Verdict for the plaintiff—£50 damages.

New Zealander, Volume 9, Issue 720, 9 March 1853, Page 3

Verdict for the plaintiff—£so damages.

Shepherd v. Jones. In Equity. This was a suit instituted by Mr. James Shepherd, of Wangaroa, to compel the specific performance on the part of Mr. William Jones, of the same place, of an agreement made between them on the 20th November, 1851, for the sale of 40 acres of land with buildings and improvements thereon by Mr. Jones, to Mr. Shepherd, for the sum of £OO sterling—£so to be paid at the date of the agreement, and the remaining £3O on the 20th February, 1052—Mr. Jones to be at liberty to occupy the dwelling and yard as long as he lived. The plaintiff in his declaration said that in pursuance of this agreement, he did at the date thereof pay the sum of £SO therein mentioned, and that he did within a reasonable time after the 20th February, 1852, tender to the defendant the said sum of £BO, but that the defendant refused to receive the same, and to fulfil the agreement; and that the plaintiff has always been and still was ready and willing to perform the agreement on his part, but that the defendant had refused to perform it on his part: — All of which was denied by the defendant, and the trial of the case was then proceeded with. Mr. Whitaker for the plaintiff. Mr. Barlley for the defendant. Mr. William Spickman of Wangaroa was called by Mr. Whitaker and proved the signatures to the agreement, he having witnessed them ; Mr. Shepherd,as soon as the agreement was signed,gave Mr. Jones one of a set of Bills of Exchange for £74 odd, drawn in favour of Mr. Shepherd by the Manager of the Auckland branch of the Union Bank of Australia on that Bank in London ; Jones was to have this draft cashed at Auckland, retain £SO of it, and hand the balance to Mr. Spickman. It further appeared in evidence that Messrs. Jones and Spickman arrived at Auckland together, when the bill was offered to Mr. W. S. Grahame, who pointed out to defendant that the bill was not negotiable, it being only one of a set of three, and not endorsed by Mr. Shepherd ; but that even if it were made negotiable it could only be sold at a loss, as bills on London were then at five per cent discount ; Jones refused to bear any loss by the bills, and Mr. Grahame undertook to write to Mr. Shepherd on the subject; Mr. Shepherd, on the receipt of Mr. Grahame's letter, forwarded the other two bills of the set, properly endorsed, at the same time stating that he would not pay the discount ; the bills were afterwards sold by Mr. Grahame, on behalf of the parties concerned, at the Bank, at 2£ per cent discount —£so was placed to Mr. Jones's credit, and the balance of the full amount of the bills, less the discount, credited to Mr. Shepherd, who refused to accept the balance, both he and Jones objecting to acknowledge liability for the loss in discounting—and the proceeds of the bill remained in the hands of Mr. Grahame, neither party having drawn their proportion. Some time in March, 1852, Mr. Shepherd came to Auckland,and had a deed of conveyance of the land prepared by Mr. Marston to be signed by Mr. Jones ; the parties met at the house of Mr. Shepherd's agent, where the balance of the £BO, after deducting the full amount of the bill of exchange, was tendered to defendant, and the deed presented to him for signature ; the defendant refused to sign the deed, because the first instalment of £SO had not been duly paid to him according to the agreement, and hecause he had in the mean time sold part of the land to a Hobart Town sea captain; and also because he objected to the deed of conveyance as it did not include a covenant to secure to him occupation of his house during his life as was originally agreed. This took place in the presence of Mr. T. S. Forsaith, who stated that Mr. Shepherd, as an ultimatum, offered to make up the balance to the £BO in full, and to give a document to secure Jones personal occupation of his house as long as he lived, according to agreement. Jones still refused to sign the deed, as In: considered the terms of the agreement were broken by the plaintiff in the first instance. Mr. Whitaker and Mr. Bartley severally addressed the jury for their clients. His Honor, after stating the points at issue and reading the agreement, observed that some remarks had been made on the relative situation of the parties. One certainly was a more educated man than the other ; but it was not contended that the defendant had been in any way deceived or misled by the plaintiff. The fact, however, of the position of the defendant and of his degree of education had an important bearing on the question. What was understood by the defendant to be the meaning ef the agreement I The Jury would put upon that agreement what might appear to them to be the true and equitable construction of it. It was evidently understood that the payment of the £SO was to be made through the medium of a bill of exchange, the delivery of the bill was in fact a part of the original transaction. But was it any part of the agreement that the defendant should be paid in any case less than the sums named in the agreement. The words of the agreement are to be looked at solely. £SO were to' be paid immediately ; £3O more at future time. The full price of the land was £BO. Was Jones to part with the land for les3 than that! But then this is to,be considered—that the amount of the bill exceeded .£SO. If it was in the power of the defendant to receive the £SO, clear and apart from any question as to the balance, then ycu may think that the sum of £SO was paid according to the agreement. But if the defendant was not to receive that sum, of £SO, except on terms of submitting to pay the discount, then you will ask yourselves, whether that was a fair condition I —whether the plaintiff had any right to throw that burthen on the defendant i The discount was a small sum in itself ; but not so small in respect of the amount of the purchase money. However, the question is simply, what was the meaning of the agreement \ The fact of Mr. Shepherd having formerly paid a premium for the bill, might very naturally make him unwilling to bear the loss of the discount, but he could not be entitled to insist on Jones bearing that loss, unless that was the fair meaning of the agreement. It was proper to remark that the defendant did not appear to have objected on the ground of the delay in payment, though the delay was caused by the plaintiff's oversight'; but he had always insisted on his rigljt to the full amount, without abatement. The jury would have to decide whether he was justified in that. As to the second issue, Mr. Marston said that the "balance tendered was calculated from the receipt on the back of the agreement. In other words, the discount was not allowed for, but was thrown on the defendant. Even if the Jury should think that the plaintiff's ultimate offer, made, as Mr. Forsaith said, " after a great deal of discussion," amounted to a sufficient tender, that would not cure any defect in the plaintiff's proceedings as to the first point in issue.

The Chief Justice then remarked on the insufficiency of the evidence relied on as showing; Mr. W. S. Grahame to have been an agent of the defendant as to the bill and the proceeds of it. Verdict for the defendant.