AN INVOLVED AGREEMENT

Taranaki Daily News, Volume LIV, Issue 79, 23 September 1911, Page 8

AN INVOLVED AGREEMENT

CLAIM FOR DEPOSIT AND DAMAGES.

In the Supreme Court yesterday, liefore His Honor Mr. Justice Sim, thfr hearing wa*> resumed of the case in which Joseph Henry Slight, farmer, ol Stratford, and Charles Arnold, carpenter, of New Plymouth, and Lucy Arnold, his wife, for refund of .1 deposit of £SO in cennection with an agreement for sale of land, and for loss and damages suffered by recession of the agreement. Mr. Hutchison appeared for the plaintiff and Mr. Hutchen for defendants. The statement of claim set out that on August ,2, 1910, the parties entered into a contract in writing, whereby the defendants agreed *to sell to plaintiff sections 44 and 45, Tururutangi, Paritutu S.D., containing 148% acres, with all buildings, machinery and stock, subject to encumbrance s thereon. The price was .£-20 per acre, this including stock given in at that price. The sum of £SO was to be paid by way of deposit to J. H. Bowater, of Wanganui, agent for the vendors, and £250 on completion, the balance to remain on mortgage. The deposit was to be paid on or before August 25, 1!)10, and completion was to take place on or before September 1, li) 10, when possession would be given. Forty acres of the land were deficient of a little, but it was guaranteed by J. D. Mcßeth, solicitor, of Wanganui, to the value of £OOO to procure a title free of expense to the purchaser.

The pleadings further set out that on August 25 the plaintiff paid the deposit of £SO. On September 1 the defendants, pending the acceptance by the plaintiff of the title to section 45, delivered possession to the plaintill' of the land and chatties. Negotiations proceeded between: plaintiff's' solicitor and Mr. J. W. U. Mcßeth as to the title to section 45, and eventually a general assent, to improved terms, acceptable to the plaintiff if given effect to, was arrived at subject to certain, details -which might be arranged. While matters were thus in a favorable way for completion as to the title, difference arose between the parties upon the question of consolidating the encumbrances on the property, and such differences were found to be irreconcilable. On or about January 24, 1911, the defendants, by notice in writing, demanded possession of the farm* from the plaintiff, and by notice dated January 28 the defendants' solicitor rescinded the agreement of August 22. 'J'lie plaintiff as soon as he could conveniently vacate the said farm did so without prejudice to his claim for the value of the improvements effected by him during the period of his occupation and for damages for disturbance in possession. Defendants re-took possession on February 8. The plaintiff was always ready and willing to carry out the said agreement by accepting such a title to section 45 as was in course of arrangement. Plaintiff, during his possession of the farm, greatly improved it, and so farmed it that various crops were .sown and other work done in the way of providing pasturt and crops for the ensuing season. Tie defendants, on re-taking possession, were accordingly greatly benefited by the increase of stock and the enhanced value of the farm generally from the work and expenditure of the plaintiff. The plaintiff had, in consequence of the recission jby the defendants of the agreement, ami by them retaking possession of the lands smd chattels as aforesaid, suffered serious loss and damages, and had been put to labor and expense which had been fruitless to him. He therefore claimed the refund of the deposit of £SO, together with interest thereon from August 25, 1910, the sum of £27 3s 4d, being the costs incurred by him in the investigation of the title of the land, and £224 2s 9d, the balance on account of improvements effected by him (this waa the amended claim). ! In their statement of defence the defendants admitted that the agreement sot out in the claim had been entered into. They also admitted that J. H. Bowater was their agent for the purpose of effecting the sale of the property, but they denied that he was their agent for any other purpose. They also denied that, the plaintiff paid to them the deposit of £SO on August 25, 1910, or at all. They admitted that they delivered [possession of the property and that the plaintiff entered into possession on September 1, 19(10. But they said that such possession was unconditional, and that the plaintiff by accepting possession \ waived his objections to the title. With

regard to the paragraph in the statei ment of claim referring to the negotiation* as to the title to section 45, the [ defendants .said that they were always . ready and willing to convey and assurt the .premises to the plaintiff in accordance with the. terms of the contract of sale,'and although they offered to do so the plaintiff refused to complete in accordance with the terms of the said contract, and in consequence of such refusal they rescinded the contract by the letter of their solicitor dated January 28, 1011. Defendants also denied the allegations regarding plaintiff vacating the farm without prejudice to his claim for improvements, ' etc. They said that they re-took possession on or about January 25, 1911. Defendants further alleged that "the plaintiff was not ready and willing to carry out the. agreement for sale according to the terms of it. In particular he was not mkly and willing t« take the premises subject to the | encumbrances thereon. They said that the plaintiff did not tender to the defendants for execution any deed for conveying or assuring the premises to the plaintiff. They denied that the farm was improved by the wurk and expenditure of the plaintiff', or that he had suffered any loss or damage. The evidence was lengthy and involved. His Honor pointed out that the question was what interpretation was to he placed on the agreement of August 25. If a man chose to make a foolish agreement he must abide by it, unless there was fraud or misrepresentation. There was no allegation of that here. I Mr. Hutehen: We don't suggest for a moment that there has been fraud or misrepresentation. The parties beted i quite honestly according to their lights, i n» doubt. At the close of plaintiff's case His Honor asked. "Have you any authority, Mr. Hutchison, to show that you lire entitled to claim for these improvements? There seems to he direct authority agtiiust you on this point." Mr. Hutchison thought he had authority, and the point was argued. His Honor said he thought the authorities were against Mr. Hutchison. He also pointed out that plaintiff took possession at his own risk. He made improvements without an agreement, and took his own chance as to the title and encumbrances. Air. Hutehen moved for a non-suit on the ground that the evidence did not disclose any breach of contract on the part of the'defendants. The breach was on the part of the plaintiff in not abiding by the terms of the agreement, by insisting on the encumbrances being consolidated. His Honor said he would read the correspondence (which was voluminous), and would lake time to consider the > matter. Judgment was therefore reserved. '