CLAIM SUCCEEDS

Gisborne Herald, Volume LXVI, Issue 20080, 28 October 1939, Page 3

CLAIM SUCCEEDS

RETURN OF DEPOSIT

£IOO TO BE REFUNDED

FARM PROPERTY DEAL

(Special to the TTernhl.) WAIROA, this da

Arising out of his cancellation of i'.e purchase of a farm properly from Samuel Hagen, of Wairoa. James Kcrbison, a farmer, of Tulira, claimed a refund of his purchase deposit before Mr. .1. H. Lux ford. S.M.. in the Magistrate’s Court in Wairoa yesterday.

Hcrbison, who was represented by lr Tl. R. Bannister. Hastings, based

Ills claim on what lie alleged were brenchi's of certain terms of the last of three purchase agreements entered Into. Briefly, the basis of claim was dial Hagen bad tailed to carry out certain agreed actions and in doing so, had misrepresented the contract. The plaintiff alleged that misrepresentation had arisen when pigs owned by Hagen and kept on his farm had not been tested for tuberculosis before a date specified in the final agreement. In addition it was alleged that the defendant had removed certain chattels from the farm, Ilerbison claiming that these should have been included in the articles covered by the sale. The articles complained of were a motor-driven electric pump and a tin slic'd which housed the pumping gear. Mr. L. T. Barnard, Gisborne, appeared for Ilagen, Test of Slock George Fredrick Hudson, stock inspector at Wairoa, said that in May last he was requested to make a test of Hagen’s stock. The test was carried out on June ti. When the test took place on the first occasion two cows were left over and were tested later before June 30. Pigs on the farm were not tested for tuberculosis, the witness stressing the difficulty of •obtaining conclusive tests from pigs. Hagen was informed of this fact on the day the test of the cows was made. It was possible that pigs could be affected by tuberlicin affected cows, either through the milk or the affected sputem. Answering Mr. Burnnrd, Hie witness said that tuberculosis tests were finished only when the second test was completed. Herbison had been present when the test was being carried out.

The plaintiff, in evidence, said that he first inspected Hagen’s farm about March of this year, with a view lo purchasing it. Tire farm was a wet one and Hagen had told him it was liable :c flood, although the water would no. he very long Hagen pointed out a Da shed which housed a puma lor clearing the water off the land .following floods. He agreed to buy the farm and the stock and an agreement was entered into. Later, agreements each for the farm and the stock were entered into. Witness found that some of the stock was infected with tuberculosis ana a further agreement was entered into. As a result of something Hagen told him. he checked up on the dates of tuberculosis tests and he. .ound a discrepancy over the dates oi the test.

Further Agreement Made

He was unable to obtain any salisfaciion following a conierenee hoLi with Hagen and Mr. Robinson . .nd said no would have nothing to do with the project unless a!! the stock was irnteci lor tuberculosis. Following a. furthei conference, a third agreement was entered into. It was agreed that Hie stock be tested, witness attaching the major importance to the testing ol' the pigs, which had not been tested. He was given to believe that if there wore any cows infected with tuberculosis lie would receive £3O over and above the Government allowance. The contract was read to all parties, witness being satisfied with the contract as it stood as he would know what lie was taking on. He wished to know before taking possession ol the farm the task he was taking up. He was notified that the cows were to be tested and witness was present when the tests wore carried out. He knew the pigs had not been tested and Hagen told him that the inspector would not test them. It was suggested •,o him that he should sell the pigs. Later, when lie visited the property lie saw Hagen carrying a pump on the sledge and the next day he saw i sledge carrying iron and timber, Hagen Idling him that it was the shed which housed the pump and the motor He asked Hagen not to sell the pump and the shed as it would make the land difficult to clear after Hoods. Removal of Pump Answering Mr. Burnnrd, witness said that the pump and shed did not appear in any of the agreements. Witness emphatically claimed that the pump should be included, in the sale. He said that before removing -the purno Hagen had offered to sell ■ I to him for £4O, but the witness claimed he had bought the pump with the farm. He attached more importance to the testing of the nigs than to having the cows tested, as lie was at raid of lie pigs bearing tuberculosis. , Evidence was given also bv Robert Hcrbison, who said that he saw the pump being carted off the place and that the shed had been pulled down and carried to the house. Alan Daniel Lain?', a Government veterinary officer, said that he had declined to test the pigs on Hagens farm because the testing was thought to be unsatisfactory. He was definitely instructed that he was not to carry out tests on nigs. Pigs kept ut H ,c kept their infection in the sty and had a short life. Pigs in the sties could not affect cows on the farm. As far as he knew the pigs on.Hagens farm were kept in sties. This concluded the evidence and judgment was entered in lavour of the plaintiff' in the sum of £IOO.