SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 5012, 17 April 1877, Page 3

SUPREME COURT.

CIVIL SITTINGS.

Alonday, April 16,

(Before his Honor Air. Justice Richmond, and a Special Jury.) F. VS. HOPBEU V. H. S, WAKDELL. i’or the plaintiff, jMr« Travers \ for the de* fendant, Air. Gordon Allan and Air. Bell. The following special jury was sworn T. Buchanan (foreman), B. W. Morrah, J. AlcDowell, C. W. Bishop, J. Paul, E. W. Alills, D. T. Stuart, J. Watt, Clifford, F. C. Binus, J. Holt, and J. Wilcox. This was an action to recover tho sum of £IOOO damages for non-performance of a contract for the purchase of land. The declaration alleged that the defendant falsely represented himself as the agent of tlie late Gwavas Carlyon, of Gwavas, Hawke s Bay, and in that capacity was authorised to negotiate for the sale of certain lands at Featherston (sections 326 and 327) belonging to Air. Carlyon. That plaintiff purchased these sections from defendant as Air. Carlyon’s agent, and paid the full amount of the purchase money, but Air. Carlyon repudiated Mr. Wardell, and the contract was not carried out, and plaintiff never got a conveyance of the land, from which he was ejected after making great improvements upon it. E. W. Hodder deposed that he was some time ago living at Featherston, from 1864 to 1871. He had purchased land through Air. Wardell from Captain Carlyon. It was some time before the present transaction. He spoke to Air. Wardell in reference to these sections in April, 1873, and asked him could he sell these sections belonging to Air. Carlyon, and he told witness that he would have to see Air. Carlyon. He did see that gentleman, and the result was that witness paid for the land. It was Air. Wardell who named the purchase money. He asked £l2O, and witness offered him £IOO, which Wardell eventually took, the money being payable in twelve months, bearing interest at 10 per cent., payable quarterly. Witness took possession, and told Air. Wardell that he had done so, and that he was using the wood on it. Witness made several payments ; the receipt marked A was given by him. He afterwards paid Air. Wardell a larger sum, but before paying that he had received a letter from Captain Carlyon. The letter produced was the one he received. {The letter was to this effect, that unless the plaintiff gave an account of the timber he had sold on the land, and placed the receipts to his (Carlyon’s) credit he should place the matter in the hands of a lawyer and desire him to prosecute plaintiff for robbery, and also to inquire into his taking possession of the land and using it.] After receiving this letter he paid Air. Wardell a farther sum of money. He did not show this letter to Air. Wardell, when he paid the £IOO, but he mentioned the letter. Air. Wardell said he could not make 5t out. When witness paid the money Air. Wardell said he should get the title, but Air. Carlyon would not give the deed until such time as the money was placed in Air. Wardell’s hands. When he paid the money Air. Wardell told him that he would apply to Air. Carlyon, and he had no doubt that the deed would be sent immediately. Witness was acquainted with Air. Freeth, Clerk of the Court at Featherston. Had some telegrams from him, and also a telegram from Air. Wardell, the Resident Magistrate at Featherston. (The telegrams had reference to th’ deeds of title and Warden’s communication jyitk Gatlyon in respect of them.) Witness had left the receipt with Air. Freeth, who afterwards sent them to him. Some days after receiving Air. Carlyon’s letter of the 12th June, he saw Mr. Wardell at the Featherston Court House. Witness asked him to get the deeds from Carlyon. It was then that he suggested witness should take the money back, because Carlyon would not send the deeds. Witness refused to take the money back, saying that he wanted the land. Witness only had communication in reference to the land with Air. Carlyon. Had never received any title to the land. He had been in possession. Knew a person named Urquhart, who ordered him (witness) off the land on one occasion, and himself took possession. The land was worth from £3OO to £4OO. Cross-examined by Air. Allan : Had bought some land from Carlyon previously, but knew that it had belonged to Air. Wardell. He was aware that his father spoke to Air. Wardell (being authorised by him), about buying the land from Carlyon. Could not remember the date. Witness’s father never told him that Air. Wardell had communicated with Carlyon so far back as 1871, and that Carlyon had stated what the terms of the bargain should be. Carlyon did not tell his (witness’s) father to refrain from cutting the timber on the land, because, as a matter of fact, his father had nothing to do with it. The arrangements were more between Mr. Wardell and himself. He was not told that he had to pay £25 deposit, which had not been paid. Would swear that he did not agree to pay that amount; he agreed simply to pay the money at the end of the twelve months. The signature to the piece of paper produced dated April 7, 1873, was in his handwriting, It contained the terms of agreement, and showing that two years’ interest at 10 per pent, was due. Could not explain how he came to acknowledge the interest. Did not remember the document. Between the 16th December, 1873, and April, 1874, Air. Wardell frequently asked him for the purchase money, but he was not aware from anything said by Air. Wardell that there was a danger about getting hi.s purchase money. Having received the letter produced from Mr. Carlyon, went to Air. Wardell and paid tlie balance of the purchase money, less an amount of £3 9s. Witness told Wardell about the threatening letter he had received from Carlyon, but did not produce the letter. This concluded plaintiff’s case, and for the defence, Air. Travers called Herbert S. Wardell, Resident Alagistrate at Featherston, who having been sworn, deposed that he had received authority to soil the land forming the subject of the present action. His authority was by letter, which he produced. It was dated 10th January, 1871, and explained the terms of the contract he should require any purchaser to ontt-r into. That letter was the only authority be had in .April, 1873. The letter was sent t’* witness in reply to a telegram ho sent to Air. C'arkgm. That telegram was sent in consequence of a communication with Mr. Hodder, senior. Between January, 1871, and April, 1873, witness had had frequent conversations with the plaintiff, but had not made any arrangement with the plaintiff personally jn regard to the land. At the interview with plaintiff in April the memorandum produced was made out. No interest had been paid up to that datp. Witness denied having sold the land to the plaintiff on that occasion. During the interval between January, 1871, and April, 1873, witness received a letter enclosing a conveyance of the land, and urging his want of

