CLAIM ON AN INDEMNITY.

Taranaki Daily News, 22 December 1916, Page 7

CLAIM ON AN INDEMNITY.

*• SUPREME COURT DECISION. Judgment for defendant with costs as if £3lO were in dispute has been given by Mr. Justice' Chapman In the case of Daniel Chant, New Plymouth (Mr. A. H. Johnstone) v Frank Rhodes, Napier (Mr, Hallett), a claim for £3Oll 17s (id. on an indemnity with respect to a mortgage. The ease was heard in New Plymouth on November 21, decision being reserved. "This ease raises a question of law purely," said His Honor. Evidence was culled, but there was in my opinion no real dispute as to the facts, and if there was it related to immaterial facts/ The plaintiff was the owner of a leasehold property, held tinder the provision of the Land Transfer Act and used as a boardinghouife, in the borough of Inglewood, w-lii'cb he had mortgaged to C. W. Govolt on October 10, 1912. This mortgage replaced one of earlier date. The amount was £575. By an agreement dated September 11, 1912, the plaintiff agieed to sell to the defendant this property subject to tht mortgage. This agreement contained no special covenant to indemnity debt Thu settlement was made on October 10, and as the defendant had requested that the transfer should be to his wife it was drawn as a transfer, from the plaintiff Ic her. . . . . The property was transferred to defendant's wife, who tered into possession. The defendant, never had possession. Mr. Govett died nud after making efforts |o'obtain the mortgage, his executors sold the property at a loss on December 11, 1915. He paid the executors £lO 9s for rates, etc., on the property. On August R the holders- of the mortgage sued ,he plaintiff for the balance of iffe principal, interest and costs, £2OB 17s 10d. On August 14 he brought in the defendant .is a third party at a cost of £9 IDs 10<1. Judgment was then entered against the plaintil! for £289 ,8s Bd. He claims these three sums and interest against the defeiul.'int.

After dealing at length with the iaets and various eases in their relation to the present case, the Judge concludes; ; 'Tn transactions after the agreement by which the parties themselves carry out, the agreement in a way which departs from its terms they are usually held bound by (he way in which they effect tile .iltimnte settlement. (Maroney v. Noble, 114 N.Z.L.R. 50.} I think that 'that rule has some application here, when with the full assent of the vendor and .purchaser anothei purchaser is substituted for the, original 0119. The alteration of parties is analogoni to the modification of other terms and I hold that the original agreement was exhausted exactly as if it* had been performed according to its te'rnis."