Supreme Court.

Manawatu Herald, 6 October 1904, Page 2

Supreme Court.

A FOXTON CASE. At Palmerston North sittings of the Supremo Court (before Mr Justice Cooper), the following case was heard: —Frederick W. Frankland (Dr Findlay) v. John Alfred Perreau (Mr Moore) and Elsie Jensen (Mr Haggitt), to"enforce agreement to sell and damages for breach of contract- , The statement of claim alleged that by agreement in writing the defendant, T A. Perreau, agreed to sell an acre if landV&oo; to the plaintiff for £6O and received from the plaintiff £1 as a deposit} further that the defendant, J. A. Perreau, entered into the agreement as agent for and under the authority Of the defendant, Elsie Jensen, for the purpose of binding her as well as himself. The agreement was produced in Court duly signed by the defendant, J. A. Perreau. The transfer of the land had since been refused and defendants had refused to perform their part of the agreement. The plaintiff claimed the performance of the agreement add £2O damages for their witholdiog specific performance thereof. It was further claimed that if the agreement was not binding upon tbs defendant, Elsie Jensen, it was upon the defendant, J. A. Perreau, and if the latter was unable to perform the agreement, the plaintiff was willing to accept a transfer from him of his interest in the land, subsequent to a proportionate abatement of the purchase money to £3O and payment of damages for withholding performance of the agreement* A third cause of action was that if the agreeement could not be carried out at all the defendant, J. A. Perreau, should be held liable for the breach. Plaintiff alternatively claimed from J. A. Perreau, £7O, damages for breach of contract and the return of the deposit of.fr. In an amended statement of claim for damages upon the third cause of action to respectively, £s°> £ loo > £l5O. The statement of defence set put that defendant only agreed to sell his interest in the land subject to the consent of the joint owner. The remainder of the-statement of claim was denied. On the second cause of action defendant alleged he was always willing to transfer his share of the property for the sum of £6O, but did not admit there should be any proportionate statement of the amount, £6O, On the third cause of action, defendant denied he committed any breach of the agreement, and if it be proved there had been a breach of agreement, the plaintiff had suffered no damage thereby. The defendant further said, that shortly after the agreement, the plaintiff left the colony for 18 months, without making any • offer or attempt to complete the agreement. After his return the plaintiff agreed with the defendant to purchase the acre and instructed defendant to have the land' surveyed, a transfer prepared and forwarded to the plaintiff's solicitors. After considerable delay the plaintiffs agent at Foxton returned the transfer and title to the defendant and the latter was informed that the plaintiff declined to complete the purchase as there was no legal access to the property The defendant therefore treated the contract as at an end. It was further claimed that defendant had incurred an expense of £lO in the preparation of plans, transfer and travelling expenses, and that amount was filed as a counter-claim. An amended statement of claim set out that the agreement detailed in the statement of claim was not sufficient to satisfy the Statute of Frauds in that it did not set out with sufficient particularity when the purchase money. should be paid and when possession of the property should be given; that it was a condition precedent to the agreement that the consent of the coowner should be obtained, and it had not been obtained. The statement of defence, filed by the plaintiff, to the counter-claim lodged by the defendant, J. A. Perreau, alleged the counter claim disclosed no cause of action, and no damages were recoverable in respect of the matters therein alleged. Evidence was given by Messrs C. F. R. England (manager of the Foxton Branch of the Bank of New Zealand), and Reginald Moore (plaintiff's solicitor at Foxton). Alfred Fraser, Geo. Nye and Walter Alzdorf also gave evidence as to the value of the land, and the plaintiff’s case closed. After the luncheon adjournment, Mr Moore stated a settlement had been arrived at, the defendant, J. A. Perreau, agreeing to transter his interest in the land involved and pay £2O damages, together with the costs of the action, disbursements and witnesses' expenses. His Honor gave judgment accordingly.