MISREPRESENTATION?

Wanganui Chronicle, Volume 74, Issue 192, 15 August 1931, Page 6

MISREPRESENTATION?

KORONITI FARM DISPUTE LENGTHY EVIDENCE ENDS JUDGE RESERVES HIS DECISION Evidence was concluded last evening in the case in which Alfred Emmett, of Palmerston. North, proceeded agaiust William Gardiner, of Hamilton, for dam ages amounting to £7lOO, in lieu of recission, on the grounds of misrepresentation as to the carrying capacity of a farm of 1326 acres at Koromti, 20 miles up the AVanganui River. Appearing for plaintiff were Messrs P. E. Baldwin and A. M. Onglcy (Palmerston North) and for the defendant, Mr C. L. Mac Diarmid (Hamilton).' As the case was based on fraud, fraud would have to bo established for the plaintiff to get any relief, said his Honour, when Mr Mac Diarmid opened his case in the morning. Recession was impossible, as the sheep were now partly sold and quite a different marketable proposition and the Palmerston North properties, received in exchange for tho Koroniti farm, all sold, fsu evidence as to the shortage of sheep had come from the plaintiff, said his Honour. He could uot infer that there hat 1 been a shortage. Plaintiff had had his opportunity of checking up on the number.

AVilliam George Miller, manager of the Bank of New Zealand, Palmerston North, said that on January, 1930, the stock return for the farm was 1800 sheep, 400 lambs and 75 cattle. James Phillips, farmer of Galatea, three miles from the Koroniti farm, said it was formerly owned by Mr Ham mond, witness then being the manager. He had kept half yearly tallies, returns being made by Mr Hammond to Dalgety and Company. During the last two years of his management he had wintered about 2,500 big sheep. During the two seasons he shore about 3000, including lambs. AVhcn the farm was sold to Mr Fleming iu 1923 there were approximately 3000 sheep on the place. In December, 1929, witness mustered for Mr Emmett for shearing. He did not have a-clean muster, as a good many sheep were not got in. That was on account of rough weather, dirty country and bad fencing. It was possible for sheep to change paddocks and also possible for them to go off the farm. AVitness had seen sheep in the bush at the back of the property. He had seen sheep of Emmett’s (four miles travelling distant) on his own property. The sheep he mustered looked a bit rough coming in, but came out of the wool very well. The farm had gone back into gorse considerably during the last 18 months or two years. The carfyirg .capacity had gone down since Emmett took over. In Gardiner’s time the farm was fairly clean. Gardiner had worked hard on the farm. In Hammond’s time he got nothing under 75 per cent, lambing and it went up over 100. The ewes clipped about six pounds. Air Hammond averaged 20 acres cropping a year. Some years it was 40. Turnips was the crop mostly put in. Defendant’s Evidence.

