ACTION FOR DAMAGES.

Taranaki Daily News, 8 February 1919, Page 7

ACTION FOR DAMAGES.

ALLEGED FALSE REPRESENTATION. CLAIM FOR £IOOS. An action for to recover £IOBO for alleged false representation was heard at the Supreme Court yesterday, before his Honor Mr Justice Chapman, the parties having consented to have the case heard before a judge aiose. The plaintiff was Mrs Charlotte Benton, and the defendant Mrs Ellen Cressey, both of Hawera. Mr W R Haselden (Hawera), appeared for plaintiff and Mr C. !i Morrison, K.C., (Wellington) with him Mr A. H. Powell (Hawera), represented defendant. In outlining the case, Mr Haselden said the action was that of the purchaser, and alleged deception on the part of defendant in the matter of the inducement to purchase a farm of 54 I acres near Hawera. The claim set out that, prior to and at the time of the execution of-, the sale, defendant had falsely and fraudulently represented that the land would carry 33 cows and the usual horses and young stock This was believed by the plaintiff, whose husband was acting as her representative, and they purchased the farm. He understood the defence admitted all but the fraudulent representation. Plaintiffs had discovered that the maximum number of cows that the farm would carry was 25 cows. The loss they had incurred was £IOOO, which it was sought to recover from defendant- The farm had been advertised as carrying 33 cows, horses and dry stock, and for sale at £75 per acre. Plaintiff was attracted by the advertisement, and irtade 'inquiries respecting it. They were directed by Mr Christie, a land agent at Manaia. to Messrs Holder and Wilson, agents, Hawera, who showed them the farm. Defendant's sons—Henry and John Creßsy—were there at the time, and Henry Cressey stated the carrying capacity of the place was 33 cows easily. Upon Mr Benton remarking about the bare appearance of the farm, Cressey said they had had 43 head of stock on the place and they had eaten It out, but that he could be assured that it would carry 33 cows. The aigent who was present, also said that Cressev's asnnancS could be taken on the matter Cressev had come to Benton later and said that what had been said was quit.o correct, and that they had reduced their herd only on account of their father's health. ; THE PURCHASER'S STORY, f Harrison Benton, dairy farmer, Hawera, husband of plaintiff, said he was looking for a farm, on his wife's behalf, and was attracted by a newspaper advertisement, and went to Holder and Wilson's, land agents being introduced to them by Mr John Christie, of Manaia, about June "20. In company with Wilson and Christie he went and saw defendant's farm, where he saw defendant's sons, John and Henry. The grass and roots on the farm were absolutely eaten out. He spoke abont it to Henry Cressey, who replied that they had had 45 grown cows and 9 horses on the place, and had been greatly over stocked. The number of cows stated it would carry in the advertisement was referred to, and witness was told that it was a 33 cows farm easily, with of course the usual horses and young stock. Witness said it was impossible to judge what the farm would carry, and that he would have to take Cresaey's wr.rd. Cressey then said they had share-milked, the first two years, 32 to 84 eov s- As they were walking round the farm, attention was directed to w'-at witness called a "decent little linyfctack," to which Cressey replied that die hay came off "that little paddock, ;and showed the quality of the land." That was the only visible means vtitness had of judging what the farm/was worth Witness later discovered; that the stack came off a paddock (twice as big, well away from the othefr paddocks Mrs Benton was not wif.h witness on this occasion He tool? young Cressey to meet Mrs Benton at. Holder and Wilson's at 2 o'clock the same day, and they all went on to the fanVi again and inspected the house. Mrs IVuiton asked what the farm would earn?, and was also told "33 cows easily.,''' by Cressey. Later still the same Ajay Cressey came to assure witness th:<it what he had said was perfectly true.. This wa3 said in the presence of life wife. The assertion, as to carrying Capacity was made several times that 'layTo the lfiench: He always bought farms on (their carrying capacity. He could not (judge that accurately for himself. _ ( Continuing, witness said the agreement t/o purchase was signed that day, and tlley entered into possession of the farm/on July 1. Witness brought up ?