SUPREME COURT

Manawatu Standard, Volume L, Issue 144, 17 May 1930, Page 6

SUPREME COURT

SALE OF LAND. l BREACH OF CONTRACT CLAIMED. An. action for specific performance of a contract for the purchase of land was heard before His Honour the Chief Justice, Sir Michael Myers, in the Supremo Court at Palmerston North yesterday. The plaintiffs wero Arnold Buddie Shannon, farmer, of AVaituna West, and George Robert Mcßeth, farmer, of Ivimbolton, executors of the will of Trevor Shannon, late of Waituna West, and the defendant was Daniel O’Driscoll, farmer, of Rongotea. Messrs Cooper and Graham represented plaintiffs and Messrs Ongley and C'uilinane defendant. STATEMENT OF CLAIM. It was set out in the statement of claim that the plaintiffs were executors of the will of Trevor Shannon, late of Waituna West, and as such wero the registered proprietors of 640 acres of land. It was agreed to 6ell the land at £2O per acre, and on the signing of the agreement defendant paid to Abraham and Williams, Ltd., as agents for the vendors, a £2OO deposit and contracted to pay £IBOO when possession of the land was given on March 31, 1930. It was alleged that the defendant, through his solicitors, repudiated the agreement, and on this ground plaintiffs claimed that defendant should be ordered by the Court to perform the agreement and accept a transfer and possession of the land. Plaintiffs also claimed £SOO damages for breach of contract. Alternatively, plaintiffs claimed £2500 as damages for breach of contract and the costs of the present action. STATEMENT OF DEFENCE.

Defendant denied that there had been any concluded agreement between tlie parties. The only agreement it any, was made subject to a condition mat a formal contract should be prepared and signed by the parties which, it was contended, had not been done. Defendant admitted having paid £2OO to Abraham and Williams, Ltd., but denied the allegations of contract maclo by plaiutms. If there was any agreement it had been repudiated on March 11, stated defendant.

For a further defence defendant said that it any agreement were made, which was not admitted, defendant was induced to sign and did sign the alleged ugrtement on the faith of certain material representations and statements made to defendant by plaintiffs and their agents between February 1 and February 21, 1930. The representations and statements included the following:—That the land in its then condition was capable of carrying two and a half breeuing ewes to uie ucre throughout the whole year and fattening their lambs; that there was enough sound totara timber on the land to provide sufficient material for all the fences tfiat defendant might find it necessary to erect if he purchased the land. Defendant said he ascertained on March 10 that the whole of these representations were incorrect and were misleading in the following material respects: —The land was incapable of carrying two and a half breeding ewes and there was no sound totara timber. On the representations defendant was induced to pay £2OO. However, on March 11, he orally repudiated the agreement and asked for the return of his deposit. Defendant, in a counter-claim, contended that the contract should be rescinded, that the £2OO should be repaid, and also the costs of the action should be paid. The Court was occupied for a considerable time in hearing legal argument by counsel. Defendant, in the box, stated that he had been in New Zealand for 15 years, being in the Police Force for the first five. He then took up farming and was dairying until tfie last four years, when he took up sheep farming. So far he had had leasehold property. He instructed Abraham and Williams to find him a farm capable of running 1000 ewes and fattening their lambs, and fixed the price at £lO per ewe. After being several properties he was 6hown Shannon’s. He had been ill and did not inspect the whole farm, but was informed that there was plenty of totara for posts in the back portion. Defendant offered £2l an acre with £2OOO cash. This was not accepted, but after negotiations an offer of £2l and payment of the agents’ commission was accepted. Plaintiffs gave no indication that the property would not carry 2J ewes to the acre, but merely said that as trustees they would give no guarantee. An agreement was signed in Abraham and Williams’s office on February 21. On March 10, he went to inspect the ewes on the property with a view to purchase. He asked the manager how many ewes he would have run on the property had it not been sold. The reply was eleven or twelve hundred at the most, and he was doubtful whether fat lambs would come off. The total sheep that could be carried on the property of 1360 acres was stated by the manager to be 1800 breeding ewes and 400 dry sheep. He later indicated that he did not intend to go on with his purchase as the property was in his opinion not capable of carrying 2i ewes. Replying to Mr Cooper, witness said that in his opinion 2$ sheep country was worth £25 an acre. He would not think it difficult for a person who had been farming the property and the adjoining block, which had formerly been one farm, to know the carrying capacity of each section. Witness denied that one of the Shannons had told him that with top-dressing and supplementary feeding the country would carry 2J ewes to the acre. He denied that Shannon had said he had not been on the property for 14 or 15 years and did not know what totara there was on the place. Nor had witness been told that the manager (Berryman) would give him any information ho desired. However, he had seen the manager later a.nd had been told that there was little totara on the farm. When witness inspected the property on the 10th he did not make any claim of misrepresentation or indicate that he intended to repudiate his agreement. Witness added that he had no reason to doubt the integrity of Abraham and Williams, Ltd., through which firm he had always transacted his business. At this stage the court adjourned for luncheon. After the case had been resumed Mr Cooper produced the document show-

