SUPREME COURT.

Gisborne Times, Volume XXVII, Issue 2616, 25 September 1909, Page 7

SUPREME COURT.

CIVIL SITTINGS. ' (Before His Honor, Mr Justice Coeper, Friday, September 24.

YVJLSthN V. THE LATE JOHN ’ HARDING’S EXECUTORS.

• In the Supreme Court yesterday, the hearing was resumed of the case in which Godfrey Frank Wilson and liis wife sued Frederick Hall and Oswald Sheet, executors of the wi}l of the late John Alfred Harding, for specific performance of agreement in respect to the transfer of a house or £I2OO damages. , ■ Mr L. T. Burnard appeared for the plaintiffs and Mr J. W. Nolan for the defendants'. lan Simson Si rose n, land and estate agent, of Gisborne, spoke'as to a conversation 3ib had had with tlio lato Mr Harding about the marriage of the latter’s daughter. Witness had remarked that he believed in'looking after his daughters and letting his sons look after themselves. Mr Harding had said that as the young people seemed ■very fond of ■©stch ofhor ho held on his consent to the match. Asked what he was going to give his daughter, lio had replied that he was going to give her the house he was then building. Ho had further remarked that he believed in young people battling for themselves like he himself had had to do. Mrs Irene Wilson, daughter of the late John' Harding, gave evidence to the effect that after her engagement avith her present husband her father had said he would give her a house or an allowance, whichever she preferred. The witness chose a house, and her parent added that in that case she would always have something. Her father stipulated that they should be married within twelve months. Later the witness had been consulted as to the building of the house, and had chosen the wall-papers, etc. She was married within the time prescribed, and on returning from the honeymoon, went with her husband into the new house, which her mother had got ready. By His Honor: Her husband had furnished the house out of the sum of £IOO his father had given him. Her father gave her no wedding present apart from the house. After the wedding Mr Harding on one occasion remarked that the garden was untidy, and said he thought Mr "VY ilson should take more interest in the place as he was doing it for himself and no one else. Her father was inclined to put business matters off as a rule. Y* tnes> and her husband had lived in the house since their marriage, but for a period of nine months it was let furnished During that time the witness received the rent through her husband. By Mr Nolan: After her lathe:’s death witness had spoken to her mot-mr about the house. Mrs Harding had said that if it were not transferred she would make it up to her daughter in other ways. Quite recently Mrs Harding had told witness that her father had said that he had not given her the house, but had intended her to have it rent free as long as she and her husband stayed in Gisborne. Certain books were produced showing that the ground of the house was, before Mr Harding’s death, a portion of certain partnership property, in which Mr Hall had a share. The expenditure on the house, however, was Mr Harding’s. Since Mr Harding’s death the accounts had been adjusted. Mr Hall had released the property in present dispute from any partnership claim, and it was now part of the deceased’s estate. The net value of the estate was something like £21,000. George Grant, surveyor, deposed that certain, plans (produced) represented the property in dispute. Mr Wilson (recalled) said the fence dividing the house he lived in from Mr Hall’s property was in existence before the erection of the house wag started. Chas. Francis Scott, medical practitioner, said lie was the late Mr Harding’s family doctor. He remembered being called in by the late Mr Harding to attend Mrs Wilson on one occasion. Mr Harding had shown him round the house, and said he had given it' to his daughter as a wedding present. Walter Henry Clayton, builder, said that Mr Harding had employed him to build the house, saying it was for his daughter. Miss Harding was frequently at the bouse while it was in. course of construction and Mr Wilson suggested several alterations. On one occasion when the witness-went to Mr Harding about an alteration, the other had said, “I think I’m giving them enough with the house.” He had passed other remarks that gave witness the impression that the house was for the daughter.

This concluded the evidenco for the plaintiffs. , „ Mr Nolan contended that the house was never intended as a gift, but for the plaintiffs to live in rent free. He would submit that the evidence had not clearly proved a specific, agreement in the matter.

