MAGISTRATE’S COURT.

Temuka Leader, Issue 2708, 6 September 1894, Page 4

MAGISTRATE’S COURT.

Geraldine Tuesday, Sept. 4, 1894,

[Before 0. A. Wray, Esq., S.M.] CIVIL CASES.

John JamesMcCaskey v. Amos Sherratt and James Turner Alternate claim, £2310s 6d damages, fronrthe former for alleged misrepresentation in sale of pro* petty as to the ownership of a certain shed thereon, or from sthe latter party for the removal of the said shed, from the property aforesaid. Mr F. Wilson Smith appeared for plaintiff, and Mr Hay for defendant, Mr Amos Sherratt. Mr James Turner was undefended. At the request of Mr Hay, all the witnesses were ordered out of Court. Mr Wilson .Smith said he brought his case under section 54 of the Magistrate’s Court Act, which enabled a plaintiff if he had any doubt as to the person frpm whom he is entitled to redress he could join two or more defendants to sue with iutent of ascertaining which is liable. John James McCaskey, photographer, Geraldine, plaintiff, deposed: On the 10th of July I saw Mr Sherratt re buying property, section 160, as it stood, including house, etc. It was left over till the ldth July to allow Mr* Turner a first chance to buy, and I finally closed the bargain on the 18th. Mr Sherratt said he wanted £l6O for the property as it stood. When X saw him on the : 17th he said it would be as well to give Mr Turner; a chance; to buy, and we gave him till Wednesday to consider. Mr Turner did not ;come to terms on the 18th, so Mr Sherratt asked me to come to his office .and square the thing up. The shed was mentioned that day. . Mr ; Sherratt said “It is a big shed, and I will give you the half of it.” 1 objected, and he then said that M r Turner had put the shed up, but that he had reduced his rent from 8s to 5s some five years previously and Mr Turner was to put up what buildings he wanted and keep the place in repair, and he would not allow him to remove the shed. From that 1 understood that the shed went with the property. Mr Sherratt the property was mine, including the shed. I then agreed to give the £l5O for the property. Shortly after I received the title of the property. I saw Mr Turner afterwards, and he never mentioned about the shed. I spoke to Mr Turner, who was still in possession of the house as a tenant, t hat I, wished to. use some iron off the shed in building a shop. He then told me the shed was bis, and threatened to lock me up if I touched it. I then saw Mr Sheratt, who said, “I transferred the property to you on July 23rd, and pan do nothing, for you.” ; I then went back, and the shed was being polled down. I then instructed my solicitor to send him a letter asking him to desist, but he continued, and the shed was soon demolished. Mr Turner took no notice of the letter. I then saw Mr Sherratt, who again said he could do nothing in the matter. I then instructed my solicitor to find out who was. the responsible party, and he wrote to Mr Sherratt, but received no reply. The value of the shed was arrived at by practical men. To Mi Hay: I had two interviews with Mr Sherratt before the bargain was completed, but the question of the shed was not brought up the first time. I said I would take the property as it stood. The shed was mentioned at theinterview when the bargain was finally settled. The memo, produced looks like one that Mr Sherratt wrote and read over to me then, but I don’t remember it reading “ Sold to Mr McCaskey one house and land only.” The word “ only ” was not used with my consent or knowledge. I don’t think the writer intended that any such expression should have been used either. It was at this interview that, 1 brought up the matter of the shed as 1 wanted to be clear on the point. I was quite aware before the bargain was struck that Mr Turner had put the shed up with his own money. Mr Sherratt did • not say that Mr (Turner would have the right to the shed. I intended to take down part of the shed and use it in connection with my premises and let the other part remain. Before the deed was signed Mr ■ Sherratt never said that I would have to make arrangements with Mr Turner re the. shed. . .All the conversation 1 heard between them, immediately after my bargain was struck, was as to notice to quit. 1 ; don’t rewpmber saying after the affair was settled : h J don’t think Mr Turner has any right to remove the shed now it has gone out of your hands.” Idid not go to Mr Turner re the shed till his notice to quit expired. Before any trouble arose I saw Mrs Turner and gave her the notice to quit. She got in a temper and would not take the notice. She said they had put up the shed or paid for it. I never said then “ it is not the shed I want but the house.” I said if they had any agreement with Mr Sherratt they ought to go to him. When I went to Mr Sherratt lsaid“ Mr Turner is removing that shed.” Sherrat said “I have nothing to do with it, the property is out of my hands.” To Mr Wilson Smith: I did not read the memo, of Mr Sherratt’s, and did not understand that the word “only” was in it.

