LEASE OF A DAIRY FARM

Taranaki Daily News, 7 June 1930, Page 13

LEASE OF A DAIRY FARM

CLAIM FO-R DAMAGES FAILS

MISREPRESENTATION NOT PROVED

ACTION OVER KAIMATA PROPERTY

Judgment failing the claim of Robert Adams against Theodore Bernard Knofflock on the grounds of fraudulent misrepresentation in connection with the leasing of a farm at Kaimata was given by Mr. Justice Blair yesterday. He held -that fi-dud had not been proved. Knofllock obtained judgment on his counter claim for £6B and was granted costs as on a claim for £3OO, disbursements and witnesses’ expenses, and £l7 I7s counsel’s costs for two extra days of trial. - Knofflock \Vas cross-examined by Mr. A. Coleman.. Ho said he. milked on his homestead farm. Any dealing he did was on the property that Adams had had at Kaimata. He went on it in July, 1928, and Adams took over in July, 1929. He put the first lot of stock on it in August, 1928. He thought he had the place stocked by the end of August with 40 dry eows and 15 yearling heifers; this was done gradually. In September he put on 50 or 60 sheep and made up the balance of 200 sheep about February.- In November he sold 25 or 30 cattle. He kept all his sheep till Adams took over, except some odd ones that died or were taken by the butcher. When Adams took over there were about 25 eows, four or five bulls, and about 20 yearlings. He quitted his stock when he saw an opportunity for profit. To His Honour: The average number of stock on the place from August to the. time Adams took possession would be about .50 head. t’"'TO Mr.' Coleman: The winter months were July, August and September. The feed was at its worst in the winter and early spring. Perhaps he had occupied the farm for the best months of the year. He left four stacks of hay on the place. This was cut from about ten acres on the front of the farm. He valued it at £lB for 25 tons. This was cost price. Newton King, Ltd., had left him a similar quantity when he took possession and he expected Adams to leave an equal amount on the expiration of hie lease, or to pay £lB. PRODUCTION OF HAY. Counsel pointed out that the agreement provided that- Adams should cut the hay to be left from 20 acres. Knofflock agreed that average meadow hay should produce three tons to the acre. Counsel: Does it not indicate the quality of that 20 acres when you thought Adams would produce 25 tons from it instead of 60 tons? Knoffloek: It all depends how soon j you shut it up and cut it. 1 Counsel: The quantity Newton King, Ltd. left you was 25 tons? Knofflock: No, more than that. j Counsel: Y T ou left Adams 25 tons and you expected him to leave a .similar amount? —Yes. He considered there was 40 to 45 acres on the front of the farm suitable for dairying. That was only a guess, the same as the estimates of 25 to 30 acres by witnesses- for Adams. Counsel: Adams top-dressed, did he not? Knofflock: I should not have thought he did. Well he paid someone £3O for manure, and he. would not leave it on the road ? I should not think so. Before he bought the place, said Knofflock, he knew nothing about it, or who had been on it. When he and Burgess conversed during his occupancy of ’the place the latter told him he should* carry more sheep to clean the farm. The question arose during, ordinary farm gossip. He bought more sheep later. In March, 1929, he had on, the farm 200 breeding ewes and 20 head of cattle, as stated in the authority to sell given on March 23. ’When he purchased the place from Newton King, Ltd. he inquired what stock it would carry. He did not intend to live on it till it “got a bit of heart.” Barnitt, the land salesman, told him it would carry 20 dairy cows and 300 big sheep. Barnitt worked out what the stock would bring, in connection with the farming of the property. Hq could not remember what the figures were. Newton King, Ltd. had been dealing on the place before the purchase. When the authority to sell form was filled in at the Inglewood office of Newton King, Ltd., he supplied the information, read the document, and signed it. He admitted the authority said the last owner ran 30 dairy cows besides sheep and dry cattle. This could not have been the last owner, who was Newton King, Ltd.

WHY WAS IT PUT IN? Counsel: Well what did you put it in for? —You must nut in what the last owner did, for the purposes of a sale. It is important. for a purchaser to know what the previous owner did?— Very important. The intention is to let the purchaser form a favourable opinion of the property? —Yes. You did not know whether the statement was true or untrue? —As far as I knew it was true. Knoffloek thought the statement in the authority that there were no weeds on the place was put in by mistake. There were weeds on the place. He had just glanced over the document before signing and said, “That will do me.” Counsel* I suggest it is one of the most important things for a purchaser to know whether there are weeds on a farm ? Knoffloek: Oh, well, there are weeds all over the shop. It doeen’t matter much, Counsel; Please' answer me! Knoffloek: Yes, it ie important. He admitted he had not dairied on tlio place during the nine months he occupied it. After Adams left he did not put stock on the farm for about three weeks. He was getting the benefit of about an acre of turnips grown by Adams. He himself had never carried 300 big sheep or 20 dairy cows in milk on the place, either before or after Adams was there. ■He admitted that on the settled country in the Inglewood district it was usual to estimate the carrying capacity at a eow to three acres. Mr. Coleman: You have said 40 to 45 acres on the Kaimata farm were fit for dairying, and you arc satisfied a cow to three acres Is a fair thing to allow? Knoffloek: Yes. ' And you propose to-carry, on the land, as it is at present, 20 dairy cows? You have said that? I have.

