SUPREME COURT.

Dominion, Volume 7, Issue 2175, 13 June 1914, Page 17

SUPREME COURT.

DEAL IN WAIIiATO SWAMP LANDS. CLAIM FOR DAMAGES, CONCLUSION OF THE EVIDENCE. Tljo case of Ramsay M'Dougall v. ,T. Chapman, a claim £3UOO damag(\s for alleged misrepresentation in respect to a .block of land in the Waikato, between Hamilton and Morrinsville, -which was sold to plaintiff, was resumed in the Supremo Court yesterday before His Honour the Chief Justico (Sir Robort Stout), and a special jury of twelve. Mr. T. Jl. AVilford, with Mr. \Y. Perry, appeared for plaintiff, and Mr. C. lVSkorrett, K.C., with Mr. C. W. Tiingliam, for detendanl. The Land Condamnsd. David C. Missen, of Hamilton, described the difficulty of draining peaty swamps unless (lie clay subsoil was readied. On M'Dougall's farm the clay could not be reached. Thonias Hinton, farmer, who had lived in the Waikato for 50 years, and was chairman of the Kirikiriroa Road Board, said that the value of Mr. M'Dougall's property (except for about 200 acres on the frontage) was flothing. Even thoso 200 acres wero not worth more than £2 an acre four years ago. The prospect of bringing tlio swamp •into rise was so small that it was not worth while undertaking. Richard M'Villy, chief clerk of tlio New Zealand Railways, produced petitions from residents in tlie vicinity of the land sold by defendant asking for a railway siding. These petitions, he stated, had been declined.

To the foreman of tlio jury: Every request for a siding made since 1907 had been refused.

James Riddell also gave evidcnco as to the worthlessnoss of plaintiff's land for farming purposes. This closed tho case for the plaintiff. Nonsuit Points Raised. Mr. Skerrett formally asked for leave to move for a nonsuit on the following grounds:—(l) That the contract which was affirmed by this action was validly rescinded, pursuant to the terms of the contract, before tho commencement of this action; (2) that tho statements relative to tho quality of tho land are mere matters of opinion, and that His Honour should withdraw the ease from the jury, upon tho authority of Lord Justice Turner in Dimmoek v. Hallett; (3| that iho statements wero matters of opinion or fact, were not material, and were not actcd upon by plaintiff; and (4) that there was no evidenco to go to the jury that tho defendant, J. W. Chapman, know that any of the statefronts which were made (most of them being matters of opinion) wero false. His Honour reserved to counsel the right to move for a nonsuit accordingly.

Tho Rash Bargain Aspect. Mr. Skerrett, in opening the case for tho defence, said the matter could be summed up in a single sentence: ihis was tho caso of a man- who had inconsiderately and incautiously entered : into a bad bargain. He had bitten off more than ho could chew, and now sought to have the bargain practically set aside, and' to bo compensated for his loss. If claims of this sort wore lightly accepted chaos would reign supreme in the'commercial world'; liveryman who made a bargain which turned out to his loss would bo at liberty to come to the courts and have his loss redressed, and compensation obtained lroni his more successful bargainers. Learned counsel called-attention to the fact that plaintiff" took up the land in April, 191U, and opcupied it until August, 1912, and tho writ was issued on October 3, 1913; yet during the wholo of that period there was no complaint, verbally or in writing, from M'Dougall or his solicitor, charging Chapman with fraud.

The Land Appraised. James Laiv, residing in the Woodlands Drainago district at Waikato, said that four years ago he took up 3000 'acres of swamp land, of which ISO acres wero ploughnble. When ho purchased his swamp lalid it was very similar to what M'Dougall's was now. Jivery pieco which ho had drained and burned and grassed iiad been a success. Tho only high ground which he had was island?, the highest being about SOft. above tho surrounding country. On M'Dougall's farm tliero was clay showing all tho way along in tho "mile" drain. Ho- saw 110 reason why tho front portion of M'Dougall's property should not have been brought into grass. The main thing in bringing tlio land into uso was draining. His systemof draining was to ciit down to four feet" tho first year, go down another two feet the next year, and a similar' distance tho following year. By that means ho was down to the clay over' nearly half his property. He valued tho front part of M'Dougall's at £12 an acre, and tho back at £3 10s. to £'1 an aero.

lo His Honour: When ho took up his land there were 700 or 800 acres that sheep could ruu over. None of tho back part of M'Dougall's land was of that quality.

Moiiord TVliitaker, farmer, said he took lip iSO acres of land close to plaintiff's section about two years ago. He had succeeded in bringing 50 acres into grass, and was well satisfied witli tlio lesuits of his work. He inspected parts ot' iU'Dougall's land in January last. In his opinion, tlio whole Dlaeo was capable of being drained. The front of the section would bo cheap at £10 an acre (exclusive of buildings), and beyond the rnilo drain it was worth £3 to £4. Tho country was all undulating, and it was impossible to say what the dopth of the swamp at any given place was.