tho money owing to him by Hodder. Having received the payment from Hodder, witness advised Captain Carlyon by telegram, in reply to which Carlyon telegraphed to him to the effect that the sections wore lot to Air. Urquhart, and that Hodder would be prosecuted for taking the timber.. The offer made for the land bv Hodder the elder was, to the best of the witness’ recollection, £IOO, paying down £25, and tho remainder in sums at intervals. Witness received no small suras, but simply the huge one, which was paid by plaintiff subsequent to the receipt by him o F the threatening letter from Carlyon. The plaintiff never gave me any hint whatever that he had received a letter from Carlyon. After I had received a letter from Carlyon I charged the plaintiff with having received I from Carlyon the letter produced in Court by him, and with having kept it dark. Tho plaintiff had received a threatening letter from Carlyon for money' for cutting timber. Cross-examined : I had been acting for Air. Carlyon before. After the bargain the elder Hodder always promised to pay, and I told him if he did not he would lose the land. Ho said lie had given the land up to Fred. On April 7 I saw plaintiff, and the result of some conversation was that he asked mo to make a memorandum of what was owing. Ho could not then pay it, and said he would do so as soon as he could. No fresh contract was entered into by me with plaintiff. I mentioned the fact of his father having purchased, and the memo, showed tho amount due. There was no reference to my writing to Carlyon, because all that had been done .three years previously. He made payments of all money due, except £3 95., on April 21, 187-1, and I gave him a receipt. I had no intimation then that Mr. Carlyon was proceeding against him for cutting timber, and had withdrawn all authority from me. Tho balance of £3 9s. has never been paid, and I had not communicated with Air. Carlyon because the balance had not been paid. On July 14 1 told Hodder he had lost the land, because the terms had not been carried out. In January, 1876, I paid over to plaintiff’s solicitor £146 Is., principal and interest paid to me. This was the case for plaintiff. Air. Allan then addressed the jury for the defence. He said he had no evidence to offer for the defence, the plaintiff having been called as a witness on behalf of the defendant. He then went through the evidence, urging the ■jury to come to the conclusion that the abrogation of the agreement was not owing to ‘efendaut’s having falsely assumed nn authority never given him ; but in consequence of defendant having neglected to conform to the conditions imposed upon him by the contract for sale.

Air. Travers then summed up on the whole case, after which

His Honor charged the jury. He explained to them tiie first issue, “ Did the defendant falsely pretend to the plaintiff that he was the duly authorised agent of Gwavas Carlyon,” and said if they found in the affirmative, he should further address them on the question of the measure of damages.

The jury then retired, and on returning into court, declared their verdict to be in favor of the defendant.

The Court then adjourned till 10 o’clock this morning.