CLAIM SUCCEEDS

Waikato Times, Volume 125, Issue 20862, 21 July 1939, Page 8

CLAIM SUCCEEDS

REMOVAL OF SHED COMPENSATION FOR FARMER Reserved judgment in an action arising out of the exchange of two properties and the removal of a shed from one of them was given in the Magistrate's Court, Hamilton, to-day, by Mr S. L. Paterson, S.M. The case was heard on June 16, when plaintiff, Edward Earle Yaile (Mr J. D. Daveys) retired farmer, of Rotorua, claimed £BS from James Cochrane Cleland Mr T. J. Fleming), farmer, of Reporoa, and Allan McLaren (Mr W. J. King) contractor, of Hamilton East. At the hearing plaintiff was nonsuited in his claim against McLaren and to-day the magistrate gave judgment for £3B 10s for plaintiff against the defendant, Cleland. The magistrate said that on March 31, 1938, Yaile and Cleland entered into an agreement for the exchange of certain lands. On part of Cleland’s land, which was let to McLaren, was a shed, which was removed on August 5, 1937, by McLaren, who claimed it as his property. Plaintiff had brought the action claiming the shed from McLaren on the ground that it was affixed to the soil, and alternatively claimed against Cleland that the shed was not a fixture, seeking damages for breach of an implied warranty of title. “At the hearing I determined that on the evidence the shed was not affixed io the soil and was tlie properly of the defendant McLaren,” said the magistrate. "I reserved the question of plaintiff's rights against the defendant, Cleland. “Plaintiff and Cleland believed the shed a fixture and there was, therefore, a mutual mistake of fact. The true position was that Cleland was selling the shed as part of the land, and tlie fact that it was not affixed to the land but was the property of the third party, was, pro tanto, a defect in the title to ttie land. “The plaintiff has undoubtedly suffered loss by the mistake and 1 think that although no money passed, the plaintiff, having given \alue, should ha\e his remedy.”