PROPERTY EXCHANGE

New Zealand Herald, Volume LXIX, Issue 21296, 24 September 1932, Page 15

PROPERTY EXCHANGE

JUDGMENT FOR DEFENDANT

COMMENT BY THE JUDGE •• SOME HARD SWEARING" "The conflict between the parties on the facts' Was most remarkable, and I am satisfied that'there has been what is called some very hard swearing in this case," 83 id Mr. Justice Smith in the Supreme Court yesterday in giving judgment for the defendant in a claim for the enforcement of an agreement to transfer property. The claim was made by Bold Jlarchant, farmer, of Onewhero, against James Howard Arnett, of Remuera, traveller. His Honor said that one of the chief misrepresentations alleged by the defendant Arnett was that he had been assured that Marchant's farm would carry 40 milking cows and 100 sheep. On this His Honor said ho preferred to accept the evidence of four witnesses for the defence, one of whom, Rowley, particularly impressed him by his honesty of demeanour in the box. On the other side there was the evidence of the land agent, Jones-Prosser, but it was very curious that although Jones-Prosser remembered a great number of things in this case he did not remember whether or not he returned to tho hall where the assurance was alleged to have been given. It seemed to His Honor that Jones-Prosser did not remember, because something very important happened there. Defendant was entitled to regard this representation about the carrying capacity of the farm, not merely as an opinion, but as a statement of fact. That it was false was perfectly clear, and it was in fact a fraudulent representation that was material. There were other grounds on which he was unable to accept the evidence for the plaintiff. His Honor came to the conclusion that the transfer agreement was signed, as stated by the defendant, subject to the condition of a further inspection, and that prevented it from being a valid and binding agreement. Even if it were binding he would hold that there had been a fraudulent representation which would have entitled the defendant to cancellation. The agreement was made subject to a further inspection which, when made, resulted in repudiation of it; and he made a declaration accordingly. His Honor allowed defendant costs, vntnesses' expenses and * disbursements, and certified for £ls 15s for each of two extra days. -