SUPREME COURT

Manawatu Standard, Volume XLV, Issue 217, 18 August 1925, Page 4

SUPREME COURT

ECHO OF LAND SALE. CLAIAI AND COUNTER-CLAIM. At the Supreme Court yesterday the hearing was .commenced before His Honour Air Justice Ostler of a case wherein plaintiff was Ernest Cuthbort Barnett, medical practitioner, of Palmerston North, and defendant Herbert Henry Sutton, farmer, of Ron gonna i. Air AI. Myers, K.C., of "Wellington, with him Air B. J. Jacobs, appears for plaintiff and Mr H. E. Hart, of Alasterton, with him Air A. C. Alajor, also of Alasterton, for defendant. The statement of claim set out that, on or about Alarch 21, 1925, plaintiff and defendant entered into an agreement for tbe sale and purchase respectively of a farming property of 456 acres owned by plaintiff and situated near Halcombe. The terms of tho agreement wore that defendant should pay £3B per acre, with £2OOO cash to bo paid on or before the date of possession, namely, April 1, and tbe balance of the purchase money to bo arranged. In pursuance of the agreement,. possession of the property was delivered to defendant, who still retained possession. Defendant had failed to pay the sum of £2OOO payable under the agreement and had also failed specifically to perform the agreement, refusing to do so and claiming to have it rescinded. Plaintiff was ready specifically to perform the agreement on his part; wherefore ho claimed: (1) The sum of £2OOO payable under tho said agreement; (2) interest on tho sum of £2OOO from April 1, 1925, to the date of payment at tho rate of 6 per cent; (3) a decree thnt. defendant specifically perform the said agreement; (4) tho costs of [the action; (5) such further or other relief as tho Court might consider him entitled to. Alternately, if specific performance could not be had, plaintiff claimed: (1) The sum of £2OOO by way of general damages for breach of contract, including loss of profit; (2) the sum of £lO 10s legal expenses incurred by reason of the failure of defendant to perform the agreement; (3) tho costs of the action; (4) any further relief deemed fit.

The statement of defence admitted that an agreement had been entered into, but defendant averred that he signed it on the following untrue representations: (a) That tho property was capable of carrying 1400 ewes, 15 to 20 dairy cows, 50 other cattle and some horses; (b) that plaintiff had himself grazed and carried such stock aforesaid on the property. Tho representations, it was alleged, had been made by plaintiff or his agent in order to induce defendant to enter into tho agreement. Defendant denied that possession had been given him, but admitted that ho had not paid the sum of £2OOO referred to in the agreement, his rescission of which was first conveyed to plaintiff on or about April 7, 1925, immediately after defendant had discovered tho untruth of the representations.

By way of counter-claim, defendant repeated the allegations of misrepresentation and asserted that, dn or about Alarch 25, 1925, defendant executed in favour of plaintiff a mortgage securing payment ot the sum of £15,01X3 and. altecting the farm property concerned. Such mortgage was left with a firm of solicitors, and at tho samo time it was verbally ugreed between defendant and plaintiff that completion and settlement under tho agreement should bo postponed until April 7. Between Alarch 31 and April 7 defendant discovered that each of the said representations was untrue, and on the latter date verbally rescinded the agreement, confirming such rescission later by letter. Defendant had demanded from plaintiff the return of the said mortgage l'or £15,000, but plaintiff had refused to return it. In consequence of the aforesaid fraudulent representations, defendant had suffered damage; wherefore defendant prayed: (1) That the said agreement bo declared to have been rescinded; (2) tliat the said mortgage for £15,000 be ordered to be cancelled and returned to defendant; (3) that defendant have judgment against plaintiff for the sum of £SOO by way of damages, together with the costs of tho action. Alternatively, if rescission of tho agreement could not be had : (4) Judgment against plaintiff for the sum of £6OOO damages, and in either event: (5) such further relief deemed fit. For a further and alternative cause of action, defendant averred that Hie said representations constituted a material inducement to defendant to enter into tho said agreement; wherefore he prayed: (a) That the said agreement be declared to have been rescinded ; (6) that the said mortgage bo ordered to bo cancelled and returned to defendant; (c) that defendant have judgment against plaintiff'’for the sum of £176, being tho expenses incurred by him by reason of having entered into the agreement. And for a further and alternative cause of action, defendant said that plaintiff had committed a breach of the warranty in that the property was not and never had been capable of carrying the stock as represented and in that plaintiff never had grazed and carried such stock on the property ; by reason of which breach defendant prayed: (1) Judgment for the sum of £6OOO damages; (2) the costs of the action; (3) any further relief.

