ALLEGED BREACH OF AGREEMENT

Gisborne Times, Volume XXIX, Issue 3154, 25 February 1911, Page 2

ALLEGED BREACH OF AGREEMENT

KGOD v. BIRKETT. A RESERVED JUDGMENT GIVEN

In the Magistrate’s Court yesterday Mr. W. A. Barton. S.M., gave the. following judgment in-the case of Andrew Hood (Mr. Barnard) v. William Birkett (Mr. Bright). ’The claim was for £ll 10s, alleged to be due to plaintiff. His Worship’s judgment was as follows: — * “The facts of the case are as follows: The defendant agreed to purchase from the plaintiff a- cottage at the price of £SOO to he paid for in the following manner, viz. £2O cash, and the balance by way of rent at the rate of 15s per week, which was to he credited to defendant- in reduction of the purchase money, and interest at the- rate of 7 per cent, per annum. Defendant has the option of paying £2O or more off the purchase money every 12 months. Counsel for the defendant contends that the Court has no jurisdiction to adjudicate in this case, on the ground that it is in effect an action for specific- performance of a contract, and as this Court cannot decree specific performance, it has no jurisdiction ,aaul that therefore plaintiff’s only remedy is bv action in the Supreme Court, for specific performance of the agreement. In this 1 am unable to agree as it is clear from the evidence that the defendant entered into a contract to pay plaintiff 15s a week rent for the premises, which was to go in reduction of the purchase money aixl interest. It has been suggested l)v the cross-examination of plaintiff that lie is guilty ox misrepresentation to . the defendant. in- regard to the drainage of the land upon which the house stands, lmt with'that this Court is not concerned. If it is a fact that plaintiff is guilty of misrepresentation, then defendant lias his remedy against him, but I am of opinion that so long as the contract remains in force, and defendant retains possession of the premises, he will be liable to pay the plaintiff the amount- agreed upon, viz., 15s per week, and this Court has jurisdiction to entertain an action for recovery. There being no dispute as to the amount, I shall enter judgment for the amount claimed, with costs £2 10s.” Mr. Bright asked and was granted leave to appeal.