DISPUTED LAND DEAL.

Taranaki Daily News, Volume LVII, Issue 250, 31 March 1915, Page 6

DISPUTED LAND DEAL.

DECISION RESERVED. The adjourned hearing of the case in which G. W. Tinning, engineer, of Wn.i tara (Mr. Ronald Quilliain) claimed th sum of £SO from J. J. Hills (Mr. 1 Seliar) was continued before Mr. A Crooko, S.M., yesterday.

The statement of claim showed that under an agreement between plaintiff and defendant for the sale of a cerfitin property, the plaintiff duly paid the deposit and was ready and willing to carry out the agreement on his part. The defendant was guilty of gross and unreasonable delay in performing the contract en his part. Thereupon notice was :.;i'-'-en plaintilf by defendant requiring the l latter to complete. The defendant had I not completed the sale, wherefore plaintill claimed the sum of £SO, the amount of the said deposit. i Last court day evidence had been given in support of the claim by plainliil, and one witness —P. Hopkins, managing clerk i n the firm of Messrs Govctt & Quillaim—and for the defence by the defendant and one witness, E. R. C. Gilmour.

Yiesterday T. W. Welch, land agent, of New Plymouth, deposed that lie was present \vhe n the agreement was signed, and that Gilmour had distinctly infoincd the purchaser that he (Gilmour) i knew nothing about the term of th.! first mortgage, but that the second motf.gagc could remain for five years; nud lie also showed the purchaser his authority for saying so. E. P. Webster, secretary of the Loan Mortgage Coy., gave evidence to- the effect that some time early in the transaction defendant had arranged for a release of his securities and payment of t'fiOO, but that this was never complete), and before May 4th defendant arranged with the Company that they should accept a deposit of plaintiff's securities.

Counsel addressed the Court at grout length. For the defence, Mr. Seliar raised two points; first, that there wat- ;io gross or unnecessary delay, such as to justify plaintiff in giving them one week's notice to complete, and that, even assuming such delay, the time given to complete was unreasonably short. Mr. Seliar emphasised the fact that the time for completion of the contract was not the essence of the contract, and that even if it was such condition had been, waived, by the plaintiff. Mr. Se'.lar pointed out that the delay from the dale of the contract until April 14th was due to the plainiff insisting on a first mortgage for five years at six per cent. This was not provided in the contract, and plaintiff had no right to insist upon it, and, although the defendant endeavoured to comply with the plaintiffs wishes, defendant thereby was not guilty of delay. It was proved that defendant had arranged for £OOO to clear his title, and that the opportunity for using that £6OO was lost owing to plaintiff | insisting on a five years' first mortgage, j Immediately the defendant found tlint

lie could not obtain the £OOO, he approached the Mortgage Loan Company on April 16th for release of securities n;i another basis. This waa at first refused, but was eventually agreed to before May 4th. Mr. Sellar indicated that if fourteen days' notice had been given to 'ionplete instead of seven days, .defendant would have been, and, in fact, was able to complete withi n that time. In any case, he argued, the onus of proof of delay, and that sufficient notice had been given, waß on plaintiff. For the plaintiff Mr. Ronald Quilliiim contended that the evidence, both of the plaintiff and of defendant, showed limfc there was unreasonable delay on the part of defendant, and for this reason plaintiff was justified in giving notice to complete. He further submitted that the notice given was reasonable and sufficient, having regard to all circumstances. As regards the term of the first mortgage, the evidence of the plaintiff was that he was given to understand that it was for at least five years. There was, however, a conflict of evidence on that point, The fact remained that defendant/ took upon himself to arrange 1 for its extension to five years, and in endeavouring, to do so, defendant caused great delay, especially by making two arrangements with plaintiff, which he had no authority to make. The unreasonable attitude adopted by defendant was show n by his solicitor's letter, which stated that the agreement was not va'id! and could not be enforced by plaintiff, but which lliey themselves endeavoured to take advantage of. He emphasised the harm caused to plaintiff by the delay, and referred to the minor points raised, all of which defendants were forced to abandon, but which caused a further delay. The term of the second mortgage was not stated in the agreement, and although it was not contested now that this was for five years, it caused further delay. Plaintiff, however, met defendant in a reasonable spirit and agreed to a fresh term. The deal really went off through the failure of defendant to clear liis title, though warned by plaintiff that this was required. On April 3rd defendant wrote that he was

arranging for its discharge. On Ap'-il 17th, and again on April 28tli, plaintiff ascertained that! this had not been (lis charged. Defendants evidence, en this point was most unsatisfactory. He did not know when the £6OO, for which he said that lie had arranged, became available. He would not sav what steps !>e had take,, between April 3rd and 28th to clear his title. He emphasised the point that defendant did not approach plaintiff with a view to having the time given in the notice extended; indeed, it was not until the case came before the Convt that it was stated that the time was too short. Defendant in cross-examination had stated that the time was too short, because he was often away two or weeks, but counsel contended that Hie transaction could not he hung up for that reason. The Magistrate, reserved his decision.