SALE OF A FARM.

Stratford Evening Post, Volume XXXI, Issue 9, 26 August 1911, Page 6

SALE OF A FARM.

DAMAGES FOll MISREPRESENTATION. A SUPREME COURT JUDGMENT. •I. .■ . _ . ■ Mr Justice Edwards has given Ids reserved judgment in the case of Willie Greenwood v. William Schmidt and William Bcllshaw, which was heard at the last New Plymouth sessions of the Supreme Court. It was a claim for £271 compensation for deficiency of grassed lands in a sale of a farm at Okau. Mr Spence appeared for plaintiff ■ and Mr Quilliam for defendant. The case was first before the Court in September last, but the plaintiff was. non-suited without costs, as there was not sufficient . -evidence before the Court as to the area of grassed land included in the contract for sale. At the second hearing, plaintiff brought forward the evidence of Mr E. W. M. Dysons, a licensed surveyor.

This evidence enabled his Honour to hold that' there was “ a deficiency of 55picres out of 100 acres of grassed land, if. the representation admitted by the defendants is accepted, or 75 acres if the plaintiff’s evidence as to thei actual misrepresentation is believed.” His Honour then proceeded to discuss legal points raised. In his opinion the claim must be treated as in a suit for specific performance by the defendants, the vendors. His reason for arriving at this conclusion . was tliat the plaintiff was then in possession of the land, the subject of the contract, but the purchase money: was unpaid. After discussing cases cited by counsel, his Honour found .bat 'there was very clear authority for at least the proposition that when the pm chaser had been lot into nossesf.if.n under the contract, and the circumstances had so far charged as to make rtv« nssion inapplicable or an inadequate remedy,j the purchaser migr.t have compensation in respect of 'nitrepiestillations not fraudu.mt. That was the case here. “Further/ the evidence adduced in this action,” continued his Honour, “and mother significant fact to which 1 shall presently refer, have put an entirely new complexion upon the matter, and have satisfied me in this action that the defendants cither knew, when they made tlic? representations which aro the basis of-the plaintiff ’s claim, that they were untrue, or that they made those representations recklessly and without caring whether they were-true or not. ' That these representations wore made with a view to inducing and that they did induce the contract, is of course unquestionable. Upon this head I acquitted the defendants in the former action between the parties, because I found it impossible to believe,’ upon the evidence then before mo, that the area of grassed land was only 49 acres, as then alleged by theplaintiff, instead of 100 acres, as, according to their admission, \Vhich. I then accepted, had been represented by the defendants. If I had been satisfied as to,, that fact I should , hayc found' ’it ‘impossible to believe that the defendant’s, who themselves did ed that area of was as they adiftit that they represented.-.-Because I was not at all satisfied on the result of the former action that there was any subsantial deficiency ■in the area of . the grassed land, I suggested iu the interim judgment which I gave in that action that the parties should agree to have an accurate survey of the grassed land made by a licensed surveyor, the report of such surveyor to the Court to be treated as evidence in the action. The defendants refused i~> rprro to this course, which war suggested with a view to saving updo~.s expense; and I thereupon inn suited tb-e Plaintiff without costs. it row ann-rs that the area of grassed land was actually only 45 acres, 55 acre-s le r r mban 100 acres, which in the former action I believed to be the amount represented, i: d 75 acres ess than the. amount deposed to.djy; the plaintiff,/supported by the evidence of Mr Clarke, the defendants’ agent in the sale to the plaintiff, and by the particulars given to Mr Clarke by the defendant Bcllshaw, written clqwn by Mr Clarke and signed by Bellshaw. The difference between the actual area of grassed land is so groat, and the defendants’ 1 refusal to act upon the suggestion which I made in the former trial so unreasonable that I can come to no other conclusion than that they wore quite well aware that the area of grassed land was very much less than they had represented, and that they refused to agree to a survey because they knew that the deficincy would he thereby exposed. I regret that I am compelled to withdraw the favourable opinion which 1 formed as to the value of the defendants’ testimony in the former action, and to give credit to the plaintiff’s evidence as to the extent of the misrepresentation. I ‘find therefore as facts that the repVcr.orifation' was that the area of grassed land was 120 acres, that the actual area was 45 acres, and that the defendants knew when they made the representation that the area was very much less than they represented. This finding entitled the plaintiff to damages in an action at common law.” ■His Honour also found that the plaintiff was therefore entitled to recover such sum as would place him iu the same position as if thp defendants’ representation had been true. Whether it was called compensation or damages was immaterial. His Honour estimated this sum, from the evidence before him, af;- £lB7 10s.

Judgment whs accordingly for plaintiff .for £lB7 10s and costs according to scale.