William Franklin Gardiner, defendant, said that he bought the farm in .1925 from Mr AV. 8. Fleming. Before purchasing he thoroughly investigated the carrying capacity of the farm from Dalgcty’s books. He had seen Hammond’s stock returns, he being the owner previous to Fleming. AVitness made IDalgety and Co. half yearly returns. In the first year, 1926, he wintered 2628, iu 1927. 2129; 1928, 2254. Shearing returns were: 1925, 2420; 1926, 2111; 1927, 2562; 1928, 2820. While on the property he grubbed all the gorse, improved fences, put up one new one, cleaned hundreds of acres of second growth, made a wholesale clean up of scrub and ferns and sowed grassseed on the burns. Each year he ploughed for cropping swedes, maize or chou mollier. AVhcn plaintiff had inspected the farm he could have seen all the farm. “Could Not Have Been Worse." Compared with the condition when he left it. the farm last week could not have been worse if it* had been entirely abandoned. When he sold out every fence was sheep-proof. Not one was sheep-proof when he visited the farm last week. When he stated the carrying capacity to plaintiff he thought that such was true and had he kept the place he would have expected to winter the number stated. He thought the Maori was the chief of the pa and one of the main owners. The Maori had offered to sell the freehold for £2. AVitness did not purchase, as he knew that it could be purchased at a tremendous lot less. He still thought tho freehold could be purchased at £2. In the opinion of witness the land had gone back through insufficient stocking, bad fencing and not moving the stock about. In reply to cross-examination during the afternoon session plaintiff said that in three years he had lost 1403 sheep. In the first year he lost 873, the main draft coining off sick country and not suitable, while 607 had been bought cull lambs. The second year he lost 287 nu* of 2849. That-yeai he bought cull lambs on the river. Out of 3,063 in the third year he lost 243. Incorrect Stock Return. After a lengthy period of questioning by Mr Ongley, witness said that he could not do without Dalgety’s figures as to what he had carried on the place. Mr Ongley: Are you the sort of man that makes wrong statements? AVitness: Not intentionally. Air Ongley: Do you make starutorv declarations that are not correct? AVitness: 1 would not do it intentionally. In reply to further questions witness said that one declaration, a sheep return, was made without consulting books and was wrong. He had made it up when he was in AVanganui at one time. He thought that it was nearly right, but he did not actually know what stock wore on the place. Lengthy evidence was heard as to the amount of cropping done, the amount of seed sown, and the carrying capacity of the crop. AVhen defendant had given up the place thorp were about 1050 acres of fair grass land. In 1929. without any propping, the carrying capacity would have boon about 1000 breeding ewes and 1000 other sheep. Plaintiff tolQ Mr Ongle- that he had heard rumours that 20 bales of wool had been sent back for being packed. Dalgety and Company might have told him, he did not remember. The last two years’ wool had been sent down to Dalgety’s with instructions to overhaul it and sell to the best advantage. “Carrying Capacity 2500” Frank Dilloi. Mien, farmer, of Koroniti, said his >erty adjoined that of

