PRIVY COUNCIL CASE.

Otago Daily Times, Issue 19903, 24 September 1926, Page 10

PRIVY COUNCIL CASE.

BISSET v: WILKD7CON. APPEAL ALLOWED WITH COSTS. (FnOM OUB ~ N COEBBSPONDENT.) LONDON, July 50. Judgment in the case Robert Hugh Bisset (appellant) v. Thomas Vernon vV’ilkinson and another (respondents) has been delivered by the Lords of the Judicial Committee ot the Privy Council. The case was heard a few weeks ago before Viscount Dunedin and Lords Atkinson, Phillimore, Carson and Mcrrivale. At the hearing (previously reported) Mr M. Myers, K.C., and Mr F. H. L. Brnngton appeared for the appellant and Mr Maurice Gresson and Mr F. O. Langley appeared for respondents. The appellant in this litigation brought his action in the Supreme Court of New Zealand to recover a sum of mney payable to him under an agreement for sale and purchase ot land. The defendants, by way of defence and counter-claim, alleged misrepresentation by the appellant in a material particular as to the character and quality of the land in question, and claimed recession of the agreement with consequential relief or, alternatively, damages for fraudulent misrepresentation or breach of warranty. , , . . Sheep-farnung was the purpose for which the respondents purchased the lands of the plaintiff. One of them had no experience of farming. The other had been, before the war, in charge of sheep on an extensive sheop-farm carried on by_ his father, who had accompanied and advised him in his Negotiation with the appellant, and had carefully inspected the lands at Avondale. In the course of coming to his agreement with the respondents the appellant made statements as to the properly which, m their defence and counter-claim, the respondents alleged to be misrepresentation. In the course of the judgment, their Lordships said: “By their defence and counter-claim the respondents alleged that the appellant ‘had represented and warranted that the land which was the subject ot the agreement had a carrying capacity ot 2000 sheep if only one team were employed in the agricultural work of the said land.’ It was common ground at the hearing and in the Court of Appeal that the carrying capacity of a sheep-farm is its capacity the year round. STATEMENT OF OPINION. “In an action for rescission, as in an action for specific performance of an executory contract, when misrepresentation is the alleged ground of relief of the party who repudiates the contract, it is, of course, essential to ascertain whether that which is relied upon is a representation of a specific fact, or a statement of opinion, since an erroneous opinion stated by the party affirming the contract, though it may have been relied upon and have induced the contract on the part of the party who seeks rescission, gives no title to relief unless fraud is established. The application of this rule, however, is not always easy, as is illustrated in a good many reported cases, as well as in this. As representation of fact may be inherent in a statement and, at any rate, the existence of the opinion in the person stating it is a question of fact. “In the present case the material facta of the transaction, the knowledge of the parties respectively, and their relative positions, the words of representation used, and the actual condition of the subject matter spoken of, are relevant to the two inquiries necessary to be made: What was the meaning of the representation? Wa-> it true? “In ascertaining what meaning was conveyed to the minds of the now respondents by the appellant’s statement as to the 2000 sheep, the most material fact to he remembered is that, as both parties were aware, the appellant had not, and, so far as appears, no other person had at any time carried on sheep farming upon the unit of land in question. That land as a distinct holding had never constituted a sheep farm. The two blocks comprised in it differed substantially in character. Hogan’s block was described by one of the respondents’ witnesses as ‘better land.’ "It might carry,’ he said, ‘one sheep, or perhaps two or even three sheep, to the acre.’ He estimated the carrying capacity of the land generally as little more than half a sheep to the acre. And Hogan’s land had been allowed to deteriorate during several years before the respondents purchased. NO CHARGE OF FRAUD. “Whether the appellent honestly and in fact held the opinion which he stated remained to be considered. This involved examination of the history and condition of the property. If a reasonable man with the appellant’s knowledge could not have come to the conclusion he stated, the description of that conclusion as an opinion would not necessarily protect him against rescission for misrepresentation. But what was actually the capacity in competent hands of the land the respondents purchased had never been, and never was, practically ascertained. “The respondents, after two years’ trial of sheep farming, under difficulties caused in part bv the experience, found themselves confronted by a fall in the values of sheep and wool which would have left them losers if they could have carried 3000 sheep. As is said in the judgment of Ostler J. “Owing to sheep becoming practically valueless, they reduced their flock and went in for cropping and dairy farming in. order to make a living.' “The opinions of experts and of their neighbours, on which the respondents relied, were met by the appellant with evidence of experts admitted to be equally competent and upright with those of his opponeuts, and his own practical experience upon part of the land, as to which his testimony was unhesitatingly accepted by the judge of first instance. It is of. dominant importance than Sim J. negatived the respondents’ charge of fraud. “After attending to the close and very careful examination of the evidence which was made by learned counsel for each of the parties, their Lordships entirely concur in the view which was expressed by the learned judge, who heard the case. The defendants failed to prove that the farm if properly managed was not capable of carrying 2000 sheep.“Questions of laches and of affirmance of the contract on the part of the respondents which were argued at the hearing, are not material for further consideration, , and in view of the course of the proceedings and the finding of Sim J. as to the honesty of the appellant in the statements he in fact made, it would be improper to accede to the application which was made at the board on behalf of the respondents for leave to proceed anew upon the charge of fraudulent misrepresentation. “The Lordships will humbly advise his Majesty that the appeal should be allowed and the judgment of Sim J. restored. The respondents must bear the appellant’s costs here and below.”