SUPREME COURT.

Taranaki Daily News, 3 October 1919, Page 6

SUPREME COURT.

RESERVED JUDGMENTS. The following are fuller particulars of reserved decisions given by his Honor Mr. Justice Hosking in eases which were heard at the last sitting of the Supreme Court at New Plymouth:— STANNARD v. NICHOLAS. The judgment states, inter alia: On November 30, 1915, defendant agreed, by writing, to lease to plaintiff some land in Hawera and a dwelling house and outbuildings thereon for a term of two years from September 11, 1915, subject to certain stipulations under.which defendant was to pay rates and taxes, except water rates. The agreement also contained the following clause: "It is further agreed .... that the lessee has the right of purchase of the property for the sum of £llOO exercisable the 31st day of March, 1916"—that is, four months after the date of the agreement. The plaintiff had possession under the lease, and had continued in possession up to the present time. No particular mode of exercising the right of purchase, which was qptional, was provided for. Payment of the purchase money was not made a precedent condition. The plaintiff claimed that he became the purchaser of the property, and claimed to have the purchase carried out by the defendant. The time of the. option had expired, and the lease itself had expired almost two years ago. The case for plaintiff was put on several grounds. First, that before his right to exercise the option expired he gave notice (verb ally) of his intention to exercise the right, and that plaintiff and defendant thereupon agreed to postpone completion. He next agreed verbally, pursuant to the exercise of his right, thenceforth to pay all rates and taxes and lire insurance premiums in respect of the property. The performance of Uiat undertaking was deemed to support the agreement said to have been made to postpone completion till the end of the war.| it was further set up that by the Mortgages Extension Act, 1914, the agreement for lease was extended, and was still a valid and subsisting agreement, and that the ti'e for exercising the option had been also extended, or that it must be treated as having been exercised.

Defendant considered the option to purchase ended at March, 191 li, seeing that plaintiff did not then take advantage of it, and after the end of the term he was content to let plaintiff continue in possession at the old rent because he was a good tenant and kept the place in order, although defendant knew plaintiff had it cheap. At an interview in May last defendant said he told plaintiff he could have the property at its increased value.

His Honor then proceeded to a somewhat lengthy review of the evidence and the citations of counsel in support of their submissions.

' In regard to the claim that the lease and the optional purchasing right were extended by the provisions of the Mortgage Extension Act, his Honor 9ays: The Act was one of those precautionary measures adopted at the outset of the war for the maintenance of the puhlic credit. The object was to protect mortgagors from being unduly harassed in respect of their obligations. The Act does not of itself excuse the non-payment of the principal at the due date, or' relieve the mortgagor from the due performance of his covenants, nor does it enlarge any time limited for the exercise of special rights which the mortgage may reserve to him. Whether there should be an indulgence in any of these respects is left to the Court, but subject to the chance of the mortgagee applying successfully to the Court, he might remain quiescent with respect to his overdue principal moneys and the performance of his covenant other than that for payment of interest. By section 7, subsection 1, it was enacted that the provisions of the Act should apply mutatis mutandis to agreement for sale and purchase of land and to leases of land containing an optional or compulsory purchasing clause. After a lengthy survey of the provisions of the Act and its operations, his Honor says: Upon the considerations which I have discussed, the result appears to me to be that if a lessee seeks to establish that the time within which he was to perform a covenant or exercise a privilege has been enlarged, or that an option of purchase must be treated as if exercised, he can only do so by showing some action of the Court which either directly or indirectly has that effect. There is no pretence that any such action on the part of the Court can be shown in the present case. Nor do I see how the Court's action could be invoked As then all the plaintiff's contentions fail, judgment must be for defendant with cost as if £5Ol wi\rc claimed.

Mr. F. Campbell Spratt (Hawera) appeared for plaintiff, and Mr. P. O'Dea (Hawera) for defendant.

TORTONSON v. WHITING. This is an actifcn, says his Honor, for specific performance, or in the alternative for damages. At the date of the transaction defendant was the owner of a parcel of land of some two acres in area in Hawera. On part of the laud defendant's dwelling stood, and the other portion was put into the hands of an agent by defendant's son, a youth not advanced in business notions, and tlw land w«> Advertised &t three one-third

acre sections, each £2OO. Plaintiff saw the advertisement, and, with her husband, was shown over the land by a representative of the land agent. He pointed out that to make the land up to a full acre a dividing fence would nave to be shifted nearer to defendant's dwelling house. Doubt was expressed as to the area of the land, and plaintiff insisted there must be an acre, as she wished to sub-divide it into four sections. The survey plans were s«arched, and the parties were satisfied -is to the area of ground, and plaintiff signed an agreement drawn up by. the agent on a printed form, in which the land wag described as "all that piece of land belonging to the vendor situated in Tawhiti Road, Hawera, containing one acre." The agreement contained a clause to the effect that the property was believed to be properly described, and if any error, omission, or mis-statcmentwas discovered the same should not annul the sale or entitle the purchaser to bo discharged from his purchase, -but a fair compensation should be made therefor, and be determined by arbitration. His Honor says he is inclined to the opinion that the latter clause should not have been insisted on as regards the purchaser, seeing that it was a fundamental term with her that the land should contain not less than one acre. The agreement ajso provided for the acknowledged receipt of a deposit of £25. This was not paid at the time. Plaintiff borrowed £1 from the agent and paid that amount, for which he gave a receipt. After the agreement was signed it was found that there had been an error in regard to the survey maps searched, and the land did not contain an acre. The plaintiff then agreed to pay for the area that was in the piece at the rate of £fioo per acre, but this defendant would not agree to. Besides asking for specific performance or damages, the plaintiff also asked to have the agreement recti lied so as to correctly describe the piece of ground. To claim and obtain rectification of an agreement it must be shown that the agreement did not express the intention of the parties, and what. that unexpressed intention was. To do that in the present case would be difficult, for defendant only intended to seil for £GOO the particular piece of land pointed out by the boundaries, and the plaintiff only intended to purchase that particular piece of ground if it contained an acre. As explained at the trial, the real object of claiming rectification was to have what was originally expressed in the agreement restored by striking out the addition made to it by the agent. The defence relied upon the addition as a material alteration avoiding the contract. Other points for the defence were that .the agreement did not contain a sufficient description of the land to be sold, and that no real agreement was come to by reason of the mistake made. His Honor was of opinion that the alteration of the agreement was immaterial, because it contained words which were ineffectual to describe any property of the defendant. The defence on the ground of mistake he considered more sound. His Honor held that the action failed. He was satisfied that mistake was common to both sides as regards the area of land. He found there was no contract, and technically he doubted if he could order the deposit ( £25) to be returned, but the plaintiff was entitled to have it returned, and it sh/mld be returned without proceedings for the purpose. One pound was the sum for which defendant Was responsible. The £24 balance of the deposit had been paid over to the agent by the plaintiff's solicitors, but after the defendant had repudiated the claim of the plaintiff that an acre had been agreed to be sold, and after the agent knew of this repudiation. In the opinion of his Honor the agent had then no authority to receive £24 on behalf of defendant, and the plaintiff needed, therefore, to look to the agent for it. He could not retain it against commission, even if he were entitled to any. No costs were allowed. Mr. L. A. Taylor (Hawera) appeared for plaintiff and Mr. P. O'Dea (Hawera) for defendant.