LEVIN LAND TRANSACTION.

Dominion, Volume 2, Issue 331, 19 October 1908, Page 2

LEVIN LAND TRANSACTION.

KIBBLEWHITE v. SOMERVILLE. JUDGMENT FOR THE DEFENDANT. Judgment in the case between Jame Henry Kibblewhite (plaintiff) aud Willian Georgo Somerville (defendant) was deliv ered by Mr. Justice Cooper on .Saturday This was an action in which plaintiff askci the Court to set aside an agreement mad l by his father on August 8,. 1907, with th defendant for the sale to him by the de fondant of a property containing 709 acre at Levin for £3700. The ground on whicl tho suit was based was that the agrcemen was induced by the misrepresentations o ono Robertson, defendant's agent, who i was alleged during the negotiations for th purchase of the block represented to plain tiff's agent (his father) and afterwards' t< the plaintiff that a considerable extent o valuable fiat land was included within th boundaries of the block. Plaiiltiff ■ allegei that in reliance upon such- representation and in the belief that they were true, h< entered into the agreement for purchase The defence was substantially a denial o tho alleged misrepresentations and an as sertion that if in fact they were made th' person alleged to have made them was no the defendant's agent, and that in fac plaintiff and his father had sufficient infor ination from the defendant to enable, then to ascertain with the exercise of ordinar: prudence tho true boundaries of the block _ His Honour said there were two pre liminary questions to decide '.before ho cann to tho main issue. They were:—(l.) Wai Robertson the defendant's agent for th< purpose of showing tho boundaries of th< property to plaintiff and his father? am (2.) Was plaintiff's father • provided by tin defendant with a plan reasonably suilicien to enable-him to ascertain .whether in fac the boundaries so pointed out were sub stantially correct? The Court was quit) clear it would have been practically impos siblo for Kibblewbite to have approximately ascertained the boundaries from 1 the plai given to him by the defendant or frorr mere examination of the plan which Robertson had. It held that Robertson was the defendant's agent for the purpose ol showing Kibblewhite, senr., and on a subsequent occasion both Kibblewhite, senr., and plaintiff, tho approximate extent, position, and boundaries of tho property. Tho substantial question was, his • Honour said, whether upon the evidence, adduced by both parties he could find that the plaintiff had proved alleged misrepresentations? After . having ' reviewed the evidence at length, he observed: —"The onus is on the plaintiff to establish these representations. It is true that no fraud is charged against the' defendant, but the plaintiff s case is based upon what is really in substance au alleged wilful deception by both Robertson and Rogers, and the plaintiff is under an obligation to establish such deception beyond any- reasonable doubt. If tlie balance is equal, the plaintiff must fail. It is impossible for mo to hold that the balance inclines in favour of the plaintiff. If anything, it is perhaps in favour of tho defendant. I desire, however, to avoid saying anything which might lead to any inference that I have come to the conclusion that the plaintiff and his father have given wilfully untrue evidence. ' It is sufficient for me to say that tho plaintiff has failed to establish' tho misrepresentations upon which his suit is based." Judgment was therefore given for the defendant with costs on the middle scale as .on a claim for £500, certificate for second counsel and extra allowance of 15 guineas for second day and 10 guineas for third day, witnesses' expenses and necessary Court fees to be .ascertained ,by,,,.the Registrar. ■ _ ,' " . . Mr.' Morison appeared .for. the plaintiff and Mr. Chapman, K.C., with him .'Mr. Dunn; for tho defendant. ' . ;