SUPREME COURT, AUCKLAND.

Poverty Bay Standard, Volume III, Issue 211, 7 October 1874, Page 2

SUPREME COURT, AUCKLAND.

(In Banco.)

Wednesday, 23rd September. [Before Hie Honor Sir G. A. Arney, Knight, Chief Justice.]

Read v. Hale (Appeal).—Mr. Whitaker appeared for the appellant, who was defendant in the Court below. 'The appeal came before His Honor the Chief Justice upon a question of law, submitted by the Resident Magistrate sitting at Gisborne, Poverty Bay. The evidence out of which the question of law arose was not sent up with the case. The following is an outline of the facts, which have an important bearing upon agreements to sell land, contingent upon such land being conveyed to the vendor from native owners. Mr. Hale, a settler at Poverty, sued Mr. Read, also well known in the district, in the lower Court at Gisborne for a breach of agreement to sell him a piece of land, and £5O damages on account of the loss of his bargain. The agreement was dated the 10th of May, 1873. Under it George Edward Read agreed to execute a lease to Frederick Willia»; f Haleof4oo acres of land, at a rental of £2O ayear, for five years. There was a clause in the lease under which the lessee was to be at liberty to purchase the said land, for a sum of £2OO, any time within the five years, the payment of rent to cease upon the payment of the purchase money. The lessor undertook to convey the lan I to the lessee upon the purchase money being paid. The lands in question are known as Wlinha Paratn, and form part of a block of land which, although t he subject of a Crown Grant to native owners, these owners had not nt the time, of the suit alienated. It appeared on the face of the documents read before the Court, that the respondent Hale fell int o ill-health, and wished to sell his interest in the bargain with Read to Messrs. Carr Brother, for which he was to receive £35. But Bead refused or neglected to execute the lease, &c. This was the breach of agreement upon which Hale brought his action. Mr. Read put in a defence, that Hale know that the laud was inalienable, and that ho took the agreement to lease with a purchasing clause upon such title as he knew Read possessed. To this Hale replied that, he was aware that the native co-grantees hud not parted with their interest, and told Mr. Read that ho had heard the land was ; but Read in reply to this said,.“ That shall be altered.” The plaintiff contended that this statement by Read was misleading—that he would not have entered into the agreement but for such an undertaking on Read’s part. Upon this ho brought his action. The Resident Magistrate, Dr. William Kerr Nesbitt, gave judgment for the .plaintiff, with damages, £35. Against this judgment the defendant now appealed.—Mr. Whitaker was heard in support, of the appeal. He contended that in an agreement to sell real property in the event

of a flaw being discovered in the title, where there was no fraud or collusion of any kind, no damages could be recovered against the vendor for breach of contract (Flurenu ®. Thornhill) ; that several authorities went to shew that only the deposit with interest could be recovered.—His Honor observed that no evidence as to the facts was laid before the Supreme Court by the Resident Magistrate. He thought it would be dangerous to give any decision apart from the precise question submitted to it. He did not think the question argued by the learned counsel was opened in the present case. The Resident Magistrate put it thus:—“Was I justified in giving damages, seeing that the plaintiff knew something of the circumstances of the land.” That something was “that be had heard it was inalienable.” But it appeared on the papers that he told this to the defendant Read, who replied, “ I shall alter that, or that shall be altered,” or some words to that effect. It would have been very much better had the evidence been laid before the Court. The Resident Magistrate appeared to intimate that it was upon this ground, the misleading effect of the reply by the defendant, that he gave damages. The Court upon the case submitted to it was not prepared to say that he was not justified in giving damages. With respect to the argument raised by Mr. Whitaker relating to “agreements to purchase real estate of which the title should turn out to be defective,” that question was brought before the Court of Appeal, and there was considerable discussion as to whether the doctrine raised by “ Flureau and Thornhill ” were quite applicable to New Zealand, and even if it were whether it could in all cases be followed out. —Appeal dismissed without costs, the respondent not being represented.