Thomas Baxter, carpenter and builder, Geraldine, deposed : I know the property bought by Mr McCaskey from Mr A. Sherratt. I estimate the value of the shed at £23 10s 6d. The value of iron is £l4 6s; ridging, 17s 6dj posts and sawn timber, £4 7s; labour, £3los { palls, 10s, We counted the iron as new, as it waa as good as new. We carefully went over the shed. I went down with Mr McCaskey to Mr gberratt’s on the day the shed was removed to buy iron. Mr McCaskey mentioned that he intended using the iron off the shed for bis shop, but Turner was removing it. Mr Sherratt said “ I did not allow Turner to remove anything from the section,” and Mr McCaskey laughed and said “ Well, he is removing the shed and I can’t stop him.” Then there was a long conversation relative to what had been done about buying the property, and Mr Sherratt said—la the presence of his son, I think—“Of cmtse, when I sold you the property, I sold it as it stood/' Mv Sherratt did not say “house and land only/' #nd did not bring any memo, to show that. To Mr Hay : Mr McCaskey and 1 are on intimate terms. 1 am perfectly satisfied that the Oft iron cannot be bought iu Geraldine for a less price than w--> valued it. I know the iron is Oft iron. I think 22s a cwt a fair price to charge for iron, not 21a, There wero 84 sheets of iroi4.- We took the trade weight in valuation, and did uot weight it. This item for £3 lOs labour would not i cquire to come off the estimate, whether Mr McCaskey wanted to take down the shed or not. Galvanised iron unless removed is as good in ten years as when put op. The posts would depreciate in value.

To Mr Smith: The 84 sheets of iron I valued at the coat it would take to replace. Taking the shed altogether the iron was in good condition and the posts in fair condition. I am perfectly sure as to the conversation I heard between Mr Sherratt and Mr McCaskey. Mr Sherratt also said be held over the property to Mr

Turner on better 'terms than to, Mr McCaskey. Wm. Waters, builder, Geraldine: At Mr McCaakey’s request I ■valued a shed. The estimate I made with Mr Baxter. Iron, fl 4 6s, 9ft sheets; ridging, 17s 6d ; ; posts, £2 ss; sawn timber, £2 2s; labour, ‘ £3 10s; nails, 10s. Those estimates are fair, and made with every care. To Mr Hay:l did not see the building to estimate it, but had seen it before. I valued it according to the description given to me. I saw the area the building spread over and judged what it would take to cover it.

Mr Hay submitted that the words “house and, land, only” in the memo? random implied that something was excluded, and that something must have been the; shed. The action brought against his client was an action of fraud, and he submitted that where fraud was alleged, fraud must be proved up to the hilt. Another point in favour of Ms client was that Mr Turner had offered him £l5O for the property irrespective of his arrangement about the shed, so that this was really a better offer than Mr MoCaskey’a. He further submitted that the case was outside the jurisdiction of the court altogether. He maintained that a' right to remove fixtures was an interest in the land just as much as the right to remove crops. Mr Wilson Smith thought that his learned friend’s remarks were very far fetched. The title in the present case only arose incidentally, and the court had the power.in this instance,; to adjudicate thereon.

Mr Hay submitted that the title in this case did not rise incidentally. The subject of this action was Mr Turner’s right to remove the shed. As; lessee Mr Turner was.plaintiff's predecessor in title. Another matter he might refer to was that plaintiff had to prove that he had suffered damage. His learned friend should have brought, his action in another way with respect to warranting of title.

Mr Wilson Smith contended that it was not. a question of title, as ; far as the defendant, Mr Sherratt, was concerned; the action was taken on the contract. Mr Sherratt, according to his learned friend, admitted that the shed did not belong to him. • ■ ■ ,

Amos Sherratt, merchant, deposed : Until this sale I was owner of a £-acre section at Geraldine, containing a honse and shed. Mr Turner had been tenant for, about five years, and had ejected the shed in question. The arrangement between us was; He wanted me to build a stable. He offered me 6s a week tent and would build the stable himself, provided he had a right to remove it and he would stop in the house as long as he remained in Geraldine. Mr McCaskey came to get a section, and . 1 told him I would have to see Mr Turner re his section os 1 had offered it to him several times. 1 told Mr McCaskey then that I wanted £l5O, and he said '‘ What about that shed that Mr Turner uses.” I said “ I have nothing to do with that; it belongs to Mr Turner,” Then we made the arranger meats, and I wrote them down on papery “House and laud only.” He saw me write that. The price was agreed on and the deeds and all arrangements madei It was on the 20th. . Just as we had finished Mr Turner came down and said'“ ph. I’ll .takethat section, ” and £ told him he was too late. I then gave Mr Turner fourteen days’ notice to quitJ After , the deeds : .were signed, and the fourteen days bad expired, Mr McCaskey came apd asked me about the -shed before it . was removed. l ; sadd,“l have nothing to do with it.” Mr McCaskey. said, “ I bought the laud with the abed on it, and shall stop Turner ; from removing it.” 1 said, “ He has a right to remove it, and you can do what you like. ’ I can do nothing in the matter.” Mr McCaskey said, “ It, has gone out of your hands now; it; belongs to me.” , • Some time after he came, and said, “Turner is taking that fihgd off; what am Ito do? t bought the land with -the shed on it.” 1 said, “ ¥es, the shed was on the land " when you bought it, bat Tamer Had arigbt to,remove it, and you knew that' all. the time.” Mr Tom Baxter was there at the time, There ■ was no other interview when Mr Baxter was present. I don’t know where the receipts for the cost of the shed are, but whatever, they are they are what the material cost. I think Mr Turner told me the shed cost 12s to put up. According to those receipts in Court, which are correct, the shed cost about Mr McCaskey told me he was going to taka the .gplyauised iron from the shed, and use it for his shop, I told him it would be no use for his shop, a* there were too many holes it, and it would }et water in. We supply 9ft iron for shops, and the iron on the shed was Bft. 1 don’t think the iron on the shed was worth more than Is per sheet, and would be worth altogether about £4 to £4 10s, allowing for depreciation, etc.