And you also say that an ordinary farmer is entitled to expect 250 lb. of fat from each caw? ' I do.

You know that as far as the evidence has gone no farmer has had that average from the Kaimata' property in question ? It is a different class of land.

MUCH ROUGHER COUNTRY. He said it was much rougher country and the soil was lighter than on his homestead farm. It was like thirdclass land compared with first-class. The front pasture on the Kaimata property was quite as good as that on his homestead farm. He admitted there was a good deal of danthonia at Kaimata. Danthonia would not produce the same amount of hay as the rye and other English grasses at his homestead. He admitted the carrying capacity, acre for acre, at Kaimata could not be compared with that at, his homestead. Mr. Colemdn: Therefore I suggest that the front part of the Kaimata farm cannot carry anything like a cow to three acres? Knofflock: Perhaps it cannot. Won’t you go any further than that? That will do. . Frederick H. Barnitt, chief land agent for Newton King, Ltd. at _ New Plymouth, said he sold the Kaimata, farm to Knofflock in 1928. He then gave Knofflock an estimated carrying capacity of 20 dairy cows on the 40 to 45 acres in front and on approximately 170 acres at the back from 275 to 300 bir«- sheep, a condition being that the place was further subdivided by two paddocks. If the fence required had since been put in the capacity would have been brought up to his estimate. To Mr. Coleman: He did not know-, personally, whether the fence had.been built. He superintended the farming of the property for Newton King, Ltd., before Knofflock took over. There was a man working on the place. He used the farm for grazing 130 ewes, 150 hoggets and 25 in-calf cows; the front part was shut up for the hay afterwards taken over by Knofflock. Recalled,- Knofflock said he did not remember Barnitt making the condition that the fence should be erected. He had put the fence there, however. MOREY’S TO ADAMS. Claude Walter Morey, land agent for Newton King, Ltd., at Stratford, said he knew the Kaimata farm before his negotiations with Adams. He advised Adams to put on the first year 15 dairy cows and about 150 sheep. No other representation was made by him. To Mr. Coleman: He knew Adams, after leaving Cardiff, desired to get another property, but not necessarily for dairying. He was aware Adams had not sold his herd and wished, if possible, to milk the following season. He denied having told Adams the carrying capacity was 25 dairy cows and 300 big sheep. He gave Adams the advice about the first year’s stocking because he knew there was a lack of turnips and root crops and because of Adams’ capabilities as a farmer he thought it was advisable to under-stock the first year. He had not known that Adams had been one of the highest producers at Cardiff and- had improved the farm there. He had not referred to the authority form during any part of the negotiations. Mr. Moss submitted that both on the facts and the law Knofflock was entitled to judgment. He would not press the counter-claim other than £lB for hay, £lO for damage to the shed, and £5O for rent. To Mr. Coleman His Honour said his main difficulty was to find that Knoffloek had knowingly- misrepresented the carrying capacity of the place, either through his agent or himself. Mr. Coleman submitted the whole body of evidence tended to show suspicious circumstances. Knofflock had not brought evidence to counteract that impression. His behaviour, his farming experience and his knowledge of the district tended to show that he must have known that the carrying capacity could not have ben as allegedly represented to Adams.

HIS HONOUR’S REMARKS. The judge said it seemed to him the case had to be decided on the facts and not on the law. He was very, sorry for Adame. Probably the fact that he had not made a euccass of the farm was due to. his handicaps in beginning operations in a season that was admittedly a late one and that he had no store of root crops to tide over the period before the grass came away. He did have a certain, quantity of hay, but something more wae needed as supplementary fodder for dairy cowe during the time the grass was lying more or less dormant before the spring. As far as the court was concerned, however, the ease was one in which a serious charge had been made. It -was admitted that unless fraud could be proved the action must fail. Inference was not sufficient in a case of this kind. Some judges even held that fraud must be proved up to the hilt, and while His Honour would not go so far as that, he would say that it must be proved beyond all reasonable doubt. It had been alleged that Knoffloek, through his agent, had represented the carrying capacity of the place "was 20 dairying cows and 300 big sheep; this it was said was a misrepresentation, otherwise a cruel fraud. The onus wae on Adams to prove the representation was made, but His Honour did not think it was necessary for him to find that it was. However, assuming that it was, it was essential for Adams to prove thdt when the statement was made by the agent Knofflock knew that it was fraudulent in its nature. There had been no such proof, but Adams had called a number of farmers who said that in their opinion the carrying capacity alleged to have been represented was too high. It had not been shown that one of these farmers had indicated his opinion to Knofflock at any time. i Knofflock had said he took the farm from Newton King, Ltd., upon the identical representation regarding carrying capacity that it was alleged had been made afterwards. There was no evidence that Knofflock did not believe the statement of the carrying capacity. If it were found that he knew it was dishonest it would be necessary to find that Barnitt- ha,d been dishonest in giving the estimate to Knofflock.