LAW REPORTS.

Dominion, Volume 5, Issue 1416, 17 April 1912, Page 3

LAW REPORTS.

COURT OF APPEAL,

QUESTIONS OF WARRANTY AND MISREPRESENTATION-

FRAUD NOT IN QUESTION

Questions of warranty and innocent misrepresentation, in connection with the Aew Plymouth case of Schmidt and Bcli--7" v - Greenwood, formed the subject of wgal argument in the Court of Appeal joaterday. Tho points involved were rather important ones, and tho Bench was occupied by the Chief Justice (Sir Robert otout), Mr. Justico Williams, Mr. Justice Demnston, Mr. Justice Edwards, Mr. sfu CoopM ' n,ul ilr " Justice Chapman. \m»» I ,' >revio,,s sitt >«gs of tho Court of Appeal, the case came up for hearing in ~"?f , '""V . ot "" appeal from a decision PI ~i n"' th , B S "l>re'»e Court at New ill mouth en August 23, I'm. !„ t] le original action heard in .T,, 11e , 1910 W Oreenwood, farmer, at Okau/ proceed" iWl'h LV l ft m * SchmWt »»'l William ti rr ' if" 1 far,llc '- s . of 'I'onsnporntu, alleged traudulont misrepresentation in Resale of 1022 acres of iaml in the Minn Survey District. The th V v ? s thnt Schmidt and Bellshaw, Inn, g H l 'h'E aSents ' lliul Grcen>oo(l that there were 122 acre* in grass. wasnn. al u ßed POT coutra tllat H« an» only 4'j acres. ,rH h V lccisi ? n of Mr - Justico Edwards innr m Octol '«. 1910- In tho *,»'• his <Ie «s''>». his Honour K;, Jt is not in dispute that the w jenihnts (Schmidt and Jiellshaw) reH re f'u e(l to the PlaintilV (Greenwood) that the area of grassed land was I about 100 acres. ... It is, however, P ii°. Pe n to say at <"'ce—an 1 emphatically—that, assuming this statement to nave been inaccurate, there is no justification whatever for tho charge of iraml ... I am satisfied that if the uetendaiits had Irccn asked for a warranty they would have refused to give it, and tliat tho plaintiff did not understand that they were giving it. ... tpon this action, as it was framed, the plaintiff must, therefore, have tailed, but I luvc yet to consider whether or not tho plaintiff can succeed m his claim tor compensation as in an action for specific performance of the contract for sale under tho special agreement made at tho time of the completion of the sale, and the amendment of the statement of claim to which the defendants' counsel consented at the trial." His Honour then went on to state that further evidence ought to bo called to enable him to arrive at a satisfactory conclusion as to the area of the land under grass. The parties would bo allowed fourteen days in which to agree to have ii proper survey of the grassed land, as it existed at the rime when Greenwood took possession. The report of a licensed surveyor would be treated as evidence. I'ho parties, however, did not come to any agreement, and Greenwood was accordingly nonsuited, but without costs. Subsequently, however, Greenwood had the land surveyed, and then formed tho opinion that there had ouly been 45 acres under grass at the time of tho sale. Hβ accordingly brought a further action (as if it were a claim for compensation in an action for specific performance of the agreement for sale) claiming .C 271 damages. • The second action was heard, and, on August 23, Mr. Justico Edwards gave his finding, in tho course of which he wont on to remark that the evidence adduced in tho action had put an entirely new complexion upon tho matter. Tho learned Judge also withdrew the favourable opinion which he had formed as to the value of the defendant's testimony in tho former action, and gave judgment for tho plaintiff for -EIS7 10s. and costs .£35 Is. Cd. Subsequently Schmidt and Bellshaw appealed from this decision upon tho ground that it was erroneous as to finding of fact and determination of law, and tho appeal was heard before the Chief Justice (Sir Robert Stout), Mr. Justico Denniston, and Mr. Justico Chapman. On the second day of the hearing the Chief Justice said that tho Court had been considering the position, and the question arose as to whether the Court should not be enlarged. One of thy members of the Bench (Mr. Justice Chapman) had already given a judgment on the principal point at issue, viz., whether compensation is allowable for misrepresentation made innocently and without a warranty. Another member of the Bench (Mr. Justice Denniston) had expressed an opinion on the samo judgment when tho case was beforo the Court of Appeal. • Eventually it was decided to arque the question of fraud only, and if it afterwards became necessary to arguo tho question of warranty and innocent misrepresentation, that could lie settled beforo a fuller Court.

When decision was delivered, the learned Judges were unanimous in their opinion that the finding of fraud was not conclusively supported by the evidence, and that, therefore, the finding must bo reversed. Hence it became necessary to argue the remaining questions vesterdav. Mr. H I). Bell. K.C.. with him Mr. j. U. (jmllinm, of New Plymouth, appeared for the appellants, nnd Mr. Martin Chapman, K.C., with him Mr. R. Spence of Stratford, for the respondent. Argument had not concluded at 4.45 p.m. when the Court adjourned until 10 30 a.m. to-day.