plaintiff. He had been on his property for 20 years and had done casual valuations for the Alaori Land Board for a number of years. The farm had improved decidedly under Gardiner’s management. His work had included improving fences, putting up new ones, and cutting a great amount of scrub. He had ploughed, and stocked heavily crushing out a great deal of fern and also burned out fern. Practically all the gorse on the place had been grubbed. It was well under when he 5 left. In his opinion Gardiner had materially increased the carrying capacity L of the farm. Fences were sheep proof and the farm in goo- order when Garf diner sold. In 1922 Air Hammond wintered 2250 sheep all told. AVhen ' Gardiner sold to Emmett the carrying I capacity of the farm with reasonable • cropping was about 2500 sheep with 200 . cattle. AVithout cropping the carrying capacity would have been 1500 to 1600, about 80G ewes ami 800 dry sheep. AVitness said he had inspected the pro perty last Friday. The farm had gone back a lot. Fences were going to pieces. Scrub «vas encroaching on the grass a lot and the fern was coming up a lot. The gorse was worse than when Gardiner left the farm. Since Emmett took over the carrying capacity for sheep had decreased a good deal, but it would be hard to say how much. The disrepair of fences would not allow crushing the fern. During tho last half of 1929 there wore a lot of sheep died in that district, a lot of owes and a lot of hoggets. A loss of 500 in 2100 would not be uncommon on such country. Present Freehold. To-day, if the Afaoris would sell, the freehold of the land would be about £1 an acre. If they could sell he thought the natives would jump at £2 an acre. Adjoining property would be worth about 5s an acre in 1929. Ropata Rangitahua was almost the head of the pa, being looked upon as an important man. He did not have a large share in the land but had a good deal of influence with the others. Mr Hammond had wintered about 1000 breeding ewes. AVilliam Spencer Fleming, farmer, of Waikato, said he well knew the farm under discussion. He had purchased it in 1923. The number of sheep he took over with it was 3032, 92 cattle and about six' horses. In 1923 winter he carried 2430 big sheep without hoggets and had 40 acres of swedes. In 1924 he wintered 2150 sheep, and 150 cattle without crop. In 1925 he sold out to Air Gardiner, 6550 sheep going with the place. He thought there were 250 ewes, the others hoggets. Lambs docked were: 1923, just over 500; 1924, over 700. In 1925 Gardiner shore 2420 sheep and in 1926 2111. Gardiner improved tho farm considerably, cutting 500 acres of scrub, bringing under the plough 40 acres of new ground and IS acres of old ground. Ho put up two or three sets of new ground, kept fences in good repair and put up new ones. In his third year he made his greatest impression on the gorse. The carrying capacity was increased consi lerably under Gardiner’s management. AVhen the farm was sold to Emmett, witness could have wintered 300 more sheep. “No Work Done.’’ The biggest difference ho'saw when : Emmett took over was no work being done. He noticed that gorse was not cut in the first year, ami sheep tied up in the blackberry, not far from the shearing-shed. The farm was now in a disgraceful condition. The farm looked as if it had been abandoned. Sheep were in fair order and cattle in good order. Air AfacDiarmid: Hew were they paddocked? AVitness: They were all in one pad dock and that was 1326 acres in size. (Laughter). Further, witness said that gorse and i blackberry had not been cut and build ings and yards were indescribable—they were in a shocking state. Evening Session After an adjournment for tea, the hearing of the case was continued in the evening. Recailed, Joseph Soler said that tho , value of the remainder of the lease on ,* the basis of £l2 an acre and the ' farm’s represented carrying capacity t would be £8444. Ewan McGregor, farmer, of llamil ( ton, said he saw the farm in the case, in 1927, and went all over the prop erty. It was in very fair order Fences and gates were in very fair < order and sufficient to hold the stoc . i He had inspected the property last < week and in 1927 the carrying capac ity was 2300 sheep and 400 cattle, but was now about 1500 sheep and 30u cattle. Last week the gates were all open, the stock living on Lij© host ’ country and the other going back. Scrub had lessened the carrying ca ’ pacity by 50 pei cent, at the back of the farm. Addresses By Counsel The highest testified carriage of ewes was 857 and the highest suggested number .1200 and no witness ; had thought more, said Mr Baldwin iu . addressing the Bench. lie submitted | that the land could not have possibly carried 1500 ewes under reasonab e ( farming. He submitted that Air Gar- ; diner had made the statement reck ( less.y and had never any warrant for 1 making his bold jump of 600 extra i ewes. 1 It was the duty of the vendor t' state that cropping was necessary, -aid , Air Baldwin. The vendor had told him that in the . most illuminating way by letting him sec where cropping was done, remarked | his Honour. The vendor had no reason to believe < that the farm would carry that num ber of sheep and therefore, that the ■ statement was reckless, said Mr Bald win. The fact that the property hud not been well farmed since did not touch the matter at all. “What I cannot understand is that ( why you wait until the bottom drops out of the farming business before you found out,” said his Honour. The delay cast a certain amount of doubt ok the pica that the statements uf Mr Gardiner about the carrying capacity carrying such weight with the plaintiff. Unless it was proved that the statements had this wonderful effect on the buyer was true, the plaintiff’s case fell through. Plaintiff had slept on the matter for two years before he found out. AVhatever Air Gardiner had said, even if he made a mistake, was said in the way of a muddle and not in the way of dishonesty, saicl Mr mid. His client’s whole conduct was to show that he was a “mug” in the matter. Birt ho must have had a dis honest mind in the matter for the case to succeed. Even if he had meant dishonesty in what he said, that had had no effect upon the plaintiff. He had bought after an inspection, and eon eonofirmed by another inspection made, before he completed the pur-

chase. The first complaint made in jegnrd to carrying capacity was made in January, 1931. In staating that he did not look upon the statement about the right to purchase with any importance, as the plaintiff must have known about such matters where Maori land was concerned, his Honour said that he did not know whether he would give a written decision but that he would be returning to Wanganui on August 28. The Court was accordingly adjourned until 10 a.m. on that date.