THE COURT OF APPEAL.

Dominion, Volume 5, Issue 1248, 5 October 1911, Page 3

THE COURT OF APPEAL.

MISREPRESENTATION. IOUTJDULENT OR INNOCENT? All day yesterday ilie Court of Appeal wis occupied with the* hearing of Hie ease of William Schmidt and William Ikllshaw v Willie' Greenwood. This was an appeal from tho deeki'.m of SU: .fufticc l'.d----want-; delivrt-ftl at New Plymouth on \u«u4 ":l lil'l. The bench was oecu IXL ig*Jt?l>?™\: K.C.. wiai l,im Mr J. IT Ouilliam, appeared for the ajipeHams, and"lr. Still Chapman, K.C., with h.m Mr. It. Spence, for the respondent. Imprimis—What was the Acreage? Iα tho original , action, heard at New Plymouth in June, l'-UO ,Xi. CiTcenwom , farmer, at Okau, proceeded ngnmst \\ ■ Ham Schmidt and William (Mlshaw, both farmers, of Tongaperutii, to recover tlu sum of .£259 as damages for alleged hauUu-len-t misrepresentation in connection yitli the sale of 1022 acres oi laud, in the .Uimi Survey District. The sale price was JjbUU. The alleged niisreprosentatiui was lluil Schmidt and BellsW, through then .T'Eiita had informed Greenwood that tiiero were 122 acres in gross. It mi .alleged per contra that the arra was only ■19 acres. Schmidt and Bellshaw denied making sncli a representation as to area, and they also denied that the actual acreage in grass was only 10 acre*, They admitted having informed Greenwood thai "they believed there were about 100 acres in grass," but simultaneously they- had also given him to understand that no survev had ever been made. The decision of .Air. Justice Edwards waf given in October, 1910. In the course oi iis decision his Honour said: "It is not in dispute that the defendants (Schmidt and Bells-haw) represented to tho plaintiff (Greenwood) that tho area of grassed land was about 100 acre?. ... It is, however, proper to say at once—and emphatically—that, assuming this ..statement to have been inaccurate, tihero is no justification whatever for the charge of fraud, ... I am satisfied that if the defendants had been asked for a warranty they would have refuse:! to give it, and that tho plain-tiff did not understand that they vrwe giving it. ... Upon this action, as it was framed, the nlaintilf must, thorefere, have failed, but I have yet to consider whether or not tho plaintiff can succoed in his claim for compensation as in an ncHcn for specific performance of the contract for rale under the special agreemeiiit made at tho time of the completion of the sale, and tha amendment of the statement of claim to which the ilefen(hints' counsel consented at tho trial." Ilia Ilouour then vreiit on to state that further evidence ought to be called to enable hiin to arrive at a satisfactory conclusion as to tho area of tho land under grass. Tho parties would be allowed fourteen days in which to agree to have a proper survey of the grassed land, as it existed at the time when Greenwood took possession. The re-port of a licensed surveyor would bo treated as evidence. The parties, however, did not come to any agreement, anil Greenwood was acoardingly nonsuited, but without costs. Then a Survey is Made. £■ ■Subsequently, however, Greenwood had % I the land surveyed, and then formed the ?• opinion that there had only been ii acres under grass at the time of the sale, lie ii accordingly brought' a further action (as E-j I if it were a efcrim for compsnsation in KJ an action for specific performance of the 0 agreement for sale) claiming .£271 dami\ ages. It was agreed that the Judge's J notes of evidence, in the previous action 3 should be taken in conjunction with t'h( \ evidenco of tho surveyor. i I The second action was heard, antl, or, !■ August 23, Mr. Justice Edwards gave his '\ hnding. In doing so his Honour cited i? a case which, lie said, seemed to be a very clear authority for at least this (proposition: "That , , where tho purcliasei I has been let into possession under the \j contract, and the circumstances, have sc a far changed as to make rescission inapplicable,, or an inadequate- remedy, the pur- % I chaser may have compensation in re- %' spect to misrepresentations not frau I dulent." His Honour went on Co remarl f '■ that the evidence adduced in the actior. ii 1 had put an entirely new complexion upon a ie matter, and had, satisfied him thai i Schmidt , and Bellshaw must have lenowr % cither when they made the reproscntati tions as to grass acreage, that they wert I untrue, or that they had made those re is prsicntations recklessly, and without, car jj ing whether they were true or not. j What the Judge Thought Then. J That those representations had induce< <S the conlrnct was unautsi'ionable. It nov % appeared that the actual area of grassec '■' land was only -15 acres, or 5") acres less than tho 100 acres which, in the forme: action, he had believed to bo tho area -, Tho Judge then continued: \ Tho difference between the actual i area is so great, and the defendants' refusal to act upon the suggestion '. which I made in the former trial so % unreasonable, that I can come to no e other conclusion than that" they wore f fluite well aware that tho area of i grassed land was verv much less than they had represented, and thnt they j: refused to ngrea to' a survey because they knew that the deficiency would I bo 'thereby exposed. I regret that I }! am compelled to witlidraw the favourL ( able opinion which I formed as to the il value of tho defendants' testimony in 'j Hie former action, and to give credit f, to tho plaintiff's evidence as to tho Si extent of the misreprcsentuticm. I ;j find, therefore, as fr.cts that tho refj presentation was that the area of S grassed land was 120 acres, that tho 1 actual area was 15 acre?, and that the ?] defendants know when they made tho ;i representation that the area was very ii much less than they represented. e=? Judgment was given for plaintiff fo r j S.VSI 10s., and costs .£35 -Is. Gel. I Et apres-What? ' It was from this decision that Schmid Ij and Bellshaw appealed. The appeal wa ?■■ upon the ground that, it was erroneou \ lx't'h p.- to finding of fact and determin I atinn of law.■3 Jlr. 801 l contended that his TTouon '( was not justified in departing from , hi \ previous finding, viz., that the misrs % presentation alleged was not fraudulent (■ that' the plaintiff (Greenwood) was not en 'i titled to compensation for niisrepresen >■ tntion made innocently and without i K warranty, and that, therefore, defendI ants wero entitled to judgment on i\v . I action. £■ Afr. Quilliam did not address the Court a At 5 p.m. Mr. Chapman had not con a eluded his address, and further hearini jl was adjourned till this morning. el