SALE OF A FARM.

Otago Daily Times, Issue 19270, 6 September 1924, Page 15

SALE OF A FARM.

A SOUTHLAND CASE. SUPREME OOtIRT DECISION. At the Supremo Court at Invercargill the time of the court was occupied for four days with a civil action in which Robert Hugh Bisset sued Thos. Vernon Wilkinson and Frederick Johnston for half-year’s instalment of interest for a mortgage on a farm which plaintiff sold to defendants. Defendants counter-claimed for £SOOO on the grounds of misrepresentation. Messrs J. B. Gallon and H. Macalister appeared for plaintiff and Messrs A. B. Haggitt and J. Campbell appeared for defendants. _ His Honor Mr Justice Sim, in giving judgment, said:— , “By am agreement in writing dated May 7, 1919, tho plaintiff agreed to sell to tho defendants a sheep farm known as Avondale, situated near Nightcaps, in Southland, for tho sum of £13,250 10s, of which £2OOO was paid in cash, and the balance was to bo paid on May 1, 1924. Interest was to be paid in the meantime on the unpaid purchase money. The defendants took possession of the farm and worked it in partnership until July, 1523, when the defendant Alexander retired from the partnership. Since then the defendant Wilkinson has worked it on his own account. On June SO, 1924, tho present action was commenced to recover the half-yearly instalment of interest amounting to £316 19a 3d, due on May 1, 1924. On July 1, 1924, the defendant’s solicitors wrote to tho plaintiff giving him notice that the defendants rescinded tho contract for tho purchase of the farm on the ground of misrepresentation. The defendants filed a counterclaim in the present action in which they allege that they were induced to enter into the contract for tho purchase of the farm by false and fraudulent representation on tho part of the plaintiff, and they claim to have the contract rescinded, or, in the alternative, to recover £SOOO as damages. The representation alleged to have been made was that tho farm had, a carrying capacity of 2000 sheep if only one team wore employed in tno agricultural work on the farm. Tbo evidence for tho defendants was to the effect that the plaintiff, in answer to a question put to him by Wilkinson, sen., the father of tho defendant Wilkinson, stated that th© carrying capacity of the farm was 2000 sheep, and that he afterwards said the same thing to the defendant (Wilkinson) when he inspected the farm. According to the defendant Wilkinson the plaintiff, after producing his wool returns showing that he had shorn 1700 sheep at his last shearing, said to him: “You see where I get my 2000 carrying capacity from; 50 fleeces to the bale, and Hogan’s property will carry 300 sheep, which I did not then have working.” The plaintiff denied that he at any time made a definite statement as to the carrying capacity of the farm, and says that he did not do more than express tho opinion that if tho place were worked as he was working it with a good six-horse team, it would carry 2000 sheep. “The position was that the plaintiff had not carried on sheep-farming on the exact area sold to tho defendants although ho had done so on a larger area. It was admitted by tho defendants that (hey were told these facts in connection with Hogan’s block, and they knew that the plaintiff was carrying only about 1500 sheep on the farm when the contract wa.s made. In ordinary circumstances any statement made by the owner, who has been occupying his own farm, as to its carrying copacity, would bo regarded as a statement of fact. This, however, is not in this case. Tho defendants knew all about Hogan’s block, and knew also what sheep tho farm was carrying when they inspected it. In these circumstances it seems to me _ that, the defendants were not justified in regarding anything said hy the plaintiff as to the carrying capacity as being anything more than an expression of his opinion on the subject. I am satisfied that what he said was, and still Is, his honest opinion on the subject. Assuming, however, in favour of the defendants that this view is not sound, and that the plaintiff must be treated ns having definitely stated as a matter of fact that tho farm’ bad a carrying capacity of 2000 sheep, the question to be considered is whether or not the defendants have established tho falsity of this statement. There is a marked difference of opinion between the opposed witnesses on several questions, but they all agree in saying that the present carrying capacity of tho farm is only from 1309 to 1600 sheep. Several of tho defendant's witnesses said that it would not he reasonably practicable to raise tho carrying capacity much beyond that. ... “That the farm would deteriorate as n sheep farm was to fcc expected from tho erratic way in which the defendant Wilkinson carried on the business of tho partnership. Ho was not content to carry on the business of sheep-farming proper, but engaged also in sheep dealing, and cropping and dairying. Ho has boon in possession of tho farm for more than five years and ought to have been able to prove what its carrying capacity' was. But-, owing to tho erratic way in which ho conducted the business, and to his failure to keep any proper records, it is impossible to ascertain what tho carrying capacity has been in the past. The question is still a matter of speculation and opinion. There are, however, some figures available which show what largo numbers of sheep tho defendants were currying on the farm from time to time. . , .

“In the circumstances tho defendants ought to have boon able to demonstrate what, the carrying capacity wa.s. They have not done so; and the evidence leaves tho question in doubt. Tho defendants have failed, therefore, to prove that tho farm, if probcrly managed, was not capable of carrying 2000 sheep, and the plaintiff is entitled to judgment on the counterclaim. Judgment would accordingly bo given with costs according to scale on a claim for £SOOO, and disbursements and witness’s expenses lo> bo. fixed by tho registrar, I allow £ls 15s per day for three extra days, and £lO 10a per day for second counsel for four days. The plaintiff is entitled to judgment on tho claim. Judgment accordingly for £316 19a 3d, with £8 6s costs.”