To Mr Wilson Smith : Mr McCaskey told me be was waiting for the iron. Mr Baxter yas present at a conversation we had, but his otetemPllte are not correct. When you asked me to I}# fitness against Mr Turner I said (( I will go t.O Court and swear that McCaskey bought the land without the shed.” You said u This is something new,” and when Mr McCaskey came in ha said be bought the land with the shed on it. X said (f But you understood 'that it belonged to Mr Turner all the time.” I was never asked for my memo., or 1 would bare shown it. To replace the shed now I could not tell what it would cost without going into the metier. I hardly think I got the full value (of Jhe property. It cost me £2OO. " *

To Mr Hay: It was after Mr MeCasfepy got his title that he wanted the iron for his shop, but when he first came after he bought the property he said he wanted the shad for a stpdio if he could have it. The memo, read over to Mr McCaskey in my office and produced in Court has not been Itered since it was written.

James Turner, cordial manufacturer, Geraldine : I have occupied a section in G©toJ4ine, and had an' arrangement with Mr Sherratt that all the buildings I put up I could take off, J put up the galvanised iron shed in question, I got the material from Mr Sherratt. The accounts produced, amounting to £9 Is 9d, make the total cost of the material. The labor post 10s, and the total cost of the shed was undsv £IQ. The posts were rotten when taken down and pu}y fit for firewood. Snifl? of the iron was torn in taking down. If Mr McCaskey had made mo an offer for the sho j as It. stood I would have taken £5 for it. Mr Sherratt offered me the auction for £l5O, irrespective of my rights of tho shed, J. took a fourteen days’ notice from Mr Shprratt. I got notice from Mr McCaskey to quit after the shed was taken down.

To Mr Smith : I understood that Mr Mf/Caskey had bought the section, and j neoer motioned anything about the shed. M)P SfcOasJfcy knew that 1 built the shed. Some mouths behove MffCa:!; ey bought the property he asked me if I had bought the property, and I told him that my agreement was that all I put on I could take off. JJptil I pulled the place down Mr McCaskey never gave me notice tb«( {fee »iwd was his.

„ Jessie. Turner, wife of James, Turner: I remember .on the Bth Angust r Mr McCaskey came to my house and gave me a notice to qnit. - The shed was then taken down. Mr McCaskey owned that he knew the stable was oars, ajod that we biiilt it. Tasked him, if Mr Sherratt sold him the stable and he said “ no.”

Charles Harding, r employee of Mr Turner : I had a conversation; with Mr McCaskey: about the 25th or 26th of July. He said he wanted to get out of his honse by the middle of August, and he would have to take 1 down all his outbuildings. I said “Mr Turner will want to take down his outbuildings too.” Mr McCaskey said “ Oh no,' he wont take down the shed, the property belongs, to me.” I said “Mr Tamer put the shed ■up.” He ; said' “I know that, but I bought all the buildings on the property from Mr Sherratt.”

This closed the case, and His Worship reserved his judgment till next court day. '•* James Tamer v., John Farrell.

This was an application made by plaintiff for a rehearing of a case.heard on the previous court dijr. James Turner, plaintiff, stated that he was not satisfied with the judgment obtlie justices; they had not allowed him for the foil quantity of enipty; bottles not returned, nor the nett price they cost him. - 1 '

' His Worship said that here was no appeal from the justices to him. If plaintiff wasdissatisfied the only remedy he had was to,appeal to the Supreme Court. The only grounds on which he coaid grant a rehearing were if plaintiff had discovered ant fresh evidence. Mr A. White,'on behalf of the Justices of the Peace, said they, had no desire for a'rehearing of the case, but were, quite satisfied with their judgment. The application eras refused. The court then rose.'