Georgina Harding, widow of the late John Alfred Harding, gave evidence. \Vitness had had no -conversations with her husband about the house.- On one occasion, however, she heard him talking to some carpenters, who were working on the house, and asked him if ho intended it as a. wedding gift for his daughter. He replied in the negative. Mr Burnard objected to this evidence being admitted, but His Honor, after some argument, said he would take it subject to Counsel’s objection. Witness, continuing, said her husband had said he only intended his daughter to have a life interest.in the property. After Mr Harding’s death, the witness spoke to her daughter about the place, and told her that in any case she would carry out the deceased’s last wishes and the Wilsons should live rent free. This was equivalent to a yearly allowance of £6O. John Rogerson /Little, sanitary and building inspector, said he remembered Mr Harding showing him the plan of' a house from Mr Wilson’s father, and asking him to get out specifications and an estimate. Witness estimated the cost at between £7OO and £BOO. ’Mr Harding said he did not wish to spend so much as Mr Wilson might he shifted by his firm at any time, and in that case he might not get enough rent to pay the interest. Witness understood that Mr Harding w.as building the house for. his daughter to live in. Reginald Oswald Skeet said that in 1906 he was working with his brother as an architect. He saw Mr Harding about the house the Wilsons were now living in and told him it would cost about £6OO to build. He said the house was for his daughter, Irene, so long as she lived in Gisborne. Mr Nolan submitted that there was not sufficient evidence to establish a verbal contract, and cited cases in support of his legal arguments. It was not shown, he said, that, the deceased had ever promised to give his daughter the property outright. Mr Burnard pointed out that it was on Mr Harding’s promise that the plaintiff’s had got' married within twelve months. It' must have been perfectly clear to Mr Wilson that any assistance in the shape of free use of a

house might at any time fail in its object through his being moved from Gisborne, it was on the understanding or something more substantial that he got married when he did. . <His Honor said that it wa s simply a question of fact. A contract in consideration of marriage according to the Statute of Frauds should bo- in writing. In a case of part performance, however, it be ’fco.lceii outside bxio statute, and the question to be decided was vbother there was a promise made by Mil Harding, and whether such promise was made in consideration of marriage. On the latter points liis Honor was satisfied that whatever promise was made, was made in consideration of the marriage. _ One had to review the surrounding circumstances to consider what that promise was. His Honor considered the circumstances of Mr. Wilson at the time of his marriage afforded a key to the situation. Mr. Wilson was only getting 1 30 a year, and was enabled to marry owing "to ihis father-in-law’s action. The part performance of the agreement was sufficient to take it out of the statute by the couple going and talcing possession ‘after their marriage. Wliat was required was a possession tha/t was manifestly referable 'to some contract, or if not referable to any contract could have been treated as trespass. _ 'With regard to the alleged contract in this case, Mrs. Harding said nothing inconsistent with the statement made by the witnesses for the plaintiffs. In His Honor’s opinion Mr. Harding had desired to benefit liis daughter so that she should have some home for the rest of her life independent of her husband. It was significant that the Wilsons had received no wedding present, and it seemed that there was sufficient evidence to establish a contract to settle the house on Mrs. Wilson, and to settle it on .her in such a way that Mr. Wilson could not turn it to liis own use beyond residing in. it. In reply to His Honor, Mr. Burnard stated that liis clients would have no objection to such a settlement beiing made.

The Judge then intimated that the terms of the decree would be settleo in Chambers. The property would Jbe, transferred and settled on Mrs. Wilson for life, with a reversionary interest to the children, or next of kin. This decision was not to be considered as any expression of opinion as to the division of the .rest of the estate under the terms of the will. His Honor added that the .trustee? had acted perfectly properly in the matter, and had they transferred the property without legal authority, for so doing they might have been subject to other claims.

Costs must come out of the estate on the middle scale, as on the basis of a claim for £SOO.

A FOOT RACE AND ITS SEQUEL. The sequel to a local pedestrian event that came off last month' occupied the attention of the Court in the afternoon, when Robert Peterson sued Arthur Turtky Webb for the recovery of £412 stake money. The statement of claim set out that the money -was deposited with H. Burrows, on August 12th, to abide the result of a footrace between James Sexton and Michael Griffon. The race came off the same day at Witters’ paddock, Makauri, near Gisborne. Before the conclusion of the race the plaintiff, in the presence the defendant, instructed the said ri. Burrows n’ot to pay out the stake money. The defendant, nevertheless, received the stake rfioney after the race, though he knew this was paid against the directions of the plaintiff. The latter' had demanded its return, but this had been refused. The defence was a denial that the plaintiff had deposited the money with H. Burrows, or that he and the defendant had made an agreement to each deposit the sum of £412 before the footrace. The defendant admitted that on the conclusion of the race he received a sum of money in notes under instructions from Michael Griffcn, the winner of the race, but was unaware that H. Burrows had received any instructions not to pay the same. The whole of the money was handed to Michael Griffen, and as a further defence the Gaming Act was pleaded. Mr. L. T. Burnard appeared for the plaintiff, and Mr. G. Stock for the defendant.

