Wilfred Charles DOWDEN [8189]

  General Notes:

1880 SA Birth DOWDEN Wilfred Charles Charles William DOWDEN Mary Ann BAKER Angaston 239/95
1955 SA Death 828/3781 DOWDEN Wilfred Charles undefined Pinnaroo


The Times and Northern Advertiser, Peterborough, South Australia (SA : 1919 - 1950) View title info Fri 15 Jun 1923
Land Transaction.
£300 COMPENSATION.
DOW DEN v. McKINNON.
At the Peterborough Local Court on Friday a case which created much interest was heard by the S.M. (W. J. Hinde, Esq.), and Messrs. M. Ross Both and S. D. Jones, J's.P. Messrs, G, F. Alderman and G. Lyqall Rutter appeared for the plaintiff. Wilfred Charles Dowdej), while Messrs. Frank Kelly and F. P. Keats appeared for the defendant, Hugh McKinnon. Counsel for the plaintiff explained that their claim arose out of an agreement made between ihe parties on June 5, 1922, whereby the defendant agreed to pay the plaintiff £300 to release him from his contract of April 28 for the sale of plaintiff's farm in Hd. Coglin to defendant for £3,042. Plaintiff at first refused to accept the cancellation of sale, but on being pressed, on account of ill health of defendant, stated that be would consider the offer if put into ¦writing, provided he could find another buyer for the property. An agreement was then drawn up and signed by both parties, giving plaintiff until June 9 to accept offer. On that date the defendant again approached the plaintiff, but he stiffly refused the offer, not having secured another buyer. The defendant then suggested an extension to June 15 which was noted on the agreement, and initialled by both parties. Mr. McKinnon throughout was most anxious and pressing on plaintiff to accept his offer. On June 12 Mr. Dowden spoke to Mr. Lane re the property and on the 13th again interviewed him. The same evening he waited upon the defendant and informed him that he had a prospective buyer, and would accept his offer. The contract was signed and an agreement made between the parties cancelling the sale contract of April 28 subject to the consent of the Commissioner of Crown Lands. The sale had been completed and defendant now refused to pay the plaintiff the £300 compensation for his loss and trouble. Wilfred Charles Dowden, retired farmer, Semaphore, sworn, stated: "I am the registered proprietor of certain sections and leases in Hd. Coglin and the real and equitable owner of Section 159M which is registered in the name of my father, Charles Wiliiaw Dowden. I have occupied the whole for many years, and was able to deal with same as I thought fit. On April 28 I signed a contract of sale, selling the whole of the property to Hugh McKinnon for .£3,642 at the following terms-£42 deposit, £1,000 cash on possession and balance on mortgage at 5 per cent, from June l; possession on consent of Commissioner to transfer. As McKinnon was desirous of moving into homestead, I sold all my live and dead stock and moved in to Peterborough on June 3 to await consent. Defendant did not enter into possession, and on June 5 complained of ill-health, asking me to cancel the contract. I explained to liim that that could not be done, as I had sold my goods and had no wish then to return to the farm. Defendant offered £300, and after being pressed. I told him that if he put the offer in writing and gave me time to find another buyer I might help him out. The agreement produced was drawn up and signed and given to Mr. Taplin with the instructions that if the sale was cancelled the document was to be given to me, and, if not, it was to be given to defendant. Every time defendant saw me he asked me if I would accept the offer and I said no. On June 9 he saw me and said that the time was up and pressed me to accept the offer, but I refused and said I had been unable to do anything with the property, but if I could get another buyer I would see him. He then offered to extend the time and same was noted on the agreement. As a result of a visit to Mr. Lane on June 13 I interviewed defendant in the evening, and told him that I had a prospective buyer, but was losing £42 on the deal. He said he supposed I wanted him to make that good, but he could not; he would, however, pay me £30 towards it, and I replied that I was not asking him for any more. We walked along the street and met Mrs. Dowden, and in conversation with her the defendant said he thought I was hard wanting him to pay me £342. I said "I did not ask you to pay anything; you offered to pay me £300 and now offer £30." Defendant turned to Mrs. Dowden and said "Don't you think he ought to accept it." and again said he felt very bad. After Mrs. Dowden left defendant said ''What are you going to do about it?," I said, "Well. I have your offer in writing to pay me £300 and you will have to pay me that by law, but how about the other £30?" Defendant replied "I will give you my word of honor for that. You can go to Bagot, Shakes & Lewis and collect the £300 as soon as you cancel the contract, and then come to my house and I will give you the other £30." I said, "Very good; I will accept your offer in writing and cancel the sale and trust to your honesty to give me the other £30." Defendant said, "Thank God for that; give us your hand." He went on to complain about Bagots. I said "I will go down to Mr. Taplin to cancel contract for sale, and you will be sent for when ready." On June 14 I saw Lang and entered into contract for sale of properties tor £3,000, £1,000 down and balance at 5 per cent, from November 21. On 15th I signed the document produced, releasing defendant from the sale, subject to consent of the Commissioner, not present when McKinnon signed. Mr. Taplin handed me the document of June 5 as agreed. Subsequently defendant stopped me in the street and asked "What about that paper?" I said "What paper?'" He said "The paper where I promised to give you £300." I said "I have it at home," and he said "I want a copy of it." I said "I suppose you can have a copy of it if you want it." He said "I do want it." I said "What for?" and he said "to give it to Murd. Mc Kinnon (his cousin): he is going to see about it for me." I said "I don't understand; as soon as you pay me what you offered you can have the original." He said "I want the copy; go and get it at once." I said "I cannot go up at once, but will bring it after dinner." He said "Bring it to Elder's office; Murd, will see about it for me; who put in that paper to cancel that I would still be liable if property was not transferred?" I said "That was in when it was signed." After getting paper, defendant again asked me to take it to Elder's. I said. "No; Mr. Taplin drew it out, and I will get him to copy it." However, Mr. Taplin was not home, and I took it to Elder's, who gave me a copy of it. Subsequently. Mr. Battye and Murd. McKinnon waited on me on August 31.
