MAGISTRATE’S COURT.

Gisborne Times, Volume XXV, Issue 2058, 19 April 1907, Page 4

MAGISTRATE’S COURT.

A DISPUTED CLAIM.

Thomas M. George proceeded against George Brocklebank, and claim, od £lB for damages by alleged misrepresentation of property bought by plaintiff last year. Mr. R. U. Burke, appeared • for plaintiff, and stated that after taking possession, lie was told that the boundary fence was over by two acres. Defendant then surveyed the land, and found it was so, and was willing to allow him to take the excess. and pay half the value of the

Mr. Stock admitted that the fence was not the boundary line, and there was no deficiency in the area. De-

fendant was not liable for shifting the fence, and plaintiff could not recover. All were under the impression that the fence was in the proper ground, and not until the survey was made, was it found to he in the

wrong position. Mr. Burke contended that tie

money was paid under a mistake and was therefore recoverable. Mr

Kent bought the land on the understanding that the fence was in the projier positioin. ft was a mistake of fact, and as plaintiff had to,make the amount good, he was entitled to

recover what he had expended. His Worship ruled that plaintiff could not recover so far as the dividing fence was’carried. For the damage portion of the claim, Mr. Burke Called plaintiff, who stated that he claimed £3 for 200 yards of wire netting, £1 for drainage pipes, and £2 for a horse feed box. Mr. Stock: The netting appeared to bo in good order. .He could not say if any of the pipes were below the surface or not. Mr. Stock said that £3 had been paid into Court, as compensation for the loss sustained for the 200 yards of netting. Liability for the pipes was denied; they had been dug up and sold, hut not. removed. He would show that the netting was valueless, and was sold for £l, which was more than its value. Mr. Brocklebank sold the fowl run and netting for 14s. The horse box consisted of only two planks, which could easily he replaced for os. Defendant, in his defence, said lie

put the netting round tlie orchard to keep pigs out; when sold it was broken. Witness supported his counsel’s statements. By Mr. Burke: He did not know ho had no right to the articles. He was with Mr. Kent for an hour and a half, and he forgot to tell him about it. G. Carrington, coach proprietor, said he bought the drainage pipes from defendant, and they were dug! up out of the ground, except two, be-I fore March 31. He paid 5s for*the |

horse box; this was a fair valuation. H. Moore said lie purchased the netting for £l. It was good in places, hut it had holes in other pluces. Three pounds would ho an excessive valuation. Sydney Jones, dairyman, of Te Hapava, said ho purchased the fowl run for 14s. That was a fair value. _ His Worship decided that plaintiff was entitled to recover a little more than the. amount paid into Court. Judgment was given for plaintiff for £4 and costs Gs, less £3 8s paid into Court.

SETTLERS’ DISPUTE. At the Magistrate’s Court yesterday, before Mr. W. A. Barton, S.M., Thomas George (Mr. J. W. Nolan) claimed from William Gentles (Mr. T. Alston Coleman) £BO and £SO damages or the rescission of a contract.

Mr. Nolan said that plaintiff had arrived about the end of February, and had answered an advertisement offering work by Mr. F. McLean. The position, however, was filled, and then plaintiff said that lie was looking for a property, and McLean introduced him to defendant, who had some property for sale at £2lO. Ten pounds deposit was paid, and the agreement was entered into. The cows were not in lull milk. Ho paid another deposit of £7O, his whole savings. He thought lie could manage, but the stock were short of the contract number, and the property was not as large as stated. Thomas George, plaintiff, deposed that lie went to McLean and Co. lor a job, hut it ryas taken, and ho met defendant, introduced by McLean. Gentles said lie had a leasehold farm that ho thought might suit witness,, and ho and MoLcan went to look at the place. There were eight cows, two of which were in milk and six dry, and there were about a dozon more with neighbors, and that if ho took the place they would bo brought hack. They were stated to he exceptionally good cows, ten of which were from Mr. Gray’s herd. A deposit of £lO was paid to Mr. McLean. At the end of a fortnight he only got 14 cows, and lie frequently asked for more, hut without success. None of tlio cows were in full milk. Witness again spoke to defendant, who said there were only 17 in the agreement, and that as witness had 15 he was only two short. For those latter he offered to pay £7 10s each. He said the matter was in his solicitor’s hands. The 20 cows were valued at £l6O. Witness was positive that he only received 14 cows.

By Mr. Coleman : Admitted taking the whole tiling as a going concern; each item was not bought at a particular price. If offered the remaining cows he would not accept them, as he had been “fooled” enough. He did not wish to get out of the bargain, because the deposit would fall due in August. Defendant did not urge the absence of the separator as a reason for delaying delivery of the cows. Mabel George, wife of plaintiff, corroborated her husband’s evidence.

James Georgo Lilley, architect, said ho was a commission agent in partnership with Mr. McLean. Plaintiff said that defendant told him that ten of the cows were bought from Mr. Gray, Riverside road. Witness was aware that defendant had bought ten from Mr. Gray, and