A BARGAIN IN FREAKS.

Dominion, Volume 2, Issue 315, 30 September 1908, Page 2

A BARGAIN IN FREAKS.

TWO CALCES, A FOAL, AND A TENT. JUDGMENT FOR DEFENDANT.Tile curtain was rung down on a peculiar caso wlienj Dr. -M'Arthur, S.M., delivered his decision yesterday in the action, Alexander <F. Davies (Mr; Wilford) v. Phillip J. llurtagh (Mr. Jiorison). . The-state-■ iiiem of claim presented at the original hearing set forth that on February 14 plaintiff purchased from defendant a freak foal mid two calves, a tent and pole, for £200. The. sum of £30 was handed-over the same day in part payment, the. balance .of 1 £170 being, secured by a promissory note payable on April 10, 190 S. It was alleged .that defendant represented to plaintiff that the foal and calves were a. show' worth from' £70 to £112 a week, and that ho had taken such sums, by exhibiting the freaks in Auckland, Christchurch, and' Wellington. Those, representations,, which it was alleged were known to defendant to be false, induced plaintiff to make the purchase. Plaintiff therefore claimed to! recover the sum of £30/ or, in the alternative), a similar amount ■as damages for misrepresentation. Tho first witnbss called for plaintiff, one Derek Mahnerslpy, said defendant told him and plaintiff that the show had taken £97 in one day in Manners Street. In crossexamination, hp said he knew Muitagh's stories were improbable, and only laughed at them. He told Davies the stories, wero absolutely absurd. Plaintiff gave evidence to the effect that' defendant told him that ho ■ took £97 in orie night at Manners Street, and also that he had taken £70 a day for 14 days in Auckland and about £100 in Christchurch ls.st November. He had made ;a proposal to i defendant to . lease this show at £5 a week, but defendant did not. accept the proposal. In-re-examination, plaintiff said he-bought on the.faith of defendant's; statements, ■ which he,believed. Mr. Dix, solicitor, testified that defendant said he was : making large sums-.of money, and thai plaintiff said he djd not want the price known. Neither of them, ho said, wanted him to .know the price. The Court considered the material; evidence was that of plaintiff and Mannersley, a.jid the latter told plaintiff that defendant's storie'S;.were absurd. ..His. Worship said that! in'order that a misrepresentation .might avkil as a ground of relief it was essential t-KatJ it should be material in 'its nature and shbuld be the determining'ground of the transaction. There must be the assertion of a fact on which the person entering into the I transaction relied, and in the absence of which it Was reasonablo to infer that he would hot have entered into it at all, or at jiot on the same terms. Both facts must concur; there'must be false and .matoriaf representations, and the party seeking relief should have acted upon the faith and credit ,bf such representations'. To say thatstatements' were'- false was one - thing; to say thaVa man was deceived by them' to enter /into a transaction was another thing." Iffa'ihan to whom a 'representation had been/ ma.de knew at the time or-dis-covered -fefpre- entering; !into a transaction that'the was false, he could not .avail/himself of the fact that there had been misrepresentation or''say. that he'had acted on the fajth of representation. The allegation, of misrepresentation might be effectual!/met by proof that, the-party complaining was well aware and cognisant of the real facts 'of the case. The 'law, required men ir; their -dealings with each "other'to exorcise proper vigilance and apply their attention ,to those particulars which were within' the reach' of' their observation, and not to close their eyes to the means of information which were accessible to them. A court/would not assist a man whose 'condition iwas attributable only to that want of. due diligence which might be fairly expected frojn a reasonablo person. His Worship quoted authorities at some length, "aiid remarked that, in his opinion, there was' some tall!t-alk about the-great receipts from this "freak" business, but he did not believe that the'plaintiff , relied on these statements. .. Ha had the_ opportunity' before him daily, of ascertaining'the truth or.otherwise.of the<reprosentations "made, to him; and,, moreover, his chief, witness, - a .servant ;of his'own and of defendant, told him that the. .statements', were absurd: ;He could hot; therefore, have, .been 'deceived by' them, and had only himself to thank for the position in'which he, .found-himself, due entirely to his o\yn' negligence. Judgment w'ould be. for defendant,' with costs £4 Bs. * '" ■ " ;-•/