To Mr. Wilford: Ho had not been on tho back portion of .Al'Dougall's section. The back comprised 1600 out of tho total aro a, of 1830 acres.

John William Humphrey, farmer, on 135 acres at Gordonton, about half a mile fromM'DougaH's, described the drains on plaintiff's land. Both tho mile and tho half-mile drains wero carrying water and wero down to tli'o clay. Thoy had been constructed a long time and were in good order. From his knowledge of tho district ho could seo no reason why M'Dougall's property could not bo drained.

To his Honour: His land had been broken in and liad stock on it' when ho took it up. To Mr. Wilford: 110 valued his 135 acres at £.1485. At the present time it carried 7 milking cows and 2 calves. Ho had got that property in exchange for another section of '10 acres near Auckland, which carried 40 sheep and (i horses. He inspected M'Dougall's land in company with Albert Chapman, lie did not go over tho back country. John Henry : Reddington also gave widcrico as to the value of M'Dougall's farm. Fred Hawke (recalled) said lie had stated he would not sell tiis farm under an advance of £5 an acre. The Vendor's Version. John Wplls Chapman, Roxburgh Street, Wellington, the defendant in the action, said lie had at present no occupation other than looking after his properties. He purchased his Waikato property on January 1, 1006. Mo purchased two areas of 71G acres and f)000 acres, paying £10,000 for the lot. Some drains were then made. Before anything could he done with the property a road approach had to be rondo to tho block. The "half-mile" and tho "mile" drains

were put in by the Drainage Board. He spout about £5000 o« itMtiroriog .the land. After he had it surveyed ho put, it straightway flir the market, Hi' described his meeting with defendant (stated to be en the* Palmers-urn North station), and bis gcsii'sg to Hainiiton with llawko to view some land owsied by Albert Cliapn'iaßj suul wliWh was lijMlcr offer to Hawke. ilaivke, lie said, deferred deciding tm a pnreliaso until he had had tlio opinion <:rf M'Doo.g.Ettt. M'DoncaJl subsequently met them ami viewed tttc property, llav.ke agreed to- btiy, and during conversation M'Doitgall asked witness if' ho had a block of 200® acres for sale. Witness replied that lift had a block of 1830 aerc-s, and Jt'Dougull said that he and Haivke would ittsf>M.t it. Two days aftonvards wHficss, bis brother, Hawke, awl M'Doagall #e#t to see tlio property, which he had mentioned, and which plaintiff eveat-flally agreed to' purchase, insjSectian Perfunctory.

Witness went mi to state that there had been u« real inspection <jf the property. They Were not- on. this place for a longer period than two horn* It tcjb true thai) witness hud v aritose veins, but_ that subject was never mentioned during t.h.o visit. M'DougalJ was % professed expert, and he had Said that fee was quite satisfied with the property from what ho had sect). Wit-ttess was not at that ttm-o a member of the Woodlands Drainage Board, tie hati no eon* versatioa with flaintiff as to the intentions of tlio Drainage Board, afid he did not know what passed between his bro* thor (who Was on tlio board) aftd M'Dougall. When ayraßgiii-g details of the purchase he told sr.Do.ugii II tltst if he was prepared to sftend £1000 on the properly during. the first ■ year lift would accept a £500 deposit. He further agreed ta allow the brat two years' interest to bo added to the principal. On the following morning plaintiff accepted the offer and paid a deposit of £1. Prior to going out to visit t%« section under offer to M'Dcngal!, Huwke said to witness: "Where do I orno in :i the. d"al comes off?" Wifawss replied that- bo would givo tbo. ustial commission of o per cent.., roughly, £200. In January, 1912, desiring to dear up his Wailoito affairs prior to leavmg far England, he made an offer to those who Isad purchased from him to accept £5 10s, an acre cash in full satisfaction, instead of tlio originally agreed upon prices of £8 and £9 pet acre extending over a period. That offer was accepted by 18 out of }.!) purchasers. Jf the drains Were pMt in in a proper manner, and the land allowed to consolidate by- putting at! stock, the • tvhoie of that swamp land could bo brought in saceessfuHy. He was working land o.f similar quality himself. Buyer Asks No Questions.