Mr. Burnard, in opening the case, recalled the fact that the same parties, Sexton and Griffen, had raced previously, on which ocasion the stake-holder refused to pay on instructions from one party. The other party sued for the amount of the wager, but lost bis case under the Gaming Act. A second race was arranged, but while it was in progress it became obvious to Peterson, who had heard certain rumors, that Sexton was not trying. He then ordered Burrows not to pay over the money, but the latter handed it to Webb across Peterson. Peterson told Webb that -he had got his money and, he wanted it back. Webb then appealed to Constable Pratt and Constable Dandy for protection. The cause of action was that this was a contract within the Gaming Act, and that the plaintiff could terminate any time before the money was paid over. His Honor: But Burrows had the money, not W«bb. I don’t see you have any cause of action against Webb unless you can prove that he received the identified notes. . Mr. -Burnard: I think we can prove that in any case. His Honor: -It seems to me there are two points to be got over. The first is the Gaming Act, and the second is 'that you are not suing the stakeholder for wrongfully paying over the money, but the person who received it. Harry Aston, bookmaker, remembered being asked- by Mr. Peterson to arrange a one mile footrace between Sexton and Griffen for a stake of *£3oo. Mr. Peterson was in hospital at the time, and the witness arranged that Burrows should be stakeholder and pay over the stakes to the backer of the winner. In all the witness' received £235 from Mr.- Peterson, apd paid £3OO to Burrows.

By Mr. Stock: Some of the witness’ money was on Sexton. Mr. Stock: You tried to take’ means to ensure -his winning, didn't you ? No. . ; Witness denied that he had said in the Coronation Hotel to Mr. Walter Bp-ward, who was to have started the race, that if he would give Sexton a flying start -it was worth £5 to him from the witness and Petorson. Counsel: If Mr. Howard will say that such an offer was mad© to him by you, it will not be true, then?—No. Witness had backed Sexton in the first race, but was not aware that he had said in the Magistrate’s Court that he had been told to run stiff, hut had slipped his employers up and won.. iiobert Peterson, an employee at'the freezing works, said lie paid £ll2 to the stakeholder as an extra balance of stake money before the race. The race came off on August 12, and witness was there, as were Burrow s and Webb. Burrows had the money with him in what appeared to be notes. Towards the end of the race the witness was standing on the right of the stakeholder, and Webb was standing next. As the race was nearing a conclusion,

the witness tapped Burrows on the shoukler and told him not to pay over the stake money, addling tliat lie would hold him responsible if lie did. Webb was standing close by and must have heard. Six or seven yards before the finish of th© irace, however, Burrows handed over the money to Webb. Witness said, ‘‘Now, Webb you’ve received the money. Be careful what you do with it, as I’ll hold you responsible. You distinctly heard me notify Burrows not to pay over that stake money. Now you’ve received the money I hold you responsible for that'money. Webb then went to seek police protection. Witness had had a bet with YVebb apart from the stake money. By Air. Stock: He was putting in the £ll2 for other men. Counsel: How much was your own money?—£23s avas my own solid money. YVhat are you?—A slaughterman. Witness went on to say that his earnings were £7 or £8 a week for seven or eight months in the year. Counsel : You do some betting?

