R.M. COURT.

Wairarapa Daily Times, Volume IX, Issue 2855, 23 March 1888, Page 2

R.M. COURT.

MASTERTON-FRIDAY. (Before S. von Sturjier, E.M.) E. H. Elliotte, v Thomas Power.— Action to recover £SO for breach of contract in connection with the purchase, by the defendant of the Refreshment rooms at Mangamahoe, in December last. Mr Beard appeared for the plaintiff and Messrs Povmall and Devine for defendant. Mr Beard, in opening the case, said that defendant agreed to purchase the interest in the Mangamahoe Refreshment Rooms for the sum of £BSO, part to be paid in cash and the balance in

approved bills. £2OO had been paid in cash, but the balance, which was due in approved bills, had not been ' forthcoming, and consequently the contract had not been carried out, hence the present claim for damages. Mr Pownall would not admit that the bills were stipulated to be approved ones, and represented that the plaintiff could not split his damages. He now sued for £SO, and he must there- fa. fore elect to let this represent the* whole of his claim, and recognise that no after action could be taken lor the £ISQ, as this would include the entire claim, both for damages and good-will payment. Mr B&ard said that the plaintiff had the right to proceed with this present action for. jJSO as damages only, and that he could afterwards, if he thought fit, take future action for the principal amount, although at the same time lie was not prepared to say whether he would do so or not.

The Bench being appealed to reserved a decision on the point raised, E. H. Elliotte deposed that he informed Mr Power that he wanted L 350 for the rooms, 1200 bein? in cash, and the balance being in approved bills at three months and six months, not bearing interest, the stock being taken at a valuation, being paid for in cash, Mr Power* agreed to these terms, Mr Power stated that ho oould get approved bills and lie mentioned Mr Parsons' name; he also afterwards stated that lie had paid the deposit of £2OO to my agent and was therefore prepared to carry out the contract to my satisfaction. | Valuation of the stock was made on

21st December, Defendant got possession of the rooms saying that lie • would go down to Masterton on the following/day and conclude the transaction the promissory notes. Tho next day Mr Power could not get away, but ho signed two promissory notes for mo to take to Mr Parsons, and secure his endorsement. That gentleman refused to endorse the the bills unless I first did so, and I declined to do this. I went to Mr Power and he then gave me a memorandum cancelling the promissory notes, and he has not sinco given me any other promissory notes for tho goodwill, although I have been to see him time after time. I have suffered more damage than I am sueing for. I have not had the use of the balance of the purchase monpy, and instead of being able to go up to my run, I have had to stop about Masterton with my wife and family and incur £2 a week expense in board. There is also loss of time for myself, £2 a week, and various railway journeys in connection matter. Wfswnall again raised the question whether the plaintiffs action should be held to cover both damages and the balance of thepurchasemoney, and he wfould ask the Court to insist that plaintiff be asked to amend his claim to include everything, ' or else as the plaintiff also sued for for breach of contract and damages, and had not hauded over to the defendant the title deeds, he be nonsuited. Mr Pownall here asked if Mr Beard would produce the memorandum of agreement signed by Mr Power and '' handed to Mr Elliotte's solicitor, for final execution by the plaintiff. Mr Beard replied that the manuscript had been handed to him by Mr Travers the solicitor in question as an unfinished document, If it embodied a receipt for payment of tlio purchase money, the fact of it still being in his hands proved conclusively that the contract could not have been completed, and the whole money paid, or the receipt and agreement would be in Mr Power's hands. R. H- Elliotte, cross-examined by Mr Pownall:—l agreed to give Mr promissory notes to Mr Parsonffli payment of a private debt exus, and he would not accept tl® without myendorsemant. I would have been satisfied with Mr Parsons' endorsement. If Mr Parsons had received the bills the matter would have been settled. I never asked Mr Parsons simply for an endorsement without the condition that he should keep tliem, The bills were made out payable to Mr Parsons at Mr Power's request. The latter was no; told by me about the debt I owed to Mr Parsons. Mr Pownall contended that the General Manager of railways had not given a definite assent in writing to the transfer of the rooms. Mr Beard produced a letter promising assent. Mr Elliotte continuing stated that Mr Parsons absolutely refused to have anything to do with tho bills unless plaintiff endorsed them. Defendant then promised to come and arrange with Mr Persons. The former eventually refuMto complete his contract. Plaintiff litre handed in a list of expensKincurred through incompletion of angment. 'Tow Beard: Could not take action earlier owing to the matter being left in the hands of Mr Travers. He had been put to considerable annoyance through not having the bills to make use of. The bills he took to Parsons; the latter declined to endorse unless lie put his own name to them. This meant that if Power did not meet them he would be held responsible. Informed Power that Parsons refused to have anything to do with them, when the former saidhe would go and see Parsons himself. Since then Power has not communicated the result of his interview. Thomas Parsons, brewer, in course of his evidence, stated that Power had had told him the terms on which he had purchased the refreshment rooms were to be £2OO cash and the balance in two bills, which witness promised to endorse.. This conversation took place priojJio Elliotte and Power going to WellitfjP|u to make final arrangements. About the 22nd December Elliotte came to him with two promissory notes which he refused to endorse in Wir present form, but stated he wc®? take them if Elliotte would attach his own signature to them. The latter was slightly put out over the matter and went away. He had never received the bills since from Power to endorse. Since lie had refused to sign the bills for Elliotte nothing else had transpired. By Mr Pownall: When Mr Elliotte camo with tlio bills he asked him to take them back and get tliem altered so as they would be made payable to Elliotte himself to which the latter replied he would see Power again, but preferred them in their present form, as he would not be then held personally liable if they were not met by Power. These bills were produced when Elliotte came to square up accounts wiUi witness. He was never definitely to endorse the bills. By Mr Beard: He would not in any case endorse them, as they were not presented in proper form, Power had never brought the bills to be endorsed but had mentioned last week that he would do so. ra [Left Sitting,J