Tuesday, August 7.

Te Aroha News, Volume I, Issue 10, 11 August 1883, Page 2

Tuesday, August 7.

There ras no police business of any dcs" cription for hearing. Frazer v. Ehrenfrikd. — Mr Cuff for plaintiff, Mr Miller for the defence. This was an action to recover the sum of £17 14s 2d for timber supplied t ) Mr Walker, on an alleged guarantee by the defendant as his agent. The defence was a total denial of any liability. The plaintiff stated that he was a timber merchant and ironmonger, carrying on business at Te Aroha. He supplied the goods sued for at Walker's Hotel, but the latter told witness that the Wood was wanted improvements to the hotel, and that Mr Ehrenfried, who was the owner, would pay for it. The Magistrate remarked that this assertion was no proof of agency. ' Mr Fraeer, in continuation, said ' he believed in the agency of Mr Walker. .He had offered to reduce the amount by £10, and remove the porch. Defendant said he had allowed Mr Walker for the porch, and that the latter had charged KUrenfried for it. Mr Walker neverdenied that he was acting as agent for Mr Ehrenfried. By Mr Miller.— He kept books of account, and had his day-book with him. -He charged Walker all the time." -He supplied none of the items on the authority of Mr JBShrenf ried himself. He rendered

the 'to * x through! Walker.>< e.'^\.> '<■<> V^ "■£ In re-examination by Mr Cuff, plaintiff produced his ledger, in which an account against the defendant was rendered last Apjil. ; , ' Jj Devey proved that he had done work at the hotel on behalf of Mr Ehrenfried, on Mr 'Walker's instructions. The Magistrate remarked that that did not connect the defendant .with the, order in question. Defendant, being called by Mr Ouff, denied that he had ever authorised the erection of the porch, or had paid- any money on account of- it.. advanced money to build the hotel. When he first saw the porch witness said it was the ugliest thing he ever saw, He did not know whether it was paid for or not. , A verdict was given for the defendant, with solicitor's costs, £1 Is, Montague v. MoLivEß.r-Mr Cotter, with Mr Quff,; for the -plaintiff ; for- the defendant, MrMiller. Mr Miller, before Mr Cotter stated the case, objected to the particulars as not being sufficient [to disclose the cause of action. , ' Mr Cotter argued that this was sufficiently' staled in the summons. The Magistrate thought that the plaint i might be amended, and he dijd not think Mr MiHer would object. Mr Miller said he would not; but .they wished to know what they had to meet. After argument the plaint was amended, and the case proceeded. Mr Cotter said that this was an action to recover the sum of £100, deposit paid on the purchase of the Premier Hotel at Waiorongomai. After the deposit was paid, an undertaking was given by defendant to hand over the hotel, on payment of the further purchase money, on or before the Ist July, (The agreemfftt in which defendant sold as owner of the property, was put in.) Subsequently, plaintiff discovered that the sections on which the hotel was erected were registered in the name of Mr Ashley, who occupied the house. On seeing defendant on the 30th of June, the transfer agreed on was not effected, and the present action was brought for the £100 doposit paid. Mr Miller objected to the agreement being put in, on the ground that the amount of the purchase money being far in excess of the juiisdiction of the Magistrate, he could not hear the case. ' In support of his objection he quoted a case where only £75 was at issue, and it was ruled that the Magistrate had no jurisdiction. . . In reply, Mr Cotter showed that in the case cited the action was for damages. In the present instance it was merely to get back money paid. The Magistrate overruled the objection, and the case proceeded. The plaintiff utated that in the early part of June last lie entered into negotiations with the defendant for the purchase ,•o.l' the Premier Hotel at Waiorongomai, and concluded a bargain, the purchase money being. £1200, possession to be gpven.-bn, or before the Ist July, ensuing. He paid'&lOO. deposit in accordance with the Sg^eemenJ; put in, und produced the receipt. Subsequently to this, he heard that the sections on which the hotel was built were registered in the name of Mr Ashley^ and finding such was the case, he interviewed that gentleman, the result of which was that he agreed to give £150 to stand in his (Mr Ashley's) shoes ; that is to say, to let the house remain subject to two mortgages, the first to Mr Ehrenfried, for £800, the second to Mr McLiver, for £400. On the 30th of Juiie, the Ist of July falling on Sunday, plaintiff saw defendant, when the latter said that it was foolish" of him to give Ashley £150 more than the bargain, to which he replied that he (defendaut) could not give a title to the property. Defendant then advised him to complete the arrangement with Ashley, and said the £100 paid could be deducted from what was coming to him out of the bill of sale on the stock and furniture, for which plaintiff was to pay cash. On the 6th of July he went to the Premier Hotel to complete the joint agreement, McLiver being present, when the latter objected to Ashley signing till pla'ntiff had paid him his mortgage of £400, though he agreed that the £100 received should go to its payment. After a very long discussion nothing was dono, Ashley refusing to sign the transfer till defendant was satisfied. Plaintiff stated he had offered to settle the matter if defendant returned him his £100, but tho reply was that he had had advice, and would pay nothing back. In oross-sxamimition by Mr Miller, plaintiff said that he wanted his £10© back, as he got nothing for it. He .admitted his signature to a document presumed to be a copy of the original agreement in which he undertook to complete at the agreed on time or forfeit his deposit, but the defendant could not give him a title, so that was nothing. He fully understood that both the mortgages would be allowed to remain, though otherwise it was a cash transaction. At first h« understood Ashley to be manager for McLiver, and at the time he made the bargain with the latter, he said that if Ashley refused to give up possession, defendant must give him his money back. It was through Mr Macky t"hat he distovercd xiefendant was? not die registered owner, and it was in consequence of this information that he made the second agreement with Ashley. At that time nothing was Baid about paying defendant's mortgage off, neither was it understood that both mortgages should be paid off, he merely undertaking to purchase Ashley's interest subject to the mortgages. Though he saw Ehrenfried in reference to his mortgage, it was merely an act of courtesy, as he understood the money advanced had been lent for three years. He was prepared to carry out his agreement on the 30th June, and could have given a cheque for the money. On the 6th of July the argument about the business occupied from 8 o'clock in the evening till 5 in the' morning (laughter). Mr R. (£. Macky, who acted as an agent in the matter, proved that defendant put the hotel into his hands for sale, but said that before selling he must see Mr Ashley. He further corroborated plaintiff's evidence, and said that ho presented a transfer for Ashley's signature *twice,"on the 6th and on the 13th July. Mr Miller said' the ' defence was that at tho time of defendant entering- into the agreement, and till proceedings, were taken; he was able and willing at any time to complete' it. Defendant never said he was unable or refused to carry out the contract ; the refusal to complete was on the part of the plajntiff. Defendant merely sold as mortgagee, and the pur-