ing defendant’s signature, remarking that there were no signs of uncertainty about the signature. Thomas John Rodgers, land agent, said he had been in the land agency business for 26 years. He knew the 640 acres of land in question. He had inspected it for the purpose of giving evidence in the present action, but he had twice beforo seen tho property. At the present time in witness’s opinion, the place was unsuitable for breeding ewes, owing to the inferior grasses on it. There were English grasses in a couple of paddocks. Undoubtedly, with the feed on it tlie farm might carry breeding ewes. It certainly would not fatten lambs. If the place was fed down well with cattle and top-dressed it might then carry two ewes and fatten 70 or 80 per cent of the lambs, but it would not carry 2i ewes. He had seen some totara on the place but no't a great deal. Californian thistle was very thick on the place, which could be made into cow country, but it was not suited to dairying at the present time.

Kenneth McDonald, land agent, said he had been a land valuer for 15 years and had been connected with farming all his life. He had inspected the property concerned on Sunday last. He had divided tho farm into three parts. One hundred acres at the back were inclined to be rough and inferior, and would carry one dry sheep. There were 240 acres he estimated that would carry two breeding ewes, and he would consider they would fatten 50 per cent of the lambs off their mothers. There wero 300 acres that might carry two and aquarter dry sheep. The place would carry 1255 sheep. In addition to this the farm would require at least 100 head of cattle. That was what he would estimate tho carrying capacity of the farm in its present condition. He could not say that there was no totara on the place. To Mr Cooper witness stated that he had been on the farm for six hours.

At this stage, counsel announcing that no further witnesses were to bo called, His Honour said that defendant had given his evidence with great candour and had not attempted to colour it. He did not think misrepresentation had been proved, but there was still the question of the validity of the agreement. Arnold Buddie Shannon, giving evidence, denied that he had represented the place to carry 2i ewes. In bis opinion £25 an acre tor 2i owe country was low value —£35 wo lid be nearer the mark. He hud sa d that with proper treatment the property would carry 2i ewes. He denied ever alleging that the land was cow country. In regard to tho question of tlie amount of totara on the property he had referred defendant to the manager. Sidney Robert Thompson, manager of Abraham and Williams’s branch at Palmerston North, said it had been pointed out to defendant time and time again that the alleged representation that the property was 2i ewe country had not been made. Corroborative evidence was given bv William James Shannon, cousin of one of the plaintiffs, in support of the latter’s contention that with proper treatment the property could be made to carry two and a half sheep. Hector Vivien John Rees, land salesman, outlined the conversations that took place between the parties in regard to tho price and carrying capacity of the place. Mr Ongley submitted that while the evidence of defendant may not have proved misrepresentation the evidence of plaintiffs had done so. They now admitted that with improvements the place could be made to carry 2£ owes. His Honour ruled that defendant had offered £23 an acre if tlie farm would be guaranteed to carry 2i ewes, and the fact that £2l tvqs accepted by plaintiffs was an indication that tliey realised the land would not carry that number of sheep. With reference to the allegation of misrepresentation he had come to a very clear opinion of the facts, and he came to that opinion at the end of tho case made out by defendant. He was quite satisfied that false representation had not been proved. Mr O’Driscoll, he thought, had really put an end to his own case by his answers under cross-examination. The most that could be said was that an expression of opinion had been made on tlie carrying capacity in tlie event of certain improvements. However, there were still other considerations, the principal being as to whether there was an enforceable contract. Ho proposed to reserve his decision on that question of law. He suggested to counsel that lie would hear their argument at a later date in Wellington. This was agreed to.