SALE OF HOTEL

Hokitika Guardian, 11 October 1930, Page 6

SALE OF HOTEL

MISREPRESENTATION ALLEGED. SUPREME COURT JUDGMENT. CHRISTCHURCH, October 9. In the Supreme Court yesterday Mr Justice Adams delivered reserved judgment in the case in which Daniel Joseph Kelleher, hotelkeeper, of Christchurch, asked (a) for the rescission of a contract for tlie sale and purchase of the Shades Hotel, and lb) alternatively, for damages for misrepresentation and breach of warranty from Archie Malcoln McDnff, hotelkeeper, of Christchurch. After reviewing the evidence of t.'.e plaintiff and that of the defendant, his Honour said ; At the close of the argument, I intimated that I was unable to place reliance on the evidence of the plaintiff where it is in his own interest. His demeanour was very unsatisfactory, and his evidence is at variance, not only with 'the evidence of the defendant and Mrs McDuff, but also with the evidence of Mr Sutton and Mr Dwan. Then in his first affidavit of discovery, filed on April 29th, he failed to disclose the envelope, exhibit “E”, a'iid swore that to the best of his knowledge, information, and belief, lie had not then and never had in his possession, custody, or power, /any/document whatsoever relating to tlie/matters; in question in the action. •In the- second affidavit of discovery he .Stated on oath that he delivered a copy of the exhibit to his then, solicitor, hut retained the original, and later learned- that: this: copy had been mislaid; that he put the original away in the pocket of an old coat, and forgot where he had put it. It is admitted that the solicitor denies that the plaintiff gave a copy. Under pressure of cross-examination, he gave as his reason for not producing the original that he “thought it might he lost, and held it hack to take care of it.” If that is the truth, the explanation in his second affidavit of discovery is false and the concealment of the document was deliberate. The importance of this exhibit, if genuine, :s shown by the fact that there is no other writing purporting to he signed by the defendant containing any figures- of The hotel takings, and the defendant denies that, any such representation was made as to the takings. The history of exhibit “E” is shrouded in mystery. I "find no reason to doubt the substantial accuracy of the defendant’s evidence. I find therefore that the fii'st suggestion that tlie plaintiff should become the purchaser was on Monday, November 18th three days after the last date of which, according, to "one plaintiff’s story, exhibit “E” was signed, and that whatever verbal or written statements were made by the defendant to the plaintiff were made to the ■ plaintiff as the defendant’s agent, and.had no other effect than to authorise liim' to make a representation to other persons. What I have already said, disposes of the case. I think it right, however/ to add that in my “'opinion the. evidence affords no support to the allegation of fraud.

- The claim on the -ground ~of -warranty fails with the-.action arid is Mu anv ;event not sustainable. Judgment will be entered for the defendant with costs according to scale, including amended statement of defence; allowance for second day £ls 15s. T certify for second counsel and allow £lO 10s per day; order for discovery. £2 2s : inspections (2), £lO 10s; affidavit of discovery, £4 4s: interrogatories. £7 7s; answers to interrogatories (2), £l4 -14 s. Disbursements and witnesses’ expenses to. he fixed by the Registrar. Mr".Hi F//Q!L'eary.' .Twitli' M'iMA.: J. Mallev, appeared for the plaintiff, and Mr A. T. Donpelly. “with Mi' JP. P.. J. Amodco; defendant. - -