SUPREME COURT.

Dominion, Volume 5, Issue 1524, 21 August 1912, Page 2

SUPREME COURT.

(Beiorp His Honour Mr. .Tustico Sim.) WAS IT MISREPRESENTATION? SHORTAGE J3F STOCK. A N EXCHANGE.OF PROPERTIES. ' Alieccd shortage of sheep and cattle delivered in connection with nn. exchnngo of farnis resulted in a claini for .£509 damages being lieard in the Supreme • Court yesterday before.Mr. Justice Sim and a, coinmoii jury of twelve. The plaintiffs in .the action are Charles Henry Osmond, valuer, of Wellington,' Gordo- Osmond, farmer, of Masterron, and Charles Clifton Osmond, farmer, of Xlasterton. The defendant' is William Robertson M'Leod, farmer, of Porirna. Jlr. C, P. Skcrrett, K.C., with him Jlr. R. M. Wat-son, appeared for the plaintiffs, while Mr. M. Myers appeared for the defendant. The Allegations. It appeared that Charles Henry Osmond is the lather of the ot.her two plaintiffs, who wcro until recently farming at Po'rirua. It was pet out in tho statement of claim that on September 2, 1911, Charles Henry Osmond entered into an agreement with M'Lood to exchange tho former's property ut Porirun for tho latter's property at Wainui-o-mapii, near Mastorton. Osmond's property consisted ol' a leasehold (until lately owned by Rudolph Nitz), stated in tlie agreement to contain 3SO acres, and a freehold (until lately owned by the late Francis M'Parlandj, stilted in tlio. agreement to contain 533 acres. M'Leod's property consisted of freehold, stated in tho agreement to contain !)873 acrcs. The agreement to exchange was subject to existing mortgage?, oxchaiijfc of stock,-and of liabilities, and in addition Osmond was to pay a sum of .615011 to M'l/Cbd. It was also provided thai no stock wns to be sold by either party, that a tally should bo taken on or before October 21, 1911, and for thu purpose of equitable adjustment all sheep were to be considered as being of tho vnluo of 12s. Gd., cattle 605., and hor?ra ,£lO. Further, for tho purposes of tlio exchange it was stipulated that the stock should be of the following numbers: Osmond's: Sheep 2100, cattle M and horses 5. M'Leod's, -sheep 5300, cattle 200, and horses 8. Subsequently it was discovered that the agreement contained tho following errors of description:— Tho correct area of the land mentioned as Jl'l'arland's was 531 acrcs, not 538 acres. Tho amount of tho purchasing Clause of the property known as Nitz's was .£-1750, not i-1500. The correct area of the property known as Wainui-o-mapii was 38GS acres, not' 3873 acres. The mortgage on M'Parland's property was under-estimated by .£7B. On September 11, 12, and 13 these, errors of description were discuised. by OsmowV o-nrl M'Leod, and. in tli2 course of such ■discussions (so it was alleged), M'l.eod represented to Osmond that the live, slockon the Wainui-o-mapu property were substantially as set out, that .there' had been no loss of live stock to speak of, that a loss of. 16 sheep would cover everything, ami that the number of cattle and horses would bs in excess of the number, stated. By theso representations Osmond wos induced to enter into a subsequent contract, which mado allowance for the errors previously mentioned, but which also contained tho .following:— "111 order to prevent any doubt arising between the parties .... it is agreed that the sheep (on tho Wainui-o-mapu properly) shall be accepted by Mr. Osmond as being 5-18J, cnttlo as 20U, and horses as 12. Theso numbers are to be moro or less., and no allow-anco-shall be made on either side foi any decrease or. increase in such numbers." When the plaintiffs (Osmonds) took possession of tli-? Wainui-o-mapu property and stock I hey found that tlieru had been heavy mortality amongst the stock, nnd tho tallies taken showed that there was a shortDffe of 8S cattlo and 512 sheep. It was alleged that the representations, as to tho stock bt uhich the plaintiffs were induced to enter into the contract, were fraudulently. made bv the defendant (M'Leoil), who well knew' that thev v.-tvo lake, or that they, were mado recklessly, the defendant not caving whether they wev'e trte or fai?e, and knowing that 'at the time there had been heavy mortality amount the sheep. Itv reason of these mutters, the plaintiffs (Osmonds) had suli'ered loss to the extent of .taon, and How claimed damages for ihisanKMiiit together with costs. The Dcfentc. In his statement of defence, M'Leod admitted having entered into the agreements and having effected the exchange. He denied that there lir/J been anv mlfraprfssntirticn or that the plaintiff hid been influenced, br aity reDres»ntatious

