evidence of iVJr Kinross and Mr Foster, and believe in full the statement of the defendant, the plaintiff was still entitled to claim specific performance. Defendant's own evidence went to show that it was not on account of any fault in the contract that he attempted to repudiate the agreement; but for quite another reason —that he felt himself insulted by the plaintiff. With regard to the position of the point from which the boundary line was to be drawn, however, there was a decided conflict of testimony, and it would be for the jury to determine which point was intended by the parties. In endeavoring to repudiate the contract, the defendant had only supplied fresh evidence in its support. Mr Wilson summed up to the jury. Jle would ask them to pay no attention to the very rash statements of Mr Bussell, who at the last moment came forward and in effect charged the other witnesses with untruth. Yet Mr Russell admitted now that there was an agreement, and that there was a plan marked to show the extent of jand to be parted with. In that case, which statement was to be believed ? The plan A, produced by Mr Kinross, who acted as agent for both parties, was something feasible ; but who could believe that business men would found an important contract on a pencil-mark in a tracing, and such a tracing too, as defendant produced ? Whatever plan defeudant might have privately marked With his own pencil, the plan A was the one dealt with in the agreement. Again, in giving notice of the so-called abandonment, did defendant act as an honorable man should have do.ne ? Jf his statement to-duy was true, he would have said, " I have no desire to repudiate the agreement; on the son,-

trary, I am willing and anxious that it should be carried out; but there is a mistake. The boundary line is not drawn from the spot I indicated, and before carrying out the agreement I must have the correct line drawn." The real reason of this attempt at reason given by defendant himself-?—was that he had had a quarrel with the other party. Had it not been for the trifling omission in Mr Kinross' ofjice—-had the x been initialed and the line drawn, as. should have been parties would not have been Iqete to-day ; bnt the defendant, relying on these informalities, had tried to back out of his contract in this very shabby manner. His Honor said in this case the question had been raised as to whether evidence in explanation of an admitted deficiency in the document upon which the action was founded could be admitted. Some of this evidence he had disallowed ; but after due consideration he had admitted the statements of professional men as to whether the point given in the plan was sufficient foundation for the boundary laid off in the declaration. From the manner in which he had elicited this evidence, he thought it was not open t» objection ; if it was, it would be the dqty of defendant's counsel to prove it. The defence iu this case was twofold—first, that plaintiff had no case at all, inasmuch as he could not supply the missing boundary ; and second, that plaintiff's evidence was false, and that the point from which that boundary had been drawn was not the one agreed upon. Jn a case like this, of decided conflict of testimony, it laid with the jury to decide whether the plaintiff or defendant was correct. The evidence of Mr Kinross, who was totally disinterested, and whose only desire was to mediate between the parties, agreed perfectly with the account given by the plaintiff. If, however, they believed defendant in preference, they must still give a verdict for the plaintiff, and find that the boundary was not properly laid down in the declaration. Ju either case the plaintiff had good grounds to claim specific performance of the contract, The jury then retired, and after a short absence, brought in a verdict for the plaintiff on both issues. The following is a copy of the issues, with the answers as filled in by the jury:— 1. —Did the plaintiff and defendant enter into and sign the contract in the pleadings mentioned ?—Yes. 2. —Are the position and boundaries of the proportionate part of Block Ho. 6 in the declaration mentioned fully Bet out and shown in the plan annexed to the said declaration ? —They are.