COMPENSATION CLAIM

New Zealand Times, Volume XXXVI, Issue 8258, 22 October 1912, Page 4

COMPENSATION CLAIM

OPINION OF APPEAL COURT.

Tho Court of Appeal delivered reserved decision yesterday in an action which, in slightly different form, has been before Air Justice Edwards in the Supreme Court twice and tho Appeal Court twice. Tho appellants were William Schmidt, of Okau (.Taranaki) and William Bellshaw, of Tongaporutu (Taranaki), ana the respondent Willie Greenwood, of Okau. Tho respondent, as a plaintiff in the lower court, had been awarded damages against appellants, whom his Honor Air Justice Edwards had deemed to have mado a deliberate misrepresentation in a land deal. There had been two actions in the lower court. In tho earlier case the claim was for the recovery of damages upon cither of two grounds—(a) That upon a sale by tho defendants (Schmidt and Bellshaw) to tho plaintiff (Greenwood) of their interests under an occupation license with a right to purchase of certain land under the Land Act, the defendants warranted to the plaintiff that the area of such land cleared of forest and in grass was 122 acres, whereas in fact such area was 49 acres only; (b) that the defendants fraudulently represented the area of grassed lanil to be 122 acres, whereas it was only 49 acres. It was not disputed that" defendants represented to the plaintiff that tho area of grassed land was about 100 acres. His Honor found, on this action, that there was no ground whatever for the allegation ot fraud; but ho declined to give judgment in the claim for compensation as tho evidence as to area was vague. A second action was thereupon brought by plaintiff claiming tho sura of .6271* ns compensation for alleged misVeprescntatiqn. In judgment on this action Mr Justice Edwards found that tho representation was that the area of grassed land was 120 acres, that tho actual area was -)■ acres, and that defendants know, when they made the representation, that tho area was very much less than they represented. Judgment was given for plaintiff for £lB7 10s. At tho first hearing before tho Court of Appeal tho question considered was whether there had been fraudulent misrepresentation. The court found that there had not, thus reversing tho judgment of Mr Justice Edwards on this point. The question of whether compensation was payable in respect of warranty and innocent misrepresentation was reserved for determination at a rehearing before the Appeal Court. On the Bench at this rehearing were their Honors the Chief Justice (Sir Robert Stout), Sir Joshua Williams, Air Justice Denniston, Air Justice Edwards, Mr Justice Cooper, and Mr Justice Chapman. In his judgment yesterday Sir Robert Stout held that the appeal must bo allowed with costs on the lowest scale as from a distance. Their Honors Sir Joshua Williams, Mr Justice Denniston, Air Justice Cooper and Air Justice Chapman concurred, but his Honor Air Justice Edwards dissented. At the hearing Mr H. D. Bell, K.C., with him Mr J. H. Quilliam, of New Plymouth, appeared for the appellants, and Mr Martin Chapman, K.C., with him Mir Robert Spence, of Stratford, for the respondent.