SUPREME COURT.

Hokitika Guardian, 22 September 1925, Page 4

SUPREME COURT.

AN OKARITO CASE. At the Supreme Court. Greymouth on Saturday, Joseph Pialilert claimed front John Lewis Sweeney the sum of I C.yj'2 13s 8d damages for breach of agreement, alleged by plaintiff to hare been entered lietween the parties in respect, lo an hotel at Okarito. South Westland. Loss of wages was also

included in the claim. Mr Joyce appeared for plaintiff, and .Mr Murdoch and Air Park for defendant. Gen.ld Joyce, managing clerk in the office of W. J. Joyce, solicitor Grey-mouth. gave evidence to the elfect that the agreement between the two parties was drawn up in his prepresence. , . . Joscull Pfuhlert. the phinml! stated that lie w;ts an engineer’s assistant ut present] residing in Greyomittb. Plaint ill' stated that he had seen an advert i-oment in the -‘Grey l.ivcr Argus” to the effect that the Okarito Hotel was for lease, with the. opium „f purchase within twelve months. Plaintiff put in a tender. of rung JGPJOO cash. Air Sweeney said he would not accept that price Plaint il made another oiler which defendant -ied. Sweeney then ollered plaintiff the hotel at thirty shillings a week, with the option of purchase within twelve months at. £UMh Plamtilf a "reed to lake over all lands and properties and when the agreement was subsequently drawn up. all stock lm!d by Air Sweeney was included in tin- lease. The agreement was signed plaintiff offering defendant twelve mouths rent in advance. Delete ant then introduced plaint ill tn Mi ~f the Central. Hotel, as the new proprietor of the Okarito Hotel. AH'- Mc('luggage held a mortgage over toe proper! v. Before going Lo Okarito m. arrangements were made between the parties as to who should take l i Stock. On April 22nd plaint ill saw Mrs Sweeney and she expresson netself as satisfied with the lease. Subsequent I v plaint ill' received t> letter from Mr Met'luggage stating that he refused to stth-len-e or sell the lintel Plaintiff went down to Okarito and s;,w Sweeney, who slated that Mr AleCltt,rmtge was the new owner ol the hotel and he (plaintiff) would have to see him. After the luncheon adjournment Mr Joyce staled that Okarito was a lavoitrite tourist resort. Mr Murdoch: Its present population is thirteen. Plaint ill': Even so. it i> a well-known tourist, resort. Continuing, plaint ill' said he bad lost twenty-nine days work at (2 Ja dav. on a contract which he had m

hand at the time. 'l',, Mr Murdoch: I'iaintill' oul not know lmw many sections were included in the deal. One hundred acres leasehold was included in the agreement. As far as lie knew there was no stock on the hundred acres. Air Al<( luggage "had never told him tb.it. Mis Met'luggage held a mortgage over the property. Plaintiff offered In pay £7OO when he learned there was a 'mortgage to that amount on the property.' He denied that Mr Mr('luggage had ever said to him. "If volt ran pay the £.OO the deal will go on," Plain till’ was quite prepared to contradict that Sweeney told him that Mrs Met*luggage held a mortgage on tuie properly, and that il would he necessary lo get her consent before an agreement was reached. William AI ('('luggage stated that his wile held a mortgage over ibe proport v. lie remembered plaintill going to Okarito for the purpose of taking stock and Mr Sweeney referring him tel hint (wit ue— I Ms "11m bass. To Air .Murdoch : Pialilert told witmo. he had leas'd Ihe hotel, ami witness said "You have n > power I • lease it. Mrs Met luggage gave Sweetmv power to sell it. hut not to lease it." Witness .also told Ptablert that Airs Mi (‘luggage held a morlgago mi the property, and Pfuhlert interviewed Alls MeClttggage. telling witness afterwards that it was “no good.” ITalderl also said he did mil recognise Mrs Mr('luggage, as lie was dealing with Sweeney. William Joseph Ives, propitclor ol the Central Hotel. Greymonth. ice >!- leeted Mr ITahlert coming into hipremises on April 3. Mr Sweeney introduced Air ITahlert to witness as "the new proprietor of the Okarito ti .t-'!.” Alr Sweeney also invit 'd witlies-, down to Okarito on May Ist. the day (,he exchange was to take place. Mr I’fahlei't asked witness t > lake stuck. Witness ami Mr Plahlcrt. on the day appointed went to the bar which was hiked. Ml Sweeney telling them that Mr AI c('luggage had charge. Tliis com J lid; i t !, e ea.se for pla.inti!!'. THE DEEEXCE. Mr .Murdoch then called the dcleiid.iui. John lewis Sweeney, who said tii.it lie had brought the hotel I rota Mrs Alii, luggage last year fur £1001), paying £.'ibl) cash. Hilling the fourteen months he was at the hotel the bakings averaged £1 per week. There was no tourist trade to speak of. so witness determined to sell. In the mortgage agreement with Alt's Alel'luggage tl wits dm ided that witness would not sell without her permission. Mr Pfuhlert approached witness on April 3rd last about the property, and witness told him ah nit the mortgage held by Alt's .Met'luggage and that it would be necessary lo get her consent. ITahlert said to him. "Alright, wo will go and see airs AleClugo.ugo.” The arrangements with the mortgagor about ihe transfer ot the property were overlooked when the agreement was drawn up. Witness and ITaiilerl interviewed Airs Alrt'luggage. and the matter nl the mortgage was mentioned. Witness endeavuttietl to obtain Mrs AlcCliiggage’s t.xmM'ui, but ITahlert told witness that, he was dealing with him and not, Alt's Mi ('luggage. ITahlert laid never suggested a third person being present when All's All ( luggage was interviewed. Mrs Al ('('luggage would tml give bet consent, and witness inlormed ITalileri of tliis tact, telling him il would be no good going on with the deal. Air Joyce: Did yon ever tell anyone that you were too drunk to know j what von were doing when you made the deal with Pialilert. Witness: I am pretty certain I didn't. Mr Joyce: You are pretty certain, but did yon.Witness: No. Continuing, witness -aid In, would -wear that iTaldcrt did not oiler him j £l-()Q. nor did he offer twenty five Mnlltngs a week. When the agreement was made witness told ITalden that It would ho subject to All's MeC’luggage's approval. Witness ha l not been asked by ITahlert if there was anything lo hinder him selling. At the conclusion ol the evidence Mr Murdoih for the defendant raised the following non suit points: -tl) That there was mi memorandum ill writing within the Statute of L rands. I o j 'l'bat the agreement relied upon by if .e plaint it!' was too vague am! uncertain in that it contains not sullicioiit closetiptio’.t of the land sold : Gi.f'i he tiiaiiililV cannot ree iver for the reason that the cm-,cut of the mortgagee was not obtained to the proposed -ale—the mortgage having been registeror plaintill’ eaunot say he had no notice of the terms and such consent was a condition precedent I" the side. His Honor intimated he would accept argument in writing on the points raised and the ease was adjourned sine die for judgment.