■! caws, bought 2 from defendants, and arm/iiued to milk one, making 34 in all. fcows were put on to a swede padc, and then removed to another farm srrastin?. During .July witness aver--1 0 cows on the farm, in August 17, from September 1, the farm in dis- » was only a night paddock (excepting for 21 right up to Rebnntrv 1. In the meantime the herd was reduced to 30; There was not enough food on the farm to allow witness to c'mt up the bay paddock. The cows had been fed in thf davtime elsewhere. Tie had now hail the fnrm about, eight months. It hud been top-dressed and the earrvintr rapacity was now 24 cows and one horse. He had put more manure on the farm than he had ever heard of any one else doinp. THE CROSS-EXAMINATION. To Mr Morrison: He first saw the advertisement in Hie Hawera Star. The notice he relied upon for information was that of Holder and Wilson. Mr Cressey volunteered the information as to the farm being a 33 cow farm- In one ,of the gullies witness had doubts as to the real capacity of the farm, lie had not invited Mr Cressev's attention to the advertisement of the farm as a 32 cow farm. He was not aware at that time that Mr Kapa Thompson's advertisement referred to this particular farm. He had no dealings with Thompson, and did not inquire of him anything about the farm. He had had five farms altogether in his fanning experience. He bought them on the carrying capacity of the previous occupier. He had only hod one in the twelve months immediately preceding this transaction. He had since bought Surrey's farm on the opposite side of the road, for £7O per acre. There were no buildings on it. It had been sold for £7B The farm in question was now to be leased for 77s ner acre. Witness had made no bad bargains in any previous transactions. There were some natives at the farm ▼Tien witness went to see it. As he was backing bis cart out they asked him «feat he thOTw""* -** the Jmxsl re-

plied, "Not much; it's too thuudering bare for my liking." They replicu, "But look at the stock it's been carrying." Witness told Mrs Cressey in her own house what he had said to the natives. What he said to the natives was said in his own interests. He wanted to get first in with the agent. Mrs Cressey had tackled him about the statement to the Maoris, and she said it was not quite fair. Witness said he did not think it mattered, as cnJlr-Cros-sey's statement as to carrying capacity he had practically decided to buy the farm He did" not think what he said to the natives stopped them from purchasing. They could have got in before witness if they liked, as witness did not close the bargain till later in the day. Witness made a bargain witli Cressey that the five years' mortgage should be extended to seven years and that lie should be allowed to August 1 free of interest, on account of having to shut the farm up for a month- He did not remember saying to the other Mr Cressey that he would not sell the farm for £IOO per acre. He admitted saying to Jack Cressey, in August, after the purchase, that the place had "nevc-r carried 33 cows all the year," and Cressey replied that lie "knew it didn't, they reduced it right down in tile winter." After the dispute over the farm arose, in order to come to an amicable arrangement, witness said to Cressey he would be satisfied if it carried 30 cows. He admitted remarking to John Cressey about a week after the purchase, in speaking of Thompson's advertisement, which had not been taken out of the paper, that it was a pretty good description of the place. In leasing the farm to the present tenant he said the place would have to be well farmed to carry 25 cows, and the turnips from Surrey's farm would be required in addition. To Mr Haselden: It was a very mixed farm. He believed when lie purchased it that he had got a good bargain. A number of farms had freen sold in the district and the prices had advanced £lO and more above last year's figures. Negotiations for leasing the farm were opened about a. week ago, but no agreement had been signed. He had to lease it, because it was not Inrge enough for him to live in. He realised about August that the farm was not a 33 cow farm. If the farm had carried 32 cows, as described in Thompson's advertisement he would not have brought the action. He was desirous of avoiding the action. Corroborative evidence was given by Mrs Charlotte Benton. THE AGENT'S EVIDENCE. Francis James Vernon Wilson, land agent, gave evidence of receiving Mrs Cressev's farm for sale. The carrying capacity was first stated to be 35, but was