KAIAPOI.

Lyttelton Times, Volume VI, Issue 402, 10 September 1856, Page 7

KAIAPOI.

EESIDENT MAGISTRATE'S COTTET. Wednesday Sept. 3. Ceidlanb v. Beswick. This was an action for £11 11s. 6d., alleged to be due to the Church Property Trustees, for yrent^^jd instalments of purchase money for ' standing timber in the church bush, sold by ■' Mr. Cridland to Messrs. William and Samuel l, Beswiclc. y Mr. Gresson appeared for the plaintiff, and ! Mr. Dampier for the defendants. ;" After some formal amendments in the proi- ceedings by consent, Mr. Cridland was examined j by Mr. Gresson, to prove the sale of the bush to Jvlessrs. Beswick, and that a memorandum of the sale had been signed by himself and Messrs Beswiek, on which the plaintiffs relied as the ! contract. I This memorandum contained no mention ' 7 1- -T' any engagement on the part of the tolamtifts, or those under whom they claimed , title, as to the clearing of the river way, which t appeared to be the main question between the parties. ' On cross "examination of Mr. Cridland by Mr Dampier, it was elicited that upon the negotiations proving to the signing of the alleged memorandum, the subject of clearing the river ■way to the bush had been raised and™ discussed between them, and he admitted that he'lnd

promised to recommend Mr. Sewell, the then representative of the owners, to expend a limited sum of money in opening the river, and that he had afterwards allowed a Mr. White the price of three acres, part of five acres which he had agreed to purchase at the rate of £20 per acre, to he expended hy him in clearing the river, which Mr. Cridland said he believed had been expended in so doing. Mr. White was then examined to that effect, and by his evidence it appeared he had rendered the river more practicable. Mr. Dampier for the defendants contended that the plaintiffs had not in fact performed their part of the agreement, which was to clear the river so as to make it available for rafting down timber in a reasonably safe and convenient manner, which he was prepared to prove, and without which the timber was comparatively valueless and unmarketable, and that on the faith of that promise they had made the purchase ; that the memorandum produced by Mr. Cridland did not truly represent the whole agreement, and was only in fact the statement of a portion of contract between the parties. That the plaintiffs' claim rested upon a parole agreement of which clearing the river by the vendors expressly formed part.

That the plaintiffs not having complied with their portion of the agreement, whichwas in its nature a condition precedent, the defendants were justified in withholding further payments until it should be done, and that the defendants therefore claimed of the court, in exercise of its jurisdiction as a court of conscience as well as a court of law and equity, either to dismiss the summons or to adjourn the case until such time as the plaintiffs should have performed their part of the engagement; which would avoid the necessity of a cross action by the defendants, one of the purposes contemplated by the Resident Magistrate's Court Ordinance, -- Mr. Gresson for the plaintiff avowed that the "written memorandum must be taken as the entire contract and could not be varied by parole evidence.

Mr. Dampier in reply contended that the written memorandum was not in fact a contract by which a corporation was bound; for theplaintiffs, being a corporate body, could only bind themselves to that contract as a written contract, by their seal as evidence of their signature, or by an agent duly and previously appointed, and authorised by writing so verified ; which was not in evidence; and that the subsisting contract between the parties was a parole agreement resting entirely upon pai*ole evidence, which would let in the promise of the plaintiffs to clear the river, which defendants were prepared to prove had not been done as promised.

Mr. Gresson contended that, although a corporation, the plaintiffs were enabled to contract by instruments in writing not under seal-; but he did not point out how, otherwise than by their seal, the documents were to be subscribed, unless by agents already duly appointed by them under seal. He "contended also, that a party to a contract, who had not signed it, might sue the party who had signed.

Mr. Dampier admitted that principle upon contracts made by duly authorised parties, both of whom were competent at the time to make the contract; but not in the case of a contract wherein the authority and competency of either party was wanting, _Mr. Dampier then proposed to examine witnesses to prove the parole agreement, coupled with the memorandum, as it really did subsist. The court however, declined to receive cvi? dence to vary or extend the terms of the written memorandum, and gave judgment for the plaintiffs. BESAVICK V CEIDLAND. This appeared to be an action for damages against Mr. Cridland for nonperformance of his engagement, on the part of the "Vendors, to clear the river ; on the faith of which promise the defendants were induced to purchase the standing timber which was the subject of the last action, and for nonperformance of whose promise the defendant had suffered considerable damage, the timber being comparatively unavailable. " There being a number of Avitnesses to examine, the court about five o'clock adjourned the case to its next sitting at Kaiapoi. These cases created considerable interest in the neighbourhood, and some of the Church Property Trustees were, we understand, present at the hearing.