DISPUTED LAND DEAL.

Taranaki Daily News, Volume LVII, Issue 244, 24 March 1915, Page 7

DISPUTED LAND DEAL.

CLAIM FOR FORFEITED DEPOSIT

At the Magistrates Court yesterday, before Mr A. Crooke, S.M., G. W. Tinney, engineer, of Waitara, (Mr E. H. Quilliam), claimed tlie sum of £SO from Jesse J. Hills (Mr J. K. Sellar). The statement of claim sliowed that under an agreement between plaintiff and defendant for the sale of a certain property. The plaintiff duly paid the deposit and was ready and willing to carry out tlie agreement on his part. The defendant was' guilty of gross and unreasonable delay in performing the contract on his part. Thereupon notice was given plaintiff by defendant requiring tlie latter to complete. The defendant had not completed the sale, wherefore plaintiff claimed the sum of £3O, the amount of the said deposit. Philip Hopkins, the first witness, was managing clerk for the firm of Messrs Oovctt .' and Quilliam, New Plymouth. He said he had sole conduct of the negotiations in connection with the sale of the property over which the dispute occurred. When Messrs'Gilmour and Clarke brought them, the agreement to be signed, His firm was authorised by Messrs Tinney and Lucas to act for them. They advised Mr Tinney not to complete as there was 11 months'to'run on tlie first mortgage but defendant's solictiors agreed to arrange for an extension of this, mortgage. Subsequently defeiidant's solicitors wrote that they would renew this mortgage at G«/ 2 per cent. Plaintiff, however, thought this "too high." The correspondence between the parties was gone into in some detail. At a later date, witness continued, plaintiff's solicitors showed him a telegram from their client offering to renew the mortgage of £I4OO for G years at 5 per cent. On ascertaining that this second offer was a' good one, Tinney agreed to complete the transaction, if a clause was inserted allowing plaintiff to pay off at any time after six months' notice. Witness was cross-examined at some length : bv Mr: Sellar. In answer to questions, ' Hopkins said defendants wanted them to vary their terms. They were ready to complete'the 1 transaction before the Easter holidays of last year. G. W. Tinney said he entered into the agreement on lltli December, 1913, in Clark and Gilmour's office. Mr Gilmour said he was not sure what sort of mortgage the first mortgage was, but he thought from the rate of interest it was a Government mortgage. The magistrate: Are Government mortgages the only ones procurable at 5 per cent? Mr Cellar: Not at that time, sir. Mr Quilliam: One would be lucky to get one at that rate at the present time. Tinney, continuing,' said Mr Gilmour said he would not think of dealing with such a mortgage on a short term. Mr Gilmour said lie.'bad authority to make the second mortgage five years. He then put the matter in the hands of Mr Quilliam. On the latter informing him that the second mortgage expired in November, 1914, he determined not to accept these terms, as it was not as had been represented, a five years' mortgage. It was eventually decided that' he should accept-a five gears', mortgage at fi per cent. He was in a hurry.to complete as the winter "was approaching and after wearying of waiting, he decided to close the negotiations. Crossexamined by Mr Sellar, he said he did not remember whether there was any term for the mortgage in the authority. He understood that it was for a long term, and did not think ■ that it was necessary to put it: in the agreement.

Gilmour distinctly told him he had authority to make the second mortgage; five rears, but he did not use the word "authority" in connection with the first mortgage. That fact did not put him on his guard, i

Mr Sellar .said■.plaintiff had, according to his statement of claim,' to .'depend for his' Case on gross' and unreasonable delay;on the part of the defendant. Apparently disputes arose • over the. mortgages, hut while tuese'fwcTe: being arranged no blame could be placed upon his client;

The defence was that there was no delay, ami if there was delay the notice to complete was unreasonably short. If a-., pu^cliaser,.failed .-to. '[complete "his/ transaction his deposit was forfeit.;. The original date for completion was 11th January, but. time was never considered the essence of the contract.

Jesse J. Hills, the defendant, was then placed in the box. He had never promised or agreed to arrange the first mortgage. ' ...

Defendant .said-lie had. done every-1 thing in his power to clear his title; to the : second mortgage. Everything had been done by himself and 'his solicitors to complete the transaction; he impressed on the agents the urgorivy of completing it. In answer to Mr. Quil J Ham, witness said it was not incumbent upon him to clear the first mortgage, as it was (not in the agreement. He left the whole matter of the .• second mortgage in the hands of his solicitors. He found out in April that £OOO for' which he was negotiating to raise the second mortgage, was riot available, as a matter of fact he would never hare been in difficulty to secure the money. It wasthe notice to complete - in sueli a short'time that made, him stpjifoacß the Loan Company personally. He considered that the noticd given was unnecessary, ■'' ■

Kvprard 'R. C. land'agent, of New (Plymouth, said When : he saw the agreement lie l told Tiiiney that from the rate of interest on "the first mortgage he thought it' was' a Government advance. He absolutely 'denied telling Tiimey that the' 'first mortgage ma's foV

five years. He did hot that that he would not think of offering a property the mortgage of which closed soon. : ' ':■ .■■

The ease was'adjourneduntil Tucs. day morning next. :