Here Mr. Kelly objected to any conversation with Murd. McKinnon being pul in as evidence, as ihey received no intimation of this, and were not prepared to defend it. , In reply to S.M. the plaintiff' stated that defendant had informed him that he would "leave it all in Murd's hands." Cross examined by Mr. Kelly plaintiff said: "I saw Mr. Vaughan alter conversation with defendant on June 13, but did not instruct him in any way, and Mr. Vaughan did not ask me if there was any money passing and I did not tell him there was or was not any. Mr. Taplin was fixing the business, and I did not take much notice of what was said. Later on father and I signed agreement. First made claim on defendant in writing for money in November, Instructed Mr. Keats to write lo him. Matter had been in solicitor's hands ever since, and there had been no delay as far as I am concerned. Had no contract with anyone until June 14. I did not consider £300 sufficient if I had to pay two commissions, as I then understood I would have to Amount might have covered out of pocket expenses, but not loss of time, etc. Lost £42 and 1 per cent, interest. besides interest from June 1 to November 21. Did not claim the extra £30 as that was only a verbal offer. Was not anxious to go back to farm after I had sold goods and moved. Considered that 'if transferd]id not go through. McKinnon would have been able to snap his fingers at me. Expected the £300 and the extra £30 offered. Considered McKinnon free when Bagot's handed him back his deposit, and considered everything finishe. on 13th as far as McKinnon was concerned. Did not tell Lang I was not getting any money out of the old chap. Lang did suggest that defendant should leave his deposit in for him. I secured the buyer, Lang, and Bagot's completed the sale. Mr. Taplin told me he had returned the deposit. Lang had argued that as he was paying more cash down. I should take £3,000 and less interest.'' Mr. Kelly objected to Mr. Alderman asking for statement re Mr. Vaughan and matter let drop. Plaintiff, in reply to Mr. Kelly, continued: "I was debited with two commissions, but afterwards one was debited to me." Mrs. Dowden, wife of plaintiff corroborated plaintiff's evidence as to conversation with defendant, which closed the plaintiff's case.
For the defence counsel pointed out that real issues were:-(l) The signed agreement and subsequent agreement, if any, on June 13: (2) Whether any agreement on June 13, which was not shown by evidence, merely that there was no buyer until 14th and plaintiff had stated he would not accept until he had a buyer. There was nothing about accepting offer when Mrs. Dowden was there. There was no evidence to show that there had been any enquiry for cheque. Plaintiff had shown all through that he would not accent when the agreement was drawn up; plaintiff was very prudent, and would not release defendant until transfer was consented to; it was inconsistent; there was no evidence of any claim being made; as a matter of fact, the offer had never been accepted.
Here a wordy battle took place between the Bench and counsel.
Hugh McKinnon, Terowie, laborer, defendant, sworn, said: "I entered into a contract with, plaintiff to buy his land. Subsequently I made an offer to him to cancel contract, but he refused. On account of ill-health I offered him £300 to cancel same and free me from Bagot's. He would not accept and had never done so. I extended time from 9th to 15tth June. I remember conversing with Mr. and Mrs. Dowden on the road, when I asked him to cancel the place and take it back and he shook his head. On night of 13th, plaintiff came to my place and said he would not accept £300; he wanted another £40 because Mr. Taplin was charging him two commissions. I said I could, not see there would be. Walking along the street, plaintiff said one of Bagot's head men would be up that night, but he did not know whether he would do it or not; it all depended. He said 'Mr. Lang was goings to pay down £600. more cash, than me. Coming to the crossing plaintiff said the business was nearly fixed up, but he had not made up his mind properly which would be best; £300. will not be fars when a man goes into anything. He said he thought by rights I ought to make the amount up to £70 to enable him to square himself, but he would take £40.
By Mr. Kelly: Plaintiff had never said he would accept my offer of £300 or that he would trust to my honesty for the £30. When he was leaving he said "I don't know what he will do, I will let you know in the morning," but he had never done so. Both Dowdens "had signed agreement, before I did so, but neither of them was present when I signed. Later plaintiff came to me in street and asked for the £300 and I said "I want a copy of the agreement." He said "You give me the. £300 and I will give you back the document.''I again asked for the copy of agreement to send to Murd. McKinnon, but did not get it till later. I was too till to get it. That was the first time plaintiff had asked for the £300 before transfer had gone through.
In reply to Mr. Alderman defendant said: "I don't remember when we met after 13th. There was never any agreement arrived at between us after June 13 in conversation. Plaintiff had not accepted offer on June 15. I did not know I was still bound until I received word from Murd. McKinnon some time later on. .There never was any agreement to cancel lease between us. I cannot remember any agreement to cancel contract for purchase.
By Bench: . "The document was partly read over to me. Remember the document down to word 'obligations.' Would no.t have signed the document had I known what was in it. I wanted to pay, £300 and get right out of it."
Continuing: Defendant "would not reply to the question did he know he was now right out of the transaction, and was not prepared to pay the £300. I never denied owing the £300 that day. I did not send Murd. McKinnon to plaintiff. I told Murd. to "try and settle matter, and told him he could see agreement. I never knew Murd. had offered plaintiff £150. I never told him to offer £100. I went to.Bagot's office because one of their boys told me I was wanted. Mr. McDonald produced document and. said "Sign this" and I signed it. I think I read it myself. I did not think about getting right out of the deal then. I knew that the document related to. Dowden's transaction. I offered the £300 to wipe me clear of the transaction on June 15."
By Bench: "Why did you not offer the £300 when you signed?" No answer. "When did you know you were not clear?" "Next morning, ivhile talking it ever with my wife, I thought I might not be free."
Continuing cross-examination, defendant replied: "On afternoon of 15th I did not think I was out, as plaintiff had not accepted offer. I was not too anxious to get out, only that I was ill and did not want to leave any debts if anything happened. I was anxious to pay the £300 if plaintiff came up to what I asked. Up to June 13 I approached Dowden probably twice. June 13 was the first time Dowden came to me. I did not increase offer, as he did not accept. Dowden told me he had a prospective buyer."
John William Lang gave evidence of purchase of land and detailed conversations, etc., in connection there with Laurence Vaughan, licensed land broker, of Bagot, .Shakes & Lewis Ltd., gave evidence of having drawn up agreement to clear McKinnon and enable contract to be made with Lang. He made enquiries re consideration and was informed there was none, the considerating being ill health. In cross-exaniination witness said it might cause trouble if Commissioner knew there was a consideration of £300, but it was witness' business to ascertain the facts, and he would consider it grossly improper not to do so or to mis-state the case, and he did everything in his power to find out full particulars.
The case lasted all day, and owing to lateness of hour, counsel agreed not to address Bench. At 8.5 p.m. the Bench resumed, the S.M. announcing that they had arrived at a majority verdict for the defendant, his colleagues believing the defendant that his offer of £300 was made to clear him of the transaction, and that plaintiff had not accepted that offer. Costs would be with the verdict.


