SUPREME COURT.

Taranaki Daily News, 23 August 1919, Page 6

SUPREME COURT.

YESTERDAY'S SITTING, (Before His Honor Mr Justice Hosking) The sittings of the Supreme Court at New Plymouth were continued yesterday before Ins Honor Mr Justice Hosking. CIVIL BUSINESS. STANNARD v. NICHOLAS. The case of Stannard v. Nicholas, a claim for specific performance ot an agreement was continued, legal argument being heard by his Honor. Mr F. Campbell Spratt appeared for plaintill and Mr P. O'Dea for defendant. Decision was reserved. TORSTONSON v. WHITING. Agnes Mary Torstonson (Mr L. A. Taylor) applied for an order to compel Caroline Whiting (Mr P. O'Dea) to rectify a contract for tht» sale of land, and to execute transfer. ! Mr Taylor stated in outlining the case that at the time of the contract for the sale of the land, the plaintiff resided at Mokoia. Defendant was a widow, and resided on the property, part of which it was agreed to sell. The section was placed in the hands of Mr Morrissey by defendant, through her son. The land was advertised for sale as three onethird acre sections. It appeared, howover, that no proper steps had been taken to ascertain the exact area of the parcel of ground to be sold prior to the contract being entered into. Plaintiff saw an advertisement in the paper advertising a piece of land to be sord in three one-third acre sections, and she went with her husband to the agent's office and asked to be shown the land advertised. They saw the section on June 6. Her husband, who was a builder, and had some knowledge of .'and areas, doubted if there was an acre in the land, but the agent's clerk who was with them assured them that there was an acre. Nothing was done on that occasion, and the next day plaintiff telephoned from her home to the agent, wiio again assured her there was a full acre lin the block, and said it was to be surveyed into three sections. She asked him to do nothing in the meantime in regard to the subdivision. On June 9, j plaintiff went with defendant's son and the agent over the land again. The i same assurances as to area were given land plaintiff again asked that the subdivision be postponed, and merely the acre boundary surveyed. She was anxious to have it subdivided into four sections and was prepared to pay for the extra work. They then went back to the agent's office where the contract was signed by plaintiff anrr handed to defendant's son to get his mother's signature. This was returned the following day duly signed by defendant. It was then found that the section contained only 3 roods 3 perches and defendant, through her solicitors, purported to rescind (he contract. The Judge: And you want specific performance with abatement?

Mr. Tcylor: Yes. Continuing, he said the defence admitted the area of the ground. He pointed out that the schedule to the agreement merely stated that tlu section was on Tawhiti Road, Hawera, and contained one acre. A description of the parcel of ground had been attached to the agreement after signaturi!, and that description proved incorrect. Mr. Taylor said he would submit evidence as to the identity of the land., Evidence was given by plaintiff on tlio line of counsel's address. In reply to Mr. O'Dea, witness said that she considered that when the section was bought in June they paid top market price at £6OO per acre. She did not know that the land was worth more than that now. She did not know that the agent had said he could get more than £6OO now for the 3 roods 3 perches. Percy Bernard Tortonson, husband of plaintiff, also gave evidence. Robert Patrick Morrissey, land agent, Hawera, said he had no signed authority from Mrs. Whiting to sell the sections in question. Her son, who was about 24 years of age, gave him instructions. He believed the advertisement put into Court referred to the sections belonging to Mrs. Whiting. To make certain about the area of land, he had" gone, with Mrs. Whiting's son, to the surveyor's office, and they were assured that the section did contain an acre. In reply to Mr. O'Dea, witness said the description of the section endorsed on the agreement was written after it was signed. The deposit was not paid until after the error in the description had been discovered. He had not discussed the matter of mortgages on the property; he took it for granted there were none. At the time plaintiff bought he had another client, who would have paid £OOO for the 3 roods 3 perches section. Defendant gave evidence that her property consisted of a little less than two acres. She always understood that the fenced-off portion on the Tawhiti road contained one acre. She said that if there was not an acre in that portion she could, not sell the section, as otherwise it would have brought the boundary too close to her back door. She could get more than £6OO for the 3 roods 3 perches now. A. Whiting, son of defendant, deposed that the fenced-off section, which it had been decided to sell, had always been known as an acre. When Mrs. Tortonson came to see the section she never questioned the area of the land. To make certain of area, he went to the surveyor's office and saw the plan, and was assured there was an acre in the' section. Mr. Morrissey was the first to inform him that a mistake had been made. Decision was reserved.

TERMS OF A WILL. On an originating summons, the Court was asked to determine terms under the will of the late Herbert Bloorear Curtis. The case was somewhat involved, and necessitated an amount of legal argument. The plaintiff trustees wore represented by Mr. Ronald H. Quilliam; Mr. J. C. Nicholson appeared for the widow, Mrs. Caroline Curtis, who was also executrix under the will of the late O. K. Curtis, one of the beneficiaries under the will; Mr. A. H. Johnstone appeared on behalf of all the children of the testator, with the exception of 0. K. Curtis and Mrs N. M. Kidson, both deceased; Mr D Hutchen represented the heirs (three children) of the late Mrs. N. M. Kidson. The question for the Court was as to whether, by reason of the death of Oscar K. Curtis and Nora May Kidson, both of whom were beneficiaries under the will, but who died before the period of distribution, their shares lapsed and fell back into the estate of the testator, and whether if the shares lapsed the estate was i& ngari to tbote sham,

DIVORCE. Tn the divorce ease of Kendall v. Kendall, after additional evidence had been submitted on affidavit, the court made an order for a decree nisi which may be made absolute in three months, costs £ls ITis and disbursements being ?llowed against respondent. A motion for the. annulity of the marriage of EupJiemia Lousia Sainsbury (otherwise McKcniia) with Robert MeXcnmi, was grunted on the application of Air T. B. Crump (Eltham).. RICKARD v. RICKARD. William Rickard (Mr. Ronald 11. Quilliam), instructed by Mr G. H. Ryan, Hawera) petitioned for the dissolution of his marriage with Mabel Alice Rickard, 011 the ground of desertion. Petitioner stated he was married in September, 15)02. There were four children, Relations between him and his wife werj quite 'happy. Soon after the birth of the last child, while they were living at Hawera, his wife was in poor health, and she wnt to Wellington to consult a doctor. As she did not return in a reasonable time witness U(ent in search, but inquiries among her friends in Wellington elicited ito information about her. Since then he had not seen her or the baby whom she took with her. Her own relatives knew nothing of her whereabouts. In 1910 he heard that she was staying with a Mr. Livingstone at Lyall Bay. He went to Wellington and saw Mr. Livingstone, who said she had left the previous day, he thought, to go home. She did not come home, and he had seen or heard nothing of her since. He could assign no reason for her leaving home. He notified the police in the first place, and had made consistent inquiries for his wife all the time. An affidavit from Mr. Livingstone was put in. A decree nisi was granted, to .be made absolute in three months. In the cases of Emma E. Wilson (Wellington) v. Fred. 0. Wilson, and Evelyn Brett (New Plymouth) v. George L. Brett, motions for decrees absolute, with custody of the children, were granted on the application of Mr. H. K. Billing. BANKRUPTCY. On the aplication of Mr T. B. Crump discharge from bankruptcy was granted to Norman C. Innes, contractor, Eltham. OTHER BUSINESS. In the case of Williams v. Knight, an application for dissolution of partnership, counsel reported the matter had bean settled. It was stated that in t.lie case of the New Zealand Loan and Mercantile Agency Co., Ltd. v. Robert Willis, a claim for £4112 and interest., art application would be made for an adjournment.