REMOVAL OF SHED

New Zealand Herald, Volume LXXVI, Issue 23405, 22 July 1939, Page 18

REMOVAL OF SHED

PROPERTY EXCHANGED QUESTION OF OWNERSHIP ./ " JUDGMENT FOR PLAINTIFF [from our own correspondent] HAMILTON. Friday Reserved judgment in a civil case in which Edward Earle Vaile, of Rotonia (Mr. Davys), claimed against James Cochrane Cleland, of Rotorua (Mr. Fleming), and A. McLaren, of Hamilton (Mr. King), for the removal of a shed on a property acquired by plaintiff, was given to-day by Mr. S. L. Paterson, S.jNI. "Plaintiff and the defendant Cleland entered into an agreement for the exchange of properties on March 31, 1936;" said Mr. Paterson. "On part oi Cleland's property was an iron shed let to the defendant McLaren. On August 5, 1937, the shod was removed by McLaren. Plaintiff brought the action, claiming the shed from McLaren on the ground that it was affixed to the soil and alternatively claiming against Cleland that the shed was not a fixturo and claiming damages for a breach of implied warrants of title. "At the hearing, I determined that on tho evidence the shed was not affixed to the soil and was the property of McLaren," continued Mr. Paterson. "I reserved tho question of plaintiff's rights against the defendant Cleland, arul invited counsel to submit written argument. However, tho argument submitted was not very helpful.

"Both plaintiff and Cleland believed the shed was a fixture and passed with the land. There was, therefore, a mutual mistake of fact. The true position was that, inasmuch as Cleland was selling the shed as part .of the land, tho fact that it was not affixed to the land, but was tlio property of tho third party, was a defect in the title of the land.

"The plaintiff has undoubtedly suffered a loss by tho mistake, and I think that, although no money was passed, plaintiff, having given value should have his remedy." Mr. Paterson said plaintiff valued the shed at £6O, but he thought this was too high. McLaren, who owned it, valued tho shed at £3l 10s, and had said that when he and his partner dissolved partnership in 1931, the shed was valued at £45. The true value at the time of the contract would be £3B 10s.

Judgment for £3B 10s was entered for plaintiff against ■ the defendant, Cleland.