Cemetery: Murray Bridge Adelaide Road DOWDEN Wilfred Charles undefined 1955; Husband of Thelma, father of Mavis, Carol, Lorraine, Nita, May & Ross

DOWDEN,Wilfred Charles
Surname: DOWDEN
Given Names: Wilfred Charles
Cemetery" Murray Bridge Cemetery
Section: Eleventh Drive
Plot/Grave/Niche: 346
Last Residence: TAILEM BEND
Age at Death: 75 years
Date of Interment: 20/06/1955
Minister Officiating: Reverend R S Rayner
Grave Depth: 8 feet
Right of Interment Number: 1624
Burial/Order Number: 2212
http://www.murraybridge.sa.gov.au/page.aspx?u=485&c=6345

Wilfred married Everalda Harriet May McKENZIE [4279] [MRIN: 2949], daughter of John McKENZIE [4276] and Everelda Rebekah Jane GENTLE [4277], on 30 Apr 1912 in Methodist Church, Yacka, South Australia. (Everalda Harriet May McKENZIE [4279] was born on 21 Dec 1893 in Jamestown, South Australia, died on 23 Jul 1924 in Woodville, Adelaide, South Australia and was buried on 25 Jan 1924 in Cheltenham Cemetery, South Australia.)

Wilfred next married Thelma Emma WALLIS [8192] [MRIN: 2951], daughter of William Charles WALLIS [8193] and Ethel Eliza Maria RYAN [8194], on 15 Dec 1925 in Methodist Church, Exeter, Adelaide. (Thelma Emma WALLIS [8192] was born on 10 Nov 1904 in Yatala, Port Adelaide, South Australia and died on 20 Feb 1989 in South Australia.)