mado by him. No person wns authorised tn make any of thu representation* alleged to have been made regarding tho stock, M.'Leod .-aid that before tho second agreement was entered into, ho informed Charles Jlenry Osmond that ho (M'l.eod) believed lie had suffered heavy losses of stock since purchasing from Harry Harris {the former owner), and Osmond entered into the agreement' with the knowledge; that MM/eod held Chat beliuf. Charles Henry Osmund, on behait if tho plaintiffs, visited and viewed M'fx'Oil's land. before September 2, 1011. and. in puichasinjf t'lie property and stcek, relied upon his own observation and experience and upon his own- judgment of tho carrying capacity of blio land. Mr. SkoiTclt opened at some length to tho jury, and remarked that tho case would present dilliculties on account of the conflict of evidence that would result, 110 outlined the evidence that would be given in support of plaintiff's case. 'I'ho iirst witness called was Charles Henry O-niond. ono of the plaintiffs. Witness gave his occupation as assurance superintendent, and gave details of tho negotiations that had taken place between him and M'lx'od and M'Leod's agent in. connection with the exchange of ■ the properties. A Registered Money-Lcnder. ■In cross-examination by Mr. Myers, witness stated that lie did 'not know v.-hy ho was described in the papers of tho rase as a "valuer." Ho had been registered as a money-lender, 1 but did not register Iwcous.o of lending money at over 10 per cent. lie had been advised to register for another reason. He admitted, however,. that he had lent money on occasions at moro than 10 per cent. ' Mr. Myers was proceeding to crosspxnmino i tho wifnvs regarding property' transactions outside the present deal, when—— Mr. Skerrott; objected that it had nothing to do with the easo. "I contend that it is really an almso of tho proceedings of tho Court. Because tho plaintiff has had the fortiority 'to 'bring this nction, my friend is going to'niako it as hot as he can for him." After a short discussion with his Honour, Mr. Myers did not pursue this particular line of cross-examination, but ivent on to other matters. Other evidence was given by Charles Clifton Osmund, one of the ' plaintiffs; Krancis O'Brien, assistant electric linesman (formerly manager of a sheep station); W. O.'Morris, shepherd; L. Holmwood, auctioneer, stock anil station agent: and J. J. li. Moody, manager of Dalgety and Company's Masterton branch. Before opening for the defence. Mr. Myers submitted .that lie was entitled to a non-suit. There was, he contended, no evidence of fraud to warrant £he case going to tho jury, and the claim was based entirely on fraud. Mr. Skerrott had to get over tho evidence of his own two witnesses—.Morris and Moody—whose testimony went in the direction'of proving that the .bulk of the mortality took place subsequent to the second agreement. His Honour pointed out that Sir. Skerrott had opened an alternative claim without objection. Mr, Myprs admitted that he had not interrupted his friend, but, in any case, ho was, bound by tho statement of claim. However, even if llio claim wore not limited to the statement of fraud, tho paragraph providing that "no allowance on either fide should bo made for decrease or increaso" would prevent the plaintiff from succcsding. His Honour said that it was not advisablo to withdraw the case from tho jury at that, stage. Ho would not- decido any of iho points at that slage, but would rtserve leave for counsel to move for a non-suit at a later stage. Mr. Myers then delivered his opening address to tho jury, after which tho Court adjo.irned until 10.30 a.m. to-day.