afterwards reduced to 33. He was not a practical farmer himself. To Mr Morrison: He believed the elder Cressey was not a practical farmer, but had been a bank clerk He believed something had been said about intense cultivation in regard to the farm when the sale transaction was taking place. He had been on the farm once since, but saw no sign of intense cultivation He believed, what Cressey said, that the place would carry 33 cows He could not judge for himself what the farm would carry John Christie, land agent, Manaia, gave evidence as to introducing Benton to Messrs Holder and Wilson, and going with Wilson and Benton to Cressev's farm. He heard some discussion about cnrryiii;.' capacity, and thought it was stated by Cressey to be 30 or 32—it was "30 something" OTHER WITNESSES. Edward Laurent, farmer, Eltham, said he had worked on Cressey's farm on j wages, not as a share-milker. He did not remember there being ever more than 23 cows on the place while he was there. Charles Stone, salesman, said he had at one time leased a portion of the farm in question. In hie opinion its carrying capacity was about 18 or 20 cows. Under cross-examination by Mr. Powell, witness admitted having grazed various numbers of stock on the farm at different times. He denied having grazed 500 sheep there for a week on one occasion. Bernard Alexander Wann, farmer, said he had leased part of the farm some 8 or 10 years ago. He milked about 20 cows nr.d had some other stock. He linii ihe farm from October till the end i'f June. Towards the end of the time he had to remove liis cattle to another farm, because he had no feed on Cresse;, 's place. Cross-examined by Mr. Powell, he admitted that while he was on the place Mr. Cressey had on the back portion of the farm about 20 cows, 40 or 50 sheep, and, he believed, some other stock. Evidence as to the carrying capacity of the farm was also given by Walter Stone, commercial traveller, who said that in the district the farm was recognised as one of the poorest in the locality. Other witnesses examined were Richard Thomas Wyatt, Herbert Candy, Edgar Harrison, Dorothy Benton (15 years), and Bradley Benton (11 years), children of plaintix. DEFENDANT'S CASE. In opening the defence, Mr. Morrison said there would be a direct conflict of evidence with that of plaintiff's side. In the first place they denied the alleged fraudulent representation, and secondly, if there was misrepresentation, there was no damage. He then proceeded to call evidence. John B. Murdoch, farmer, who said he had held positions in connection with the dairying industry in Taranaki for many years, deposed that the carrying capacity of the laud was affected by various considerations. In his opinion, if the farm in dispute was put on the market to-dav it would be worth from £7O to £BO per acre. He had been over the farm the previous day, but saw no signs of attempt to grow summer feed for the cattle. There was no area closed up for hay. He was of opinion that portion could have been shut up for hay without interfering with the summer carrying capacity. When he went on the farm there were 24 cows, 1 bull, 11 weaners, and 1 horse. The carrying capacity could have been increased by judicious cropping. To Mr. Haselden: He thought the land was average land in the locality. It was probably a little rougher than some on the opposite side of the road. He thought at present it would carry 3D cows. In the winter when eaten bare lie did not think anyone, without an intimate knowledge of the land, could estimate its carrying capacity. When buying a farm he would not wh v vely on j an agent's advertisement 'he pro- | pertv. He would inquire " himself. ! If anvone like young Ore-' assured 1 liim that it would carry cows he j would feel obliged to accoi • word. To Mr. Morrison: He had had over^ 30 years' practical experience of dairy j farming in the Hawera district, j (Eleanor Blanche Stone, eaid da had

