Supreme Court.

Manawatu Standard, Volume XL, Issue 7925, 5 October 1904, Page 5

Supreme Court.

PALMERSTON—WEDNE SDAY.

(Before Mr Justice Cooper.)

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, j. A. Perreau, agreed to sell an acre of land, Foxton, to the plaintiff for £60 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 agveement 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 and _G2O damages for their .withholding specific performance thereof. It was further claimed that if the agreement was not binding upon the 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 __30 and payment of damages for withholding performance of the agreement. A third cause of action was that if the agreement,could hot 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 tho deposit of £1, In an. amended statement of claim the plaintiff increased his claim for damages upon the third causes of action to respectively, £50, _£100, and _Sl5O.

The statement of defence set out 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 £60, but did not admit there should be any proportionate statement of the amount, £60. On tho 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 eighteen 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 plaintiffs solicitors. After considerable delay the plaintiff's 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 £10 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 prececedent to the agreement that the consent of the co-owner 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.

The defendant, Elsie Jensen, did not appear. The Court was informed she was a minor, but Mr Haggitt watched the case on her behalf. Owing to her age no defence to the action was filed on her account, but counsel on her behalf was agreeable, if a guardian was appointed, that a defence to the action should be filed.

C. F. R. England, manager of the Bank of New Zealand, Foxton, said he was authorised to act on behalf of the plaintiff in the matter. He' had money to pay for the land, and offered it to the defendant, J. A. Perreau, but it was refused, the latter stating he was getting a good return from the land. Plaintiff at this time was absent from Foxton, and defendant said he preferred the completion of- the matter to -wait till the plaintiff returned. Subsequently a transfer was submitted by the defendant for approval by plaintiffs solicitors, but it was returned together with' the certificate of title, owing to deficiencies regarding a right-of-way which the plaintiff subsequently obtained by purchase. The land, had, practically, doubled in value since the agreement of sale was entered into. Cross-examined, witness said he held the certificate of title for safe custody, but could not remember having read it. Witness did not know the land was jointly held by the defendants till the transfer was presented. Reginald Moore, solicitor, Foxton, said he acted for the plaintiff in Foxton, and witness detailed the negotiations that had taken place in connection with the matter between he and the defendant.

The plamtiff, in evidence, corroborated the statements of Mr England, except with regard to knowledge of co-owner-ship, of which the. plaintiff was not sure. He estimated the value of the 'section at£l2o, and detailed expenses he had been put to in connection with the prosecution of the matter. . "' ! . Cross-examined witness said he was ! not aware whether he learnt of the coownership before he left the colony or when he returned. He inclined to the former belief. Evidence as to value of the land was given by Alfred Eraser, Geo. Pye and Walter Alzdorf, and the plaintiffs case closed.

On resuming after lunch Mr Moore stated a settlement had been arrived at,: the defendant, J. A. Perreau, agreeing to transfer his interest in the land involved and pay £20 damages, together with the costs of the action, disbursements and witnesses' expenses.

His Honor gave judgment accord, ingly. ; ' . ';

The; Court adjourned till to-morrow morning.