To Mr. Wilford: Whilst on tho property which he subse-iuentiv hoUglVt, Mr. M'Dcmgall sever 'ohoo in' witness's hearing made any foforeitc© to or asted any question abfftst the tjuality (if tlio land.. He did not t'.-li .'Jl'Dmigaß that tho back part of the block was as good as tho front part, v.lrch they lnd viewed. Ho sever told 31'Dsagall that tho Drainage Board Were gtpg to spend, £5000 oil the drainafw of tlio swamp, When they were (in tlk section h& knew that no railway sMittg had been promised by tire- Govci'flfticnt. H.-fld ho made tho stat-effiimt tJia-b a siding was promised it- would l-iav-e been a statement thai, ho kii.eiv to bo untrue. Ho denied telling M'Doilgaii fliat tho land, on being pjou-glied wonld grow tho bfiit English grasses. Edwin ■fhotnasj farmer, of Hillside, gave evidence as to tho value of tlio swamp laud wlieij brought into cultivation.

Albert Ohopmaii, fntfnci', c-f 'Wailuttc, said that I» kid been fai'ising o.u swamp. lands for eight yfcus. Me hiitl sold part of his land to Hawlsc. With ft. proper use of drains and stock) there had tam very few faitees' to 'brkig that swarftp land into iise, Ho acconipan'icd plaintiff and defendant when plaintiff's land was ' inspected. DefciidflM, made no statement to the effect tJrot the back land on M*'Douga.H's was all of tlio sa.mo quality as the front kiwi The inspection did itot proceed further because M'Dougall said: "It is all tlu. same swamp as far as you cvA sen." To Mr. Wilford; None of the. statements of misrepresentation' alleged I against "his brother were ever made in witness's presence. James David Martin M'Tntyre, land agent, gave evidence regarding the preliminary negotiations leading up to Hawke's purchase of a Waifcoto soetion from Chnpm&n. This closed tlie cafe for defendant. At 8.60 p.m. the further hearing was adjourned no til 9JO a.m. to-da;V. MORTGAGE MATTER. FAIRNESS IN MERCANTILE DEALS. The Registrar of the Supreme Court (Mr. W. A. Hawkins) read the j««lgnienfc of Mr. Justice -Edwards OA a mr> tion uhder the Bankruptcy Act, 19055, heard by Ittm in Slay last. Tire parties in the ease were the &qvuty4)ffic'ia , l. Assignee, in Bankruptcy of tiro property of Michael Horsey King (plain tiff), and -she Onehimga Sawftiillkig Company. The motion was for a decree declaring tfcit upm payment •by the Deputv-OHicial Assigwe to the On«ihunga Sawmilling Cornptoy of all rconcys owing under tho trims of certain deeds and a proper release beiftg procured, the said JVc-pmy-Oifiriai Assignee was ei.titled to a vaiid release and discharge of the said deeds. In tho course of tlifi judgment ft was stated that the properties ia qiie&tiofi i in the proceedings were comprised in two deeds both dated May 19, 1013, and both nsido between King and tho defendant, company. The first of the deeds was a mrir'tga'go o£ a Crown -li» cense to cut timber upon Crpwn lands, The deed also infrludea ft mill site, held under lease frtrnii a private {Wreom. The second deed was a se!ftW:ity, over the mill plant. Each ins'.Uiim.ent. was ■executed for tho purpose' of securing to the defendants, the payment of £150 and for the further purpose of indemnifying one of the defendant fiompiifly's d;r<K> tors from his liability hi respect of certain promissory notes, pa.vab.lo on demand, endorsed;' by him for the accommodation cif bankrupt. After having reviewed tho facts of the case .and tho legal argument. His Honour said tliat nothing.could bo more unfair rind unconscionable iltaii a transaction which must necessarily involve one party, who was simple enough to Miter into it, in a heavy loss for the lieJie- 'j fit of tho other party, who was astute enough to md.net> him to .do so, and which would probably result, as it' Trad resulted, in the present ease, in h.i& bankruptcy. It was futile to ilescnho this as a fair and: ordinary mereaetita transaction, A decree was ordered in accordance with tho prayer of tho notice of Motion ; further consideration bores reserved, with liberty to -milter party to apply, Defendants were further ordered to pay plaintiff's cwsts of' the ltiotion, 35 guineas, awd dislntrseWclits. At the hearing of the motion, Mr. M. Myers, vrirti J'fr. £L Cooper, <tppear» ed for plaintiff aiul.Sir. A. E. Skeltoft appeared for the defendant Oueliuiiga Snwmilfing Coinpaiiy).

IN DIVORCE;

UNOPPOSED PETITION GRANTED." A short, sitting of tlto Bivmw Court, was hold vC'Stei'iiav het'ofn His BottomIho Chief' Justice' (Sic lifiberfc Si out), The only cJwo' hflnrd was lltss petition of John A. Rmpjij- against I'loreiiw >f. Kinonv (respondent) all ( Hon* iird (co-rcspandont) for a «lecren of divorce on the ground of misconduct. .Mr. I'. Jnckson "a ppcarcci lot' «»._ petitioner, and no defence was offered. After evidence itt support of the n;vpli' cation had been hoard, His Hmkhugranted a decree. nisi, fa) be moved absolute after three rsantis.