APPEAL COURT

Dominion, Volume 12, Issue 235, 28 June 1919, Page 9

APPEAL COURT

SALE OF A TROTTER

ALLEGATION OF FRAUD

The Appeal Court was engaged yesterday in hearing an appeal from the decision of Mr. Justice Herdman given in the Supreme Court, Christchurch, in respect to an allegation of misrepresentation over the sale of a trotting filly.

On the bench wero His Honour the Chief Justice (Sir Robert Stout), Mr vJustice Cooper, and Mr. Justice Sim. The-case was that of Elizabeth Craw, wife of George Craw, of : Linton, farmer, appellant, and Ben Jardea, of Christchurch, trotting horso ' respondent.

Mr. C. P. Skerrett, Iv.C., with him Mr. W. L. Fitzherbert, of PaJmeraton North, appeared for the appellant, and M. J. Gresson, of Christchurch, for the respondent. \

The statement of claim' in tho lower Court set out that tl;o defendant was\ the owner of a trotting iilly named Mario Tempest. On January 1, 1919, it was alleged that the defendant fraudulently represented to tho plaintiff that the filly had been entered, and was eligible to start in 'llay, 1919, in tho New Brighton Trotting Derby, run under the auspices of tho New Brighton Trotting Club. Relying on these representations, plaintiff agreed to purchase the iilly for ,£4OO, and paid iIOO deposit and gave, postdated cheques for the balance. The plaintiff alleged that the.filly was not eligible for the Trotting Derby, and had never' been entered for such race. The plaintiff declared that she would not have agreed to purchase the filly but for the representation inside by the defendant, and on discovering that the representation was not true she on January 30 last elected to rescind the contract, and notified the defendant in writing. ' Plaintiff claimed rescission of tho contract, the return of tho deposit of ,£IOO, with interest at 8 per cent., the return of the post-dated. cheques, and .£SO damages, and alter-' nalely ,£3OO damages. Tho defendant denied that he fraudulently misrepresented that the filly had been entered for, and > was eligible to start for, the New Brighton Trotting T)erb.y, and denied that the plaintiff relied upon the said representation or' any representation in purchasing the filly. He further denied that the plaintiff had elected to rescind the contract or that the contract had been rescinded. Ho further contended that if the alleged representation was made the plaintiff was not induced by the representation to purchase the filly, that the representation won not material, and that plaintiff purchased the filly upon her own judgmnet and after due consideration. Defendant further declared that he sold .tho fillv lo (lie pJni'ftiff for ,£4OO. pfiy.ibln .£lon i'i cash and .£IOO ot the expiration of three, six, and nine months, and in addition to (he .£IOO plaintiff agreed to pay a further .£IOO out of the prize money of the first race won by the filly, and the contract was duly completed a.nd delivery made. Defendant had, ever srnco the date of Hie sale, trained the filly under plaintiff's instructions, and at tier expense, and had entered the filly for various races in tho namo of the plaintiff. Tn giving imlsment orally, His Honour Mr. Justice Herdman said the main cause of action was a chargo of fraud against the defendant. A oharge of fraud must

be supported by evidence of the most convincing character. He was not satisfied that the evidence showed that Jarden deliberately attempted to defraud tho piainiit. He did not consider that the plaintiff had disoharged the onus placed on hor Judgment was given for tho defendant", with costs 011 the middle scale, as on an action for .£4OO. The appeal was against this decision, on the grounds that it was wrong 1 in fact and at lair. The hearing occupied nearly tiie whole day, and at the conclusion the' Court reserved its decisibn,..