leased 40 acres of the Cressey's farm for three years, leaving there about 12 years. The first year she had 20 cows, and the other two years 25 cows, aa -well as 11 young 'cattle and some horses. Her husband also used rthe farm as a halfway paddock in removing cattle to and from the sale, during a short time at one period of the lease. To the Bench: It was used every week in that way. Sometimes his stock would bo left there for a week at a time. Continuing, witness said her husband sometimes left 60 or 70 head of cattle, or perhaps 300 or 400 sheep. She cut 12 or 14 acres of hay every year. The only grazing done on the road was perhaps for about an hour on Saturday mornings. She had no difficulty in maintaining her 25 dairy cows on the farm. Mrs. Baird, the then owner of the farm, occupied the other portion. She had one cow and a few young stock on her section. To Mr. Haselden: She believed the place would feed the cows all through the winter. She thought if fed properly the whole farm should carry from 40 to 50 cows Henry Eugene Cressey, son of defendant, said he acted as her agent in the sale of the farm. He was a bank clerk at Hawera. He admitted preparing the authority to sell the farm, and that when returning home he discovered he had stated the carrying capacity as 35 cows. Two or three of the authorities to sell had been delivered. Witness altered the figure to 32 on the balance of the copies, and went to town the next morning with a view to correcting the error on those delivered. He went to Holder and Wilson's and left instructions for the alteration on the copy left with them. He saw later that it was advertised by them as a 33-cow farm. He then described the interview with Mr. Benton after the latter had looked over the farm. Benton said he was overestimating the carrying capacity, but witness said they had milked 32 cows. Mr. Benton talked a lot about intense farming, saying that by growing root crops and lucerne the capacity could be greatly increased. Witness had been showing some Maoris over the farm when Benton came on to see it. The Maori had decided to buy the farm, and was waiting at the gate for Benton's car to get out of the way before he could get his buggy out. Benton, in reply to a question from the Natives, said: "The place is no good; it wouldn't feed a rabbit." Later, in the house of witness' mother, Benton said: "I put the Maoris well oti' buying your place." Mrs. Cressey said she did not think that was fair, and Benton replied that he knew it was a case of who got back to the agent's first, as he had decided to buy the place and he thought the Maori had also. | Witness had told Benton that they had not used the farm as a dairy farm except for the first two years they had it. When Benton asked if he would be safe in brinsjng 30 cows to the place, witness said they had milked 32 the first two years they were there. He also told Benton that the last year they had had 17 cows, 4 or 5 store cows, 6 young stock, and 8 horses. During part of the season they had also had 20 prize ewes on the place for 20 weeks. Benton said ho would be quite satisfied if he could put 20 cows on the place After the deal was completed, but before Benton took possession, he came out to the farm every day for the purpose of getting his own work on the farm commenced. Every time he arrived he said: "By jove, I like this place better every time I see it. It is just the place I have been looking for." Benton said that as he had been farming for a good many years he was now thinking of partially retiring. Witness never onco represented the place as a 33-cow farm. When witness was cross-examined by Mr. Haselden he became impulsively verbose. Witness denied representing the capacity of the farm as 33 cows. He disclaimed all practical knowledge of farming, and, in fact, vehemently proclaimed: "I positively hate farming, and always looked forward to the day when we would leave it, as my father had promised we should." "I quite believe you," remarked counsel. Evidence was also given by John Cressey, now a chemist's apprentice, who showed Benton round the farm when he came to inspect it. He told Benton they had milked 32 cows the first year or two they were 8n the farm. Witness did not know much about the stock carried then as he was only 7 years old at the time. He remained on the farm for six weeks after Benton bought it. At times he seemed very pleased with the farm and at other times he appeared ( doubtful about it. The defendant (Mrs. Ellen Cressey) said her late husband bought the farm from Mrs. Baird ir. 1907. For the first year or two they milked 32 cows, and al.io hud some sheep on the place. They ' would still have had the farm but for her husband's death. To Mr. Haselden; She could not say how many cow.; they had milked during the past four or fire years. Counsel stated the returns of butterfat for several months, 'but conld form no idea from that as to the number of cows milked. She knew her husband kept n number of dry stock for fattening, and also sheep. At this stage the hearing was adl_jpurned tali 930 .tide morning.