cli^|e money was his mortgage^pf; %hlch had not 'been .paid'' of tbndefea^^ the plaintiff. Tho defendant, as mortgagee,', had full power to srII, and the non-fulfil-ment of the arrangement was entirely owing to the course takon by the plaintiff, .in making a subsequent bargain. with Mr Ashley; ' Plaintiff could have had' "the ' agreement carried out at any time, had defendant's mortgage .money been paid, , which was aportijm'of the agreement.- =-,\/; Mr MoLiver, the defendant, was called, and denied that he had ever authorised Mr Macky to sell the Premier Hotel. He ' admitted having madeanagreement^witii'^ plaintiff, and received, a .deposit of JBIOQ,, for the sale of tlie Premier Hotel, but swore that he was always ready ,and willing, and never refused to do-so,- 'had the £400 been paid, on account of' which he would have given plaintiff credit; jfprV what he had paid. Plaintiff never asked - him for a title or to carry out the , agroe- ' ment, but only to give him credit for, the £100 deposit against the mortgage, arifa * when he told him he would do so, plaintiff" seemed satisfied. He would have been in a position to carry out the agreement, ■ notwithstanding the arrangement between •' Ashley and plaintiff, had the latter carried '« out his part,, ' In orops-exami nation, defendant said,, that lie took up the sectipn^ on which the - Premier Hotel win built 'ahd sold them to Ashley for £1200, £800 of which was « lent by Ehrenfried, and he retained a second mortgage of £400 himself ,from Ashley. The interest was to be paid ■|ii:irt<*rly and the place additionally insured ; but no interest had been paid on the mortgage, neither had tlie additional insurance been effected by Ashley. He justified his power ef sale by tuese laches, and denied that he and Anhley were in partnership in the property. He proceeded to say that both agreements, the oue with him, und the secoud with Ashley, could have been carried out, when he would ' have allowed tlie £100 paid, und this action would not havo been brought. In reply to tho 'Magistrate, ho -said the properly was then and now belonging to Awhley, and he had neither entcrod into possession on account at non-payment of insurance or interest on tho mortage, nor had he given any notice to the effect that he would do so. Mr Ashley was called, and proved that he knew nothing about the sale, but, under pressure, by which he afterwards exclaiued he meant if McLiver was likely to get into a lawsuit about it, he would have given up possession, had McLiver desired him to do so. In cross-examination, he said the £150 plaintiff was to pay him was for goodwill and license. McLiver had never asked about an assignment, equity of redemption, insurance or interest. He did not sign the transfer, becauae MeLiver't mortgage was not paid off, and Ue (McLiver) was not satisfied. If McLiver's agreement had been carried out he would merely have had to walk out and have made nothing of it. He would ratify defendant's agreement if compelled. Mr Ehrenfried was called, but merely proved that he held a firat in >rtgage for £800 on the Premier Hotel, and that plaintiff had asked him to let it stand, which he agreed to, plaintiff saying that he was paying McLiver £400 cash. - Mr Maoky, re-called, said that when' he " presented the transfer to Mr Ashley the latter refused to sign it because he got nothing out of the sale. He never refused to give up possession if McLiver's -agreement was carried out. Mr Miller addressed the Coilrt for the defence, and Mr Cotter for the plaintiff. The Magistrate, in giving his decision, said that in this case the right to recover the £100 rested upon one fact, viz., on which side was the breach of agreement. It had been argued that the plaintiff failed to tender a conveyance to the vendor, as was usually the case in transactions of the kind. In this case there was an exception, which was that plaintiff might suspect fraud on the part of the vendor. It was clear that in purchasing he believed he secured tlie two sections and the-hotel as a going concern, from the owner. Had he (plaintiff) had a conveyance prepared, it would doubtlessly haver f been from McLiver to himself, and in that case it would have been absolutely worth!