LAW REPORTS.

Dominion, Volume 7, Issue 1889, 18 October 1913, Page 3

LAW REPORTS.

COURT OF APPEAL. SALE OF STATIONS WORTH £41,500, PART PAYMENT; WITHHELD. DISPUTE ON FENCE MILEACE. _ Conflicting ideas of vendor and purchaser oocupied the attention of the Appeal Court yesterday. This, was a fhich three runs and stock in L 0 kelson and Marlborough provinces were sold for £41,600; all of winch waa paid over by the purchaser, with the exception of £3400, which he claimrepresented a certain difference regaming fencing. There were, it was oJaimed, only 164 miles of fences, as «F al m • m^o3 which were stated to be This was admitted by counsel lor the vendor for the sake of this case, but it was contended that tho transaction was a bargain between the parties involving no question of warranty. His Honour, the Ohief Justico (Sir Robert Stout) was associated on tho lienoh with their Honours Sir Joshua Williams, Mr. Justico Denniston, Mr. Justico Cooper, and Mr. Justice EdAr r ' ® Mr S° Harper, with him f.£' f- Murphy, represented plain"'•,l. i !in r ' Stringer, K. 0., wiuh nim Mr. B. L. Lane, appeared for defendant.

Claim and Defenoe. Tho plaintiff was William AotonAdums, gentleman, 74, Park Mansions, Kmghtsbridge, London, and the defendant was Duncan Rutherford, sheeptarmer, of Leslie Hills, Culverdenj Amuri. The statement of claim set out < L°ij y 1911, plaintiff sold the trochoid and loaseshofd lands known as tho Tarndale, Molesworth, and Rainbow runs, and also all the Bheep and i°/i S tnn 0n |] loso lands, to defendant for £41,000. Defendant had been in possession of tho land and stock sinco 191 L sum of £3400 and i-lfO interest was still owing, and defendant refused to pay. 4.T.^ e rPo I m?v denied that any part of the £3400 was owing, and as a further defence alleged that plaintiff or his agent had represented that there were 232 miles of fencing on the properties, whereas he subsequently discovered that there were only 164 miles. Ine £3400 not paid represented this difference iri fencing, a written warranty having been given to tho above effeot on. tho faith of Which defendant entered into possession, Plaintiff, in an amended statement, _ denied these allegations, and repudiated having made such a warranty. Tho case, as faT as question of faot wore conoorned, had beon heard before Mr. Justice Denniston at Christcliurch and removed to the Court of Appeal for 'hearing on questions of law. It was agreed between ■ the parties that, for tho purposes of tho argument, it should ho assumed that there were on the property sold at tho date of tho agreement only 164 miles of fencing, instead of 232 miles. The Points for tho Court. The Tarndale-Molesworth station properties, in tho Nelson and Marlborough Provinces, comprised 10,500 freehold acres and 319,400 Government leasehold acres. Tho stock consisted of 60,000 merino-sheep, 103 horses, and 180 cattle, and tho price originally asked for was £52,600, tho owner guaranteeing 10 per cent, per annum profit on the purchase prico for three years. The questions for tho determination by tho Court were: .. Was any! representation or warranty made by the plaintiff or his agent as to the mileage of fencing, and if so what was it? If it is found that a representation or warranty was mado as to the mileago of fencing, is the defendant entitled to recover for any breach of the representation or warranty, or is tho defendant entitled to deduct thd difference between tho two values of the fencing. How Many Miles of Fonoe? Mr. Stringor, K.C.. on behalf of dofendant, said that all the purchase money had been paid with the exception of £15,000, and the dispute then arose as to the extent of the fencing. Mr. Adams wanted his money, and Mr. Rutherford wanted his title, so it was agreed that tho title should bo given on payment of £11,600, leaving the remaining balance of £3400 to be sued for. If Mr. Rutherford had refused to pay tho balance, Mr. Adaifis's only remedy would have been an action for specific performance or to rescind the contract and sue for damages. The Chief Justice: Where is the misrepresentation P

Mr. Stringei roplied that in the advertisement of sale it was stated there woro 232 miles of foncing, and that was repeated verbally and in writing during the negotiations, whereas it was now admitted that there were only 164 miles. It was represented that tho fences were worth £10,000, but they did , not allego fraud—only innocent misrepresentation. Tho "Snow" Country. Mr. Harper, on behalf of tho plaintiff, said it was not tho intention of the parties to bo put into this position. Defondant paid £15,000 of the purcliasa monoy on March 1, after ho had measured up the fences. Mr. Justice Denniston pointed out that Mr. Rutherford did not measure the fences until May. Mr. Harper admitted his mistake, but contended that tho £15,000 was paid without any question being raised as to tho measurement. The vendor's estimate totalled up to £57,000. The statement as to there being 232 miles of fencing was merely an estimate not to be taken seriously by anybody. It was estimated thero were 50,000 sheep on the three runs, but Mr. Boddington's return was only 45,000, but, on the other hand, Mr. Ruthorford only paid £41,000 against Mr. Adams's total of £57,000. This country was known as "snow" country, and a man was very liablo to have a good time and then meet with a reverse. He denied, however, that Mr. Rutherford was induced by any misrepresentation to make the purchase. The measurement of the fences would take over two months, and would entail considerable expense, so could not bo guaranteed by any sane man. If Mr. Rutherford had asked for such a guarantee it would havo been refused. Mr. Justice Edwards thought a record of tho fences should have been kept, oven if a record of stock was impossible. "Buying a Pis In a Poha." Mr. Justice Denniston: "Your defence is that so far as tho fencing (joes, Mr. Rutherford was buying a pig in a poke?. Mr. Harper: He could have measured, tho fencing long before. Mr. Stringer: And thon we should never have entered into the contract. Mr. Justico Edwards: Ho would take it that the measurement of fencing was reasonably accurato. Mr. Justice Denniston: This was within tho knowledge of the vendor, but could not have been within tho knowledge of tho purchaser. Further Argument. Mr. Murphy, who followed, said that though the advertisement said that there wore 232 miles of fencing, it adifad that furthor particulars would

be given on application. Sir. Rutherford attached nniwrtanco to tho fences, and ho bought that which was worth £10,000, without asking for particulars or tho fencing. Prior to the settlement, however, Mr. Rutherford would have them bclievo thut ho thought he had two binding representations—one i\ s to the sheep and the other as to the fencing. He professed to have a representation, not to bo bargaining for Mr. Stringer, K.C., in reply, said that Mr. Adams asked to bo paid for 232 miles of fencing, though admitting that there were only 104 miles* On no principle of equity could his' claim be maintained. The numbers of sheep woi'Q affected by being lost, stolen, or dying, and when Mr. Rutherford asked for a guarantee it was 'agreed that he should go on tho basis or the shearing tallies and other books. Anybody with a largo place like this would have plans of tho property, and the fences should be shown. Judgment was reserved, and , the Court roso until Tuesday, when the case of Wilson v. Herries and others, a question of law affecting a Native'land matter, will bo argued, the Auckland case Ellacott v. Williams being fixed for Thursday, which exhausts the cause list.