SUPREME COURT.

Taranaki Daily News, 11 December 1919, Page 6

SUPREME COURT.

YESTERDAY'S SITTINC. SALE OP LAND AUD STOCK. CLAIM FOR PERFORMANCE OF CONTRACT. Wm. Holman Claris, Hawera, settler, Emily Ann Claris, and Franz Blattler, farmer, Manaia, for whom Mr. L. A. Taylor (Hawera) appeared, made a claim against Harry Clement, Eltham, farmer, Elizabeth S. Clement, and Walter C. W. Clement, for whom Mr. 6. D. Gow (Eltham) appeared, for the specific performance of a contract for the sale of purchase of certain leasehold estates and stock, including 58 dairy cows, etc., possession of which was to be given on August 1, 1919. According to the statement of claim it was a condition of- the contract that | defendants were to pay stamp duty on the contract, and to'<hand over to plaintiffs statutory declaration of the eligibility of defendants to hold the lenses and transfers thereof. It was alleged that the defendants had failed to pay the stamp duty and did not, until September 8, 1919, hand over the necessary declarations and transfers, and plaintiff therefore prayed that defendants be ordered to perform the said contract by paying all duties and other moneyß payable thereon and by accepting transfers of the leases and giving plaintiffs the mortgages mentioned in the contract. For the defence it was set forth in the,' statement that no formal delivery of the stock was made and taken on August 1, but that it had been agreed that the stock should be sold by auction on August 7. On the day arranged for the sale the defendants entered on the land for the .purpose of taking delivery of stock, which had not been mustered at that time, but which were subsequently mustered by Frank Blattler, as agent for plaintiffs. There was a shortage in the stock of 12 cows and five heifers, which had never been accounted for.. It had been agreed that from the proceeds of the sale the sum of £lloo should be paid to the plaintiffs. When the sale took place 12 cull store cows, which had not been specifieff in the agreement, were produced and sold. The proceeds of the sale amounted to £862 168 6d, from which the auctioneers deducted £4s'l3s 6d for commission and expenses. The £IOOO agreed upon was paid over plaintiffs by the auctioneers, and defeiK ants were debited by them with the balance of £lB2 17s. It was stated that stamping of the and the handing over of the declarations had been overlooked, but that the agreement had been handed to defendants' solicitors for the purpose of being stamped and was presented for stamping to the Commissioner and duty and fines amounting to £135 14s Id were paid thereon. The declarations were completed and handed over on August 26, before the issue of the writ of the action. They claimed to have paid, on account of the sale, and purchase, the sum of £1250. It was further claimed that the agreement incorporatcd two agreements—one for the

sale of the land and one for goods. The sale of the land was sr.id to be subject to the consent of the Public Trustee being obtained to the transfer of the lease. Defendants were always ready to complete the contract, but alleged that the plaintiffs had refused and failed to obtain the consent of the Public Trustee to the transfer of the lease. They further stated that plaintiffs had refused to complete the contract unless the sale and purchase of the stock and goods was made contemporaneously with the 6ale and purchase of' the land. The plaintiffs had also failed to deliver the | whole of the gpods and stock agreed to be sold, but defendants were willing to accept and pay for such of the goods, etc., which were available for deliver/ subject to a deduction in respect to thode not delivered. Defendants counter claimed for £3OO damages on account of the twelve cows and five heifers which plaintiffs had failed to deliver. Evidence was given for plaintiff by Franz Blattler as to the mustering of the cattle on the day of the sale. . Under cross-examination by Mr. Gow, witness admitted he had mustered ths stock, but that they were not all accounted for. He had not been instructed by Mr. Clements to muster the stock He understood that the place had been sold as a going concern. John C. Hobbs, Hawera, auctioneer the Farmers' Co.-op., certified to the account sale which showed that 53 dairy cows and the heifers had been sold. None of them were classed as cull cows. Some of them were blind in one teat, and some could not be guaranteed in calf. To Mr. Gow: If he had a herd of dairy cows offered him at £l7 per head, he would not expect to find any of them not in calf. None of the cows were in very good condition. The cows to be sold were mixed up with other stoek. Some of those that came into the ring were passed out on account of Blattler saying they did not belong to the herd to be sold. Re-examined by Mr. Taylor, witness said it was necessary to sell a whole herd at one time, or else, if anyone kept back people thought they were getting culls. Walter C. W. Clement, sawmiller and farmer, Eltham, in giving evidence, admitted that' he had not mustered and counted the stock prior to, or on, tha date for giving possession of the property, , Mr. Taylor said the twelve cull cows were not regarded by defendants as dairy cows, but the Court held that could not be sustained and the counter-claim for damages therefore was reduced to the amount of the balance of stock not delivered, which, according to the evidence of the auctioneer, was three cows. The heifers were still unaccounted for. Clements had since found one cow on the property and plaintiffs admitted willingness to allow £l7 10s for one which had died between August 1 and August

The Judge made some strong comments upon the unbusinesslike and slipshod methods in which the deal had been carried out. He said the time would com; when dealers and stock owners would take more care of their cattle, especially if prices came down to about one third of present values. In regard to the order for specific per formance some reference was hiade to the ability to give a proper title to the land, but consideration was deferred until to-day. His Honor said he would take time to consider the case. BANKRUPTCY MATTERS. His Honor intimated that he would take all bankruptcy matters at 9.30 tomorrow morning. The Court adjourned till 10 a.m. toJt '£ £ , i