© s, from the simple feet that McLiver was not the owner of what he sold. McLiver claimed ownership as a mortgagee, but that could only have been had he held a first mortgage. It waa absurd to think that defendant conld give any title on his second mortgage of. £400, when there was a prior ono of £800 existing. It was a condition precedent that that should have been paid off, when the j defendant might have given a title. He did not, however, pay, Ehrenfried, and it was also very doubtful if there was any breach on the part of the mortgagor in payment of interest, as *it was only due one day before, and 21 . days'., grace -wefce given in the mortgage deoa. Defendant was not in a position to hand over the property on the Ist July, but' plaintiff vary naturally based his ealcnUtUns on being able to enter into possession, and take over profits by that date. The fact was that defendant was not then, never had been, and was not in a position -now to give legaj possession of ,the property,,, and it was idle tovay that^he 1 did^riqt 'do^,. ooj-boouuHO^ CoTlVej^nc^W|fiTSp^^aiSre^r* him. Under these circumstances plaintiff no doubt wa<» entitled to recover jndgw ment, which would go for {'£100.: The costs assessed at £9 ss. Judgments for plaintiffs were given in tho following cases :~Ularka; v. Cornea, L 3 10s 8d ; sum.) v. MqLeodp L 9 |2* 103 ; Heathcote v. Voysey, L 6 7s; 'JfarVell.v. Courtney, LI 18s 6d; some v. O'Connor^ , LI 0* 6d ; same v. Kenny, LI Os 6d ; , Perry v. Farrell, L 3. NICHOLLvS Y. NOAROMAKK.— Mr Cuff for; > plaintiff, Mr Miller for the defence. Thja, was an action to recover Llsj -value but pp a filly tukon from pWiutiff\» run,' ftttjLstil^ ! aequently killed. The faeta.weVe tKat'a^ v feudaut ami other Maoris, tbi/k a fltarA the( - property of defendant; away, 'woift pWr* I tiff's run and a< young filly that had been. running with tho m.irv, -thongh, not, , her i foal, followed to the 1 Maori" pi »£<* whore* the mare was Kept. Subsequently tfio yonng one \*as .tdjmiged by the resident -Maoris to belong to defendant, as one of their nnuiber; four y^ark before had. sjsen a foal like it running with, thejnarii^ This' was hardly good evidence 6f ' b^n^rßKitL"«s the iilly killed was onlyvjt-wro and _^«. JieU^,oldj but it 1 satisfied defetiOlan^ whY ? tuen'* gave it uwav to a man* uanvji; Varney>in~ antlsfariion* of a debt 1 'Tlib* .latter fiti f ' "breaking it killed it. The skm^wlncbr lniji'; „ bejn ta 1 c i off tho dof unct' was* jdenMe*^ by Mr Nicholls as thntof hit* yd ifo beyond^ ab doubt, and ha had been offered I»lOfpr^

it wtfk it was t*o years old. A verdict, was given" for TilO without; costs, and a month given to defendant to pay the; money. ._, Johnson v. Joy.— Mr Ouff for plaintiff, Mossrs Miller and Campbell for defendant. An action for Lt7, work and labor done on defendant's premises in building a chimney.' The work was' admitted, but the defence was that it was ordered by defendant's father t< who had ( recently filed in the Insolvent Court, and that therefore he (defendant) was not liable. The plaintiff was nonsuited; the'Magistrnte remarking .that defendant was clearly morally, though not legally liable. The Court then adjourned.