AN APPEAL ALLOWED

Evening Post, Volume CIX, Issue 131, 6 June 1925, Page 9

AN APPEAL ALLOWED

i DISPUTE OVER A FARM

i.CLAIM FOR. RESCISSION OF A / CONTRACT.. , 'Tho Court of Appeal, consisting of iheir Honours the Chief Justice, Sir 'Robert Stout, Mr. Justico Reed, Mr. •Justice: Adams, and Mr. Justice Ostler, ■io-day gave judgment in the case in -which Thomas. Vernon Wilkinson and .Frederick John Alexander appealed against a decision of Mr. Justice Sim an favour of Robert Hugh Bissett. The facts were that the respondent sued appellants for £316 19s 3d for iniercst. due by the appellants at the rate of £5 10s per cent, on the purchase-, money of £11,260 10s. The respondent sold "to., the appellants a sheep farm. The 'agreement was made on the 7th May, 1919, and Die defendant was let into possession in May, but the land was not conveyed to tho appellants and the purchase money was not to be payable until Ist-May," "1924. : There was* due lor interest, "as on Ist May, 1924, the sum of £516 IDs 3d, being one-half year's interest. The defence raised for tlio non-payment of this interest was. thiit .the. appellants had rescinded the .contract, and that consequently- thcrtv >vsis no sum due for interest. A coun-ter-elaiin lodged by the appellants was. v claim for rescission of. the" contract, for repayment of purchase money paid with interest, accounts, and- inquiries, and such directions as may be required. Tor the purpose of complete restitutio' ad integrum. Alternatively, there was another claim for £5000 for'damages for fraudulent misrepresentation, . and another claim, for damages for breach of warranty. "'■" ~ . .-"'. ...

"The real question in dispute," said his Honour the Chief Justice, "has turned .out to be whether.the.appellants, are entitled to rescission of the contract They do not rely upon the breach of warranty, but they ask for rescission or the contract, though their claim for damages for misrepresentation has not been formally withdrawn! Their claim 3s based on the allegation that the appellants were induced to enter into the contract and paid the money, etc., because of the representations made by the respondent that the farm that'was being . sold was capable of carrying 2000 sheep, and the allegation is that the farm was not capable'of. carrying more, than 1500 sheep. To obtain the carrying capacity of a.sheep farm is one of the commonest, modes of ascertaining its value. This ~ appears-.clear from the evidence." . Having reviewed the facts at length, hia Honour said -.— ' .".'". "f am of opinion that the judgment of the Court below should be reversed, that the contract should be rescinded. It should be left to the Court below to determine the conditions as to payment of .interest, etc., according to the. time the lind lias been occupied by the appellants. I may add that,' hi my opinion, it has not .been proved that the land was in .i worse state when it was given up iv 1924 than it was when taken, over in 1919. The allegation is made that Ilia fences were in bad order, and there were rabbits on\ the. place..". As far as the evidence goes, even the respondent's one Witness says that there were not many rabbits seen about the place, and oiib witness.: says that .-to. ."repair the fences would mean an expenditure of ohlv 3 few .pounds. There is nothing in" the evidence, to show that the" place has been: so .altered ,as to make, restitution improper.. Mr. King said thafhe saw a lew'rabbits about the place, and that the- gorse fences were badly kept and -badly neglected. Mr. Richards said--If the neighbouring farmers say that the place- to-day, is in better condition than iix 1919 I am not in a position'to contradict them. Neighbouring farmers who see the place frequently may do better able to form an opinion of ft than a person who comes from 40 miles away.' - - - '.-■"".-'■- # Tho appeal should "bo allowed, and action, and on tho .counterclaim, and the rescission granted, it being ■ remitted to _fche Supreme Court to do what is just and equitable between the parties a ? expressed iv Lord Blackburn's dcciEion. ■ lhe.appellants are entitled to J--«ta on the highest-scale, and as from ■i distance,, and -to: costs in the Court "IT ™ m*lM allowed by t! lc Stt . I'l-cmo Court." ' - Th^r -Honours Mr. Justice Adams ''"' 'Xh: .Justice Ostler concurred with iln- decision of his' Honour . the Chief •'"=»' t-:t-'."' His Honour Mr. Justice ■iii'fMi dissented . . . -uh.himMr.Hnggiti-aS6^^;' Sed^^^nL^- I^--