AN EXCHANGE OF LAND

Dominion, Volume 13, Issue 14, 11 October 1919, Page 9

AN EXCHANGE OF LAND

CASE BEFORE THE FULL COURT

MOTION FOR NEW TRIAL

The hearing of a motion for a new Irial by Joseph Thorites, land agent, Aueiilami, in the case of Thomas Brown and William Brown, farmers, of Opotifci v. Joseph Thornes, was concluded before the Pull Court yostcrday. On tho bench were His Honour the Chief Justice (Sir Robert Stout), Mr. Justice Sim. and Mr. Justieo Hoslnng, Dr. 11. D. Bamford. of Auckland, appeared for Brown Bros., and Mr. C. P. Skerrett, Jt.C., with liiin Mr. W. Vallance, of Auckland, for Joseph Thornes. The plaintiffs, Brown Bros., exchanged their farm of 300 acres at Ouotiki for 500 acres at Gordonton. near Hamilton, the property of ono M'Donald, tho excliange being effected through Frank CoopoT, a servant of Joseph Thornes. Brown Bros, brought an action in tho Supreme Court against Thornes to recover ;CSOOO, also a further sum of ,£BOO. on the; ground that they were induced to enter into tho exchange by the alleged false representations of Cooper, m the alternative by the negligence of Cooper. The jury awarded the plaintiff i2IBB damages on the ground of negligence, and acquitted Cooper of fraudulent misrepresentation. Tho defendant applied for a now trial oil the ground that the verdict of tho jury was against tho weight of evidence, and that tho damages awarded were excessive. On the previous day towards the close of his argument Mr. Skerrett asked leave to amend the motion to mora for judgment to ho entered for defendant, or for a nonsuit

Yesterday Mr. Bamford restated his points as follow: (1) That tho contrnct with M'Donald was not voidable because tho representation was made by Cooper as Brown's agent; (2) that tho damages therefore occurred when the contract wna made; (3) that if the contract is voidablo it does not lio with defendant now to say that tho plaintiffs should have, rescinded on tho ground of his own misstatements; (4) tho defendant still denies misrepresentation and so does M'Donald; (5) in any caso the knowledge that plaintiffs claimed that tlioy had relied upon tho defendant, the defendant insisted upon their completing, and accepted tho commission; (C) that on the completion of the conveyance the right, if any, to rescind had gone, and was gone; (7) and any subsequent opportunities of getting rid of.the property aro immaterial; (8) but tho plaintiffs did seok tho opportunity offered by Thornes, namely, the exchange with ono Hargreavos. On tho question of procedure Dr. Bam; ford contended that the application to amend the motion could not be allowed, the Court having no jurisdiction as no leave was reserved under Itnlo 28G, and secondly, the amendment now sought really amounted to a new motion—a motion to enter judgment for tho defendont: even if tho motion was right under Rule 2SG it was too late under Rule 257, as the motion was made for the first timo tho previous day. After hearing Mr. Skerrett in reply the Court reserved decision.