The witness objected to answering the question, hut the Judge insisted. “YV'hatever may he the effect of the Gaming Act,” said His Honor, “it 's not my opinion that a Court of Justice should be invoked in this kind < f thing at all.” Peterson, in reply to further questions, gaid there was no actual contract between him and YVebb. Counsel: Did yon know YVebb" 3 —No. Witness did not remember meeting Howard, who was to have started the race, and offering him money to give Sexton a flying start. ! i tin? tent before the Tace ho did not remember YVebb saying thafT iie was tbr r © *<' ’** ceive the stake for Griffen. lie had a £5 bet with YVebb. Counsel: The race was not evenly contested, was it?—No. His Honor: He gave you away, did he?-*-Yes, your Honor. Witness had paid YVebb £5 that he had deposited as a wager, but not the £5 he had won. When Webb had asked for the £lO that night, the witness said “Don’t yon think you’ve done very well to get all my hard money?” Witness knew nothing about the stake money having been given to Griffon. He did not tell a man named Snozello that if he could bring any witness who could swear to having heard him tell Burrows not to pay over the money he would give him £5. After the race he told Griffen he had ordered Burrows not to pay over the stakes, and accused him and Sexton of having “readied” the race. *

Peterson related a suspicious circumstance that had occurred the day before the race. A man staying at the same place as Griffen had come and said he could find backing for Sexton up to £IOO. YVhen the witness met Griffen to make the extra bet, however, the man never turned up, and witness heard that he had left the house where Griffen was staying and gone home. YVitness suggested that the offer to back Sexton was made to make him think that things were square. Thos. Summers, slaughterman, said he was Sexton’s trainer. Towards the finish of the race he was standing near Peterson, and Burrows and Webb were close by. He saw Peterson put his hand on Burrows’ shoulder and tell him not to pay out. The Witness supported the plaintiff’s evidence in other particulars on this point. Air. Barnard: Could you tell some distance from home that Sexton was not going to win? —I thought it dear. . His Honoram not going to decide whether the race was run fairly cr not. In any case even if the law is as you say it is,., it ,i& lamentable that the Court should be occupied with these C&SGS. Frederick Higgs, barman, who acted as a judge in the race, swore to having heard Peterson order YVebb not to pay over the stakes, , Nathaniel Pilcher, night watchman, said he saw the race, in which there was very little interest. He saw Peterson put his hand on a man’s shoulder and say “Don’t pay over. I hold you responsible.” Constable Pratt also gave evidence as to what passed between Peterson and Burrows. He saw them, talking, and the former touching the other’s shoulder, but the only word he could hear was the word stake. Webb came to the witness after the race, saying he was frightened, and as'kcd for protection. Peterson followed, and said he would “have the money back,” to which YVebb replied, “You can’t take a b beating.” Constable Dandy spoke as to having heard Peterson say to Burrows “Don’t you pay over that money.” The money was paid over a few seconds Inter, just after the men. had passed the post. At YY’ebb’s request, the witness later on promised to keep an eye on him.

Alfred Blake, laborer, wlu> was one of Sexton’s trainers, also deposed as to wha.t happened between the panties in the ease.

B. E. Redstone, law clerk, stated that after he had served YVebb with the writ, the latter had said in the course or conversation that he “had a bit of spon” in the race. Mr. Stock formally asked for a nonsuit. Even if the plaintiff could be said to have proved all his allegations, the case clearly came within the scope of the Gaming Act. The New Zealand Act was different from the English one, in that it included all money “won, lost, or staked” in a wagering transaction. All previous actions in which the plaintiffs had been sucessfcul had been m cases where the stakeholder himself was sued for having paid over the money after revocation of the transaction. In any case, the words “won, lost; or staked” might preclude action against the stakeholder. ■His Honor: If there was no stakeholder the parties could, of course, take no action.

The Judge added that the difficulty was that tne stake in this case had been paid over, and had moreover got into the hafids of the -party entitled to receive’ it. Section 69 and 70 of the Act seemed‘ against the plaintiffs. His Honor intimated that lie would hear Mr.- Burnard’s evidence on this point this, morning, and the Court was accordingly adjourned till 10 a.an. today.

ALEECED BREACH OF BANK ItUPTCY ACT. During the’ afternoon it was intimated that a telegram had been sent to the Court from a doctor at Dannevirke, to the effect that Joseph Henry N-orcross, who is charged with two offences under the Bankruptcy' Act, was still too ill to travel, and consequently could not attend the Court. Mr. Stock.accordingly asked for a post, ponement to- the next sessions. The Crown Prosecutor (Mr. Nolan) raised no’ objection. His Honor said that though it meant a six months’ postponement, there seemed to- be no other course than to adjourn the ease to the next session, and this would he ccordingly done as soon as fresh hail was arranged.