FARM SALE UPSET.

Waipa Post, Volume XX, Issue 1128, 13 August 1921, Page 8

FARM SALE UPSET.

LAW) AGENT SUED.

/ NEARLY £2090 AT STAKE,

Mr Justice Stringer, and a jury 9* twelve, at Hamilton on Wednesday con elude cl the case in which Arthur ■Colwell Upham and Leslie Camel on sued Harry Frederick Saunders, .and agent, of Te Awamutu, for the return of £I2OO deposit paid o* the purchase of defendant’s farm near Te Alpha, interest on the amount, £SOO /images and rescission of the,contract to purchase. ' Saunders entered a counter claim for specific performance of the agreement and for £250 damages foi non-fulfilment. Mr E. H. Northcroft appeared for plaintiffs, and Mr H. H. Ostler for defendant. During one stage of his evidence defendant said that as the party was driving away in 1 the motor he mentioned that the 15 acres of leasehold land referred to all lay on the western side of the road. Mr Northcroft said this was something new, and was commencing to cross-examine him on the point, when defendant remarked, “Oh, well, cut 11 His Honor (with emphasis): “What! Cut it out! You cannot cut out a statement; if it’s true it must remain in the evidence; if it is not true it Bhould not have been made! You cannot go into, the witness-box. on oath, make a statement, and then because you are questioned on it cut it out.’ ”' , ~ At the conclusion of the evidence for the defence his Honor advised the plaintiffs to withdraw all allegations of fraud, which plaintiffs consented to do. , ~ In summing up, his. Honor said it seemed to him that plaintiffs gave their evidence in an open and frank manner, and would he above inventin'o' for the purpose of bolstering up their .case. They obvfoilsly went away with the impression that there were 10& acres on the river side of the road. The witness Collins, employed as a sharemilker by Saunders on the property, said that he did not state this as the area, but hi's Honor' did not think that much reliance could be placed on Collins’ evidence, as he had made statements which he could not explain on the plea of lack of memorv. Plaintiffs apparently did not know much of dairy farming, though Cameron had been used to land, and it would be apparent to him that the land on the west side of the road was worth considerably more than that on the other side. It was highly probable, therefore, that he would ask the question while on the ground as to how much of this land was there. That'being so, h e must have been given some reply. . Commenting upon Saunders’ attitude in the witness-box, his Honor said it was hot one to inspire the greatest confidence, and it seemed to his Honor a remarkable thing for a witness to go into the box and make a statement, and’when he was cross-examined on it to coolly re> mark, “Oh, well, cut it out,” as Saunders had done in regard to a statement lie made. It appeared as though he did not fully recognise his duty to the Court or the jury. If he was prepared to cut it out he should not have put it in.. This, added his Honor, appeared to be the attitude of m.'nd of land agents and indicative of the sort of statements made when they were trying,"to effect sales. He was not referring to this particular case, but it' appeared to be part of the business of the land agents to make all sorts of statements to, ininfluence the sale of property. They exaggerated the virtues and minimised the disadvantages. His Honor then submitted the following issues to the jury;— 1. Was it represented to plaintiffs by defendant or his agent—(a) That there was a freehold area of the farm to the westward of the Te Aroha road, containing 108 acres; (b) that the 15 acres of leasehold ran along the entire northern boundary of,the farm; (c) that the boundary of' tlie leasehold portion of the farm was as shown on the plan prepared by Mr Farrer.

2. If the answer is “yes” to all or any of these questions, were the plaintiffs by reason of such representations induced to purchase the property. v

The jury returned after a few minutes retirement with affirmative answers to “a” and “b,” a negative to “c." and an affirmative to question No. 2. Mr Northcroft moved that the contract be rescinded. / Mr Ostler said that in view of the jury's answers he could not resist the application. On the question of damages his Honor said that as plaintiffs gave notice to rescind the contract on April 6th. and as, in result, they were justified in rescinding ori that date, it did not seem reasonable to expect them to look after the farm in the meantime without some compensation. f His Honor ordered the contract to be rescinded and defendant to repay the amount of the deposit. £I2OO, with interest on the amount at 6J per cent, from date of payment. He allowed a month for repayment, plaintiffs to account for milk cheques received during the interim, less £2 per week, which would allow to Cameron wages as caretaker as from April 6th. Costs were also allowed plaintiffs.