CASE COLLAPSES.

Auckland Star, Volume LXIII, Issue 138, 13 June 1932, Page 3

CASE COLLAPSES.

SUPREME COURT CLAIM.

IMPORTANT DEFECT IN PLEADINGS. STRONG COMMENT BY JUDG-E. A case which came before Mr. Justice Smith in the Supremo Court to-day collapsed suddenly owing to an important defect in the statement of claim. Stating that the law was most definite on the point at issue, his Honor granted defending counsel's application for a nonsuit. The judge also expressed himself strongly on the necessity of eases being properly prepared.

The claim was one in which the purchase of a dairy farm at St. Helier's was concerned. Plaintiff was Leonard Vincent Rowe, farmer, formerly of Matamata, and defendant George Henry Sturgess, of Epsom. Rowe asked for the rescission of the contract to purchase on the ground 'of misrepresentation by Sturgess regarding the value of the livestock, assets and chattels, particularly a freezing plant. He claimed the return of £300 deposit paid, £100 general damages, and indemnification in respect of a contract connected with the business. The defence was a denial of misrepresentation.

Counsel for plaintiff said last Nov-cm--I>er Eowe, who was an experienced farmer, had £300 in cash, and wanted to purchase, a small dairy farm. He was attracted by a, notice in the office of *'- iirm of estate agents, and got into communication with Sturgess. He went out with him to inspect the property in Maescy Road, St. Helier's. They saw the cows, a herd of 47 and a. bull, all of which, strange to say, were grazing on public property at Glcndowie.

His Honor: '"Strange," did you say? (Laughter.) Counsel: Well, perhaps not altogether unusual, sir. At any rate, Mr. Sturgess said there had never been any objection to the cow 3 being grazed on the land, and that they would probably be allowed to make use of it for the next 20 years. Defendant eaid he was "sitting back" and making £li a week without any trouble. He told plaintiff if ho dismissed one employee and worked himself he would ea: Ily be able to make flO a week. ITc also wrote some figures on a piece of paper showing how £12 a week could be made.

The terms of purchase were £2 deposit, £48 paid before November 17, £250 on possession, and the balance of £500 in instalments. Plaintiff paid his £300 and took the place over. He soon discovered that the facts had been misrepresented. On December 11 he wrote to defendant asking for the return of his money, but Sturgess denied that there had been any misrepresentation. Fraud Not Alleged. Counsel for the defence raised thepoint that specific fraud had not been alleged. One of the representations complained of was merely an opinion expressed by defendant, whose defence was that the misrepresentations, if any, were innocent. Counsel for plaintiff asked for leave to amend the pleadings. His Honor said he would like to give- leave to amend, but it had been laid down very definitely that proof must follow the pleadings. Hβ would have liked to have been able to allow the case to go on with the least possible expense to anybody, but ho did not think, even if plaintiff's statement of claim was proved, it would be possible to prove fraud. ''It is most distressing to see litigation brought into Court in this way with the pleadings insufficient, added his Honor. Counsel for the defendant said he must plead for a nonsuit. "Must Administer the Law." His Honor: I must rule for a nonsuit It has been said that hard cases make bad law, but in this instance I have no alternative. Although I might be perfectly prepared to allow the case to α-o on, I must administer the law ae it stands. The House of Lords has laid it down with great force that proot must follow pleadings. In this case iud-ment cannot possibly be obtained unless fraud is specifically alleged. This statement of claim says simply that the statements were false, but it does not say they were false to the knowledge of the defendant. It is a distressing matter to see a case brought thus far, and money expended, and then for an important technical point to arise-a point which the defence has a perfect right to

the nonsuit, his Honor said: "It only means that practitioners have to be absolutely careful. If they intend to allege fraud they must state it. 1 hope the solicitors responsible will see to it that plaintiff is not mulcted in any costs on account of what has happened.