APPEAL COURT

Dominion, Volume 12, Issue 244, 9 July 1919, Page 2

APPEAL COURT

RESERVED JUDGMENTS

TRANSACTION IN SHEEP

Judgment was given in the Appeal Court yesterday tifterncon in a case removed from-the Sum-cine Court, Christc'hureh, the.parties being Charles F. Murray, of Whuranui, Blenheim, sheepfarmer, plaintiff, and William John Hopkins, of Christchurcli, land agent, defendant.

On the kneh wore the Chief Justice (Sir. Robert' Stout), Mr. Justice Cooper, Mr. Justico iSim, and Mr. Justice Herdman.

Tho statement, of claim was to the of-1 feet that on January 11, 1919, Messrs. Pyno and Co., carrying ..on busineas ab Christchurcli and Knikoitr,a, contracted in writing with phiiiitiif, '\s agent for am! on behalf of the defendant, for the purchase from the plaintiff of the latter's annual draft of owes, a'bout 1300 in number, at 325. 6d. per head,' delivery.to be given and taken on February 2S, 1919; subject to 5 per cent, rejection. The actual number of tho draft was 1261 owes, and in accordance with tho contract defendant was informed, but he refused to take delivery, and Wμ then notified that the sheep wero at his risk. Plaintilf then had the sheep driven lo . Christchurch, where they wero sold by auction on March IG, 1919, tho net amount realised being .£ISOB 13s. 3d. Plaintiff incurred expenses in grazing and driving, and claimed dESG2 18s. 3d., being the (lit fcrenee betwoen the contract price and tho price realjsed at auction, plus grazing and driving, expenses. The defendant denied that ho had contracted to buy the eheep. or that Pyno and Co., or any other firm, wero authorised as agonts or otherwise to purchase sheep for him, cither from plaintiff or any other person. And as a further defence, defendant, claimed that if there was any agreement for tho purchase of sheep by defendant from 'plaintiff as alleged, such agreement did not comply with tho provisions of the Statute of Frauds, nor with thfc Sale of Gihds Act, IMS, section G, and defendant pleaded such statutes os, a defence.

Tho case was heard by Mr. Justice Herdmati and a jury, and the findings of the jury were that Hopkine did authorise Pyjio and Co., Kaikonrn, to enter into a contract on his behalf for.. the purchase'of the sheep from plaintiff,'and that tho sheep' were .purchased from Iho plaintiff by. Pyne and Co. in pursuance of tho ailithority given to them by Hopkins, and awarded the plaintiff dSSG" l&s. 3d., tho full amount of'the damages claimed.

Counsel for defendant moved for a new trial, .on the ground; that. His Honour rejected evidence which ought to Jiavo been admitted, also that the Judge misdirected the jury on material points of law. .

The Court.in a lengthy judgment held that defendant's motion for o. new trial must be dismissed* and judgment entered for the plaintiff in the Supremo Court for .£562 18s. 3d., with cost?, and plain, tiff was allowed costs on tho highest scale on the argument in fho Appeal Court;

At tho hearing Mr. C. P. Skerrett, ICC, with him Mr. F. Johnston, of Cliristcluirch, appeared for the plaintiff, a.nd Mr. H. J. Beswick, of Ghristchurch, for the defendant.

SALE OF A TROTTER ALLEGED MISREPRESENTATION. Judgment was* also given in tho case of EHza'beth Ci'aw, wife of George Craw, of Linton, farmer, appellant, and Beii Jarden, of Christcliurch, trotting horse trainer, respondent. Tho statement of claim.in,the Lower Court set out that the .defendant was tho owner of a trotting filly named Marie Tempest. On January 1, 1919, it was alleged that the defendant fraudulently represented to the plaintiff that tho filly had been entered, nnd was eligible k> start in May, 1919, in the New Brighton Trottinjr Derby, run under tho auspicoi of : the New Brighton Trotting Club. Relying on these representations, plaintiff agreed to purchase the filly for £IQQ, and paid oCiOO deposit and gave postdated cheques for.the balance. The plaintiff alleged that the filly w«s not eligible for. the Trotting Derby, and had never been entered for such race. The plaintiff declared that she would not.havo agreed to purchase the filly but for tho representation made by tho defendant, and on discovering that the representation wa! not trms she on January 30 last elected to rescind the contract, and notified tho defendant in writing. Plaintiff claimed rescission of the contract, ■ the return of the deposit of .£IOO, with iuetresfc at 8 per cent., tho return of the post-dated cheques, and ,£SO damages, and alternately ,£3OO damages.' The defendant denied that he fraudulently misrepresented that the fiilv had .been entered for, and wn.s eligible to start for,' the New Brighton Derby, and denied that the plaintiff relied uiM)n the ?aid representation or any representation, in purchasing the ■ filly. He further denied that the plaintiff had elected to rescind the contract or that tho contract had been rescinded. He further contended that if the alleged representation was made the plaintiff was not induced by the.representation' to purchase the filly, that the representation was not material, and that plaintiff purchased the filly upon her own judgment and after due consideration. Defendant further declared that he sold the • filly to the plaintiff for £M, payable iIOO in cash and .£IOO at the expiration of three, six, and nine months; and in addition to the .£4OO plaintiff agreed to pay a further .£IOO out of tho prize money of thopfirst race won by the filly, and tho contract was duly completed nnd delivery made. Defendant had, eveV since the date. of the sale, trained Iho filly under plaintiff's instructions, and nt her expense, and had entoi'ed the filly for various races in the name of the plaintiff.

lii giving judgment ornily, His Honour Mr. Justice Herdman said the main cause of action was u charge of frauxl against the defendant. A charge of fraud must be supported by evidence of the most convincing character. Ho was not satisfied that the evidence showed that Jarrfen deliberately attempted to defram! tho plaintiff. Ho did not consider that the plaintiff had discharged the onus placed, upon her shoulders. Judgment was given tor the defendant, with costs on tho middle scale, as on an action for £100. Tho appeal was against this decision, on the grounds that it was wrong in fact and at law. . • ■•

The Court, after carefully weighing all the evidence, was of the. opinion that the plaintiff had discharged the onus upon lier, and Iho Court was satisfied that tho representation alleged was actually made. Tho appeal was allowed, and judgment entered in the Supreme Court for plaintiff for ,£IOO, without interest, And the return of tho three cheques for .£IOO each given to tho defendant, with costs in the Court below on a claim for .MOO and disbursements, nnd tlio appellant, allowed the costs of the appeal. "It is to ho regretted," said tho Court, "that parlies making important contracts of this description shoii.M not have taken the precaution of having; hod a proper contract drawn up in writing." At tho hearing Mr. C. P. Skwrett, K.C., with him Mr. W. L. Filzherbort, of Fnlmerston North, appeared for the Appellant, nnd-Mr.- w. J. Gresaon, of Christchurch, for the respondent. • /