WHYTE’S HOTEL.

Manawatu Herald, Volume XXXIII, Issue 938, 7 January 1911, Page 3

WHYTE’S HOTEL.

PURCHASK TRANSACTION DISPUTED. VKRDICT FOR PLAINTIFFS. The ownership of Whyte’s Hotel ami certain laud at Foxton was concerned in a judgment given by Mr Justice Cooper on Wednesday in the Supreme Court, Wellington. Plaintiffs were Fredtii'-k Spencer Kaston, of Foxton, tanner, and Barbara Kllen Austin, Foxton, executrix of the will ol Herbert Austin, late of Foxton, tlaxmiller, and the defendant John Rainbow Stausell, of Shannon, auctioneer. Briefly the action concerned a contract entered into in August, iyo6, by which it was alleged defendant was to sell to the plaintiff, Frederick Spencer Kaston, with the consent of Herbert Austin (since deceased), Whyte's Hotel and ground attached thereto for ,/,'6ooo. Some difficulty occurred in regard to the description of the allotment, and the agreement was never executed. Plaintiffs asked that the court should order the rectification of the agreement by the inclusion of the proper description of the land ; that the defendant be directed and decreed to execute the agreement in favour of plaintiffs, or a transfer of the laud directed. Plaintiffs claimed £2OO as damages, or, in the event of it being out of the defendant’s power to make specific performance, the sum of ,£5Ol was claimed as damages. Defendant denied that there was any omission from the agreement, alleged that the written contract expressed the full agreement between the parties, and also pleaded the Statutes of Fraud as an alternative answer, alleging that plaintiffs had been guilty of laches. his honour’s findings. After a lengthy review of the evidence his Honour found it was

proved—(i) That the verbal agreement tor sale purchase of the hotel and property for included the whole of the property theretofore used in connection with the hotel ; (2) that the Land Transfer portion was within the one fence and had always been used as a part of the hotel property ; (3) that Easton and Austin intended to buy and the defendant intended to sell the whole property within the fence, including the Land Transfer property : {4) that by a common mistake this property was not in fact included in the agreement of August 31st, 1906, or in the conveyance of October 31st, 1906, but all parties believed that it was, ; and acted under that belief; (5) | that Easton and Austin took j possession of the whole property i from October 31st, 1906, under that belief, and continued in possession until Austin’s death, | and the plaintiffs have since con- j tinned in possession, and are still | in possession under that belief ; j (6) that they are in equitv the j owners the Land Transfer portion, j His Honour directed that de- [ fendant shall transfer to plaintiffs the Laud Transfer section free from encumbraces. With regard to the claim for damages, and also, in the event of the defendant being unable now to transfer the section free from encumbrances, a sum of ,£5Ol should be given in lieu of such transfer, his Honour said it had been agreed that upon the question of damages and upon the question of the actual value of the piece of land in dispute both parties shall be entitled to call evidence ; and the matter would stand over for that purpose. The plaintiffs were entitled to their costs of suit upon the middle scale, but the actual amount would be determined after the evidence relerred to had been called. L'berty was given to the parties to I apply. i Mr H. S. Treadwell appeared j for plaintiffs and Mr A. S. Men- I teath for defendant.