The statement of defence to the counter-claim denied that plaintiff or his agent made either of the representations complained of and denied that the contract was verbally rescinded on April 7, saying that, if defendant had sought to rescind the contract, then such rescission was not accepted by plain tiff. Plaintiff admitted a request to return the mortgage to defendant. Plaintiff further said that no representations were made to defendant by plaintiff or his agent in Order to induce defendant to enter into the contract or which did actually- so induce him, hut that, on the contrary, defendant had inspected the property and had formed his own opinion of the carrying capacity, basing his own idea of the value of the land on that estimate. Plaintiff, denying that the warranties claimed were given, denied that there had been any breach of such warranties; defendant consequently had suffered no damage. PLAINTIFF’S EVIDENCE. Plaintiff gave evidence that he had bought the property at the end of 1919 and had taken possession ,the foliowing year. He had pwd £45 per acre lor the farm. Jn the next hve years lie had improved the property a great deal—-both the buildings and the pastures. Witness, making up his mind to sell the property about the end of 1924, placed it in the hands of Kenneth McDonald, land agent, who, in March of this year, brought Sutton to him, saying that he was prepared to pay £35 per acre for the property. 'Witness had replied that ho could not dream of accepting that offer. Later, however, defendant had offered £33 per acre, which, some days after, witness had accepted. Witness denied that he had misrepresented the carrying capacity of the farm. Kenneth McDonald deposed that he had not misrepresented the carrying capacity for Sutton. . u'w. then adjourned for

luncheon. CASE FOR DEFENDANT.

After the adjournment, Air Hart, in outlining the ease for defendant, stated that ho would attempt to show that there had been misrepresentation by plaintiff and his agent throughout the transaction. Deiendant’s attention had first been drawn to the fact that tho property was for sale by a newspaper advertisement, which had stated that the carrying capacity was 1400 ewes. In the subsequent negotiations it had been stated by plaintiff and his agent that tho property hud carried tliat number and was at tho time carrying in excess of 1000. Evidence would bo brought to show that the property was not capable of carrying that number all the year round. Defendant was at present farming on the property under an arrangement without prejudice to the present litigation and was prepared to say that the land could not winter moro than 1000 ewes.

In evidence, defendant deposed that he had been farming all liis life. His attention had first been drawn to plaintiff’s property by the advertisement, as the result of which he had visited McDonald's office and had entered into the negotiations which had led up to his purchasing the farm. At no time had plaintiff or his agent told witness that 1400 slice]) had been carried only in the summer. Plaintiff had actually told him that 1400 ewes had been wintered on the property. Witness had at present,973 ewes and 20 other sheep on the property. Mr Hart was proceeding to call evidence relating to the carrying capacity of the property when Mr Myers said that it was admitted that the farm could not carry 1400 ewes all the year. If it were proved that plaintiff or his agent had made that representation, their case would necessarily fail. His Honour said that the defence, in attempting to prove misrepresentation, had the right to show the extent of that misrepresentation. James Harrison Morrison, farmer, of Halcombe. then gave evidence that his fnther had been the owner of the property before Dr. Harnett. AVitness had lived on the property for seven years and had known it for 20 years. He was at present farming on an adjoining property and was prepared to say that the farm concerned in the litigation could not carry 1200 ewes all the year round. Ho was of the opinion that Dr. Harnett had carried more stock than the farm was adapted to; tile mortality among the sheep in winter time was higher than it should have been. He did not think that the farm could now carry the stock that it had done when his father hud owned it; certainly it could not winter • more than 1000 owes.

Norman Edward Gifford, land valuer, residing at Feilding, deposed that lie had inspected the proporty uml was of the opinion that it was not suited to carrying more than two ewes to the acre, which worked out at less than 1000 for the whole farm. John Morrison, previous owner of tho property, gave ovidenco similar to that of his son.

Henry William Zweibruck, farmer, of Tokorangi. in evidence, gavo it as his opinion that the farm could carry two ewes to the acre all the year round. It was his belief that tho property was at present over-stocked. The Court then adjourned until this morning.