FULL COURT

Dominion, Volume 13, Issue 12, 9 October 1919, Page 6

FULL COURT

MOTION FOR NEW TRIAL FARM PROPERTIES EXCHANGED The Full Court was engaged yesterday iu hearing a motion for a new trial by tlio defendant Joseph Thorncs, of Auckland, land agent, injhe case of Thomas Brown and William Brown, of Opotiki, v. Thorncs. On the Bench were His Honour the Chief Justice (Sir Kobort Stout), Mr. Justice Sim, and Mr. Justice Hosking. Dr. H. D. Biiiiiforil appeared for Brown Bros., and Mr 0. l>. Skerrett, K.C., with him Mr. W. Vallauce, of Auckland, for Joseph Thornes. In. the Supremo Court (Hamilton Judicial District) Brown Bros, brought an action against Joseph Thornes to recover ,£SOOO, also a further sum of JSOfl. The plaintiffs were farmers at Opotiki, and on July 27, 1916, they employed dofondant to sell or exchange their farm. On September 13, IMG, tlio defendant alleged that they were induced to exchange' their farm of 306 acres at. Opotiki for 500 acres at Gordouton, near Hamilton, and it was further alleged that the plaintiffs were induced to make the exchange by the alleged false representations of Frank Cooper as servant of the defendant. The plaintiffs gave an equivalent of ,£l6 per acre for the Gordonton farm, and alleged that it was not worth moro than ,£6 per acre. The case was heard by His Honour Mr. Justce, Cooper and a jury, who tbturned a verdict in favour of the plaintiffs, awarding them JSISB damages for negligence, and acquitting Cooper of fraudulent misrepresentation. The defendant applied for a now trial on tlio grounds that the verdict of tho" jury was against the weight of evidence and that the-Oamages awarded by the jury were excessive. It was this motion that was heard by the Full Court. Mr. Skerrett, in opening, traversed the ovidence given in the lower Court and contended that to enable an action (o lie against his client, there must either have been a duty arising from contractual relationship between Cooper and Brown Bros., or-some fiduciary relationship, since fraud was omitted from the verdict of the jury. Tho representor waa not tho person with whoni, Brown Bros, contracted, and it was competent for tho latter to li'avo rescinded or abandoned the contract, haying full knowledge of tli3 facts, or having affirmed the contract to have brought a claim for damages against tho owner of the property (M'Donald). He submitted (1) that Coopsr was not the agent of the plaintiffs to describe to them , the property at Gordonton or to advise them as to the desirability of purchasing; (2) that there was no evidence of negligence ou the part of Cooper in making representations or giving advice to plaintiffs, and (3) there was no ovidence in support of. tho i6sue of inducement since when they had full knowledge of the facts Brown Bros, did not. rescind the contract. Mr. Skerrett contended that Cooper was known to Brown Bros, to be tlio agent of M'Donald, the owner of tlio 500 acres at Gordonton, to sell or exchange the property. He was not the agent of Brown Bros, to describe M'Donald's property; ho was tho agent of M'Donald to do so, and his description would bind M'Donnld and; did not bind the plrfintiffs. If tho description were false or tho representations were fraudulent, the plaintiffs would have a cause of action against M'Donald and the right of rescission before, conveyance. After conveyance the claim of ■ innocent misrepresentation would not hold. Cooper had no con-, cern as to the valuo of the Opotiki property; M'Donald could take it or leave it. and so with regard to the Gordonton property, Cooper had no concern with the price which Brown Bro3. were to pay or whether Brown Bros, purchased at all. It was no part of his duty to givo advice. The Chief Justice: The whole trouble arises because land agents are allowed to act for both the buyer and the seller. Mr. Skerrett: It is not the duty of a land agent to advise his principal as to Hie expediency of a transaction; the purchaser must make up his own mind on the matter. The Chief Justice: In order to make up his mind he asks his servant the agent for advice. Mr. Skerrett: Advice as to value should be given by a valuer; an agent for ealo has no duty to give advice on the value of property. Even if lie is acting for both buyer and seller he has no duty to advise either pauy. Fiducial relations are impossible as to advice where ■ it is recognised that the agent owes a contrary duty to the other party. The hearing of argument had not concluded when tho Court rose ynslcrday.