A HAWERA CASE.

Taranaki Daily News, Volume LII, Issue 162, 3 August 1909, Page 4

A HAWERA CASE.

HARDLEY v. HUGHES. Mr. Justice Edwards has deliverod judgment in a case concerning a piece of land near Hawera, heard at the last New Plymouth sessions of the Supreme Court. John Hardley and otiiera sued Kobert Jackson Hughes, a wood and coal dealer, of Hawera, for specific performance of a contract for the sale of sections 14 and 22, Rainanui township, Hawera, of which there had been delivery of possession in pursuance of the contract, and defendant counter-claimed for the recovery of £O9 18s 2d, money paid on account of the purchase. At the hearing Mr. D. Hutchen (instructed by Mr. H. Halliwell) appeared for plaintiffs, and Mr. R. Silence (instructed by Mr. Barton) for defendant. The defence was, briclly, that the agreement for the purchase of the land was arrived at on condition that a new road through the estate should be formed and metalled, which plaintiffs denied.

After reviewing the conflicting evidence tvs to what took plate with reference to the new roads shown upon the plan of subdivision, his Honor remarked that be was not able to say that there was anything which would" justify him in coming to the conclusion that any one of the witnesses was speaking untruly. That being the case the weight of evidence was in favor of defendant's story, and, if necessary, credence must oc given to it. But he thought it was immaterial which story was correct. His Honor was satisfied that the sale of these allotments by the plan was at least a sale upon terms; thai,, at all events, before the time came for. the payment of the last instalment of tac purchase money, the plaintiffs should lie in a position to give, .mcl should, upon payment of that instalment, give to the defendant a good title to the allotments sold, as part ol a subdivided estate, through which the roads shown upon the plan had been lawfully dedicated and formed in accordance with suction 2 of the Public Works Act, 1(103. The plaintiffs were admittedly not in a position to perform their contract upon these terms. The plaintiffs were endeavouring to compel the defendant to purchase and pay for something substantially different to that wnieh they contracted to sell to him. They had had over five years in which to prepare themselves to carry out their contract with the defendant, and could have put themselves in a position to do so, had they seen fit. They bad not done so. His Honour rested his decision upon the fact that the plaintiffs had not performed their contract; that tllcy were not in a position to perform it; that they might have put themselves into a position to perform it; that tney had made no attempt to do so; and that they did not offer to do bo. in the original action judgment was given for defendant, with costs on the lowest scale. In the counter-claim judgment was also given for defendant (plaintiff in the counter-claim) for the sum of .lid!) 18s 2d, also with costs on the lowest scale.