THE MOTUKA KA BLOCK

Timaru Herald, Volume XIC, Issue 13335, 11 July 1907, Page 5

THE MOTUKA KA BLOCK

ARGUMENT IN THE APPEAL COURT. Special—By Telegraph. WELLINGTON, July 10. Argument in the case of Belcher and Chapman v. Mackenzie and Scott was continued in the Court, of Appeal to-day. Mr Skerrett cited further authorities in regard to- the question of compensation and contended that, the fact of the alleged misrepresentation being merely verbal and outside the . contract of sale did not affect the right of the purchaser to recover. He further urged that it must be assumed that if the area of tlie tustock block had been correctly represented, the purchasers would the property for a less sum. Mr Just ce Dennks'ton combatted tins contention and said that as a matter of fact such an assumption could not be made against the vendors as they were entitled to say that, they lyi-d fixed the price they would; take for their • property and- the purchasers could either take it or leave.it. There was nothing to show that Mackenzie. and Scott would have accepted less than .'the, purchasers actually paid. .Mr Skerrett urged that nothing had been said to put the purchasers on inquiry as to the area, and- that 'the *d rect result of the .representation was. 'that the vendors had received an enhanced price. He further contended: thai' the evidence and correspondence ■ showed that, the- purchasers had never in any way waived or abandoned their .claim. Mr S. (!•}. Raymond in opening the cafe for Mackenzie and. Scott, referred to the main findings of fact in' ill- Justice Chapman's judgment, namely, that. Mackenzie had never put the area of the tussock block in any more defih te form than as a matter of opinion, • arid further that any <ftatemsats made as to 1 the area had not 'induced the sale. He submitted that these findings were conclusive and the Court of Appeal would not go behind them. In regard to the legal afp.ect of the case he '.t.rgued that the representation, if it amounted to a warranty, could not be; enforced until the purchase had been completed and the legal estate acquired by the purchaser. This had not yet" been done in this case. If the Court found that tlie alleged statements a.s to area did not constitute a, warranty but a representation which the purchasers might set up by way of an equitable defence, then lie submitted that the only remedy of the purchasers was rescission of the contract. The statement, assuming it had been proved, might prevent the vendors from compelling tlie purchasers to perform the contract but- it could not give the purchasers l the rightto claim the benc-fit. of the contract'and at the same time a substantive r glit to claim compensation, ill" Raymond discussed at some length the equitable doctrine of compensation and argued'that, as applied to this case it depended on whether there was a difference between the area of land which the vendor was asking the purchaser to take and the expressed subject matter of the contract. In this case the vendors had agreed to ■ sell 7780 acres and they were prepared' to transfer that- area so that there wa.s no difference'between what, the contract said the purchasers'shoitld take and the actual area, wh eh t.h/' vendors could give. Any verbal representation outride tlie contract was not enforceable in a claim like.this. Counsel, cited numerous authorities in support of this contention and also referred: to the legal principles governing lho relation of principal and agent showing' in this case the repre?'entat;ons of an agent, if proved to have been made within his authority, would give the purchasers the r ght to rescind the contract and nothing more. Mr Raymond contended further that the sub-sales showed that the claim of the purchasers was much smaller than was alleged. He concluded his argument by distinguishing the cae'es that had been cited on" the oilier

'Mr F. J. Eolleston followed and proceeded to examine the evidence in which the purchasers ba&ed their claim. He pointed 'out the inconsistences in Gorsb.',e"s statements \rfiicJi, when tested by the documentary evidence, showed that his evidence was quite unreliable. Mr 1-iolks-ton also pointed out inconsistencies in the statements of' the other and contended that- the purchasers had'fa led entirely to show that Ihe alleged tion," whether made , by the vendors, them-sl-Ivls or by (Jorsbk'. had brought about o>* induced tile contract. He accepted the tests put by the other side in regard to Mackenzie's' letter and urged that, judged by these t<-:sK the letter did not amount to a- representation but merely a. stattnifnt passing on to the purchasers what the El-v.-orthys had told them in regard to the area 'and putting them on enquiry inasmuch as it- said that the. land had not then been surveyed. ' ' Mr Rolleston had not conelued his address when Ihe Gourt rose for the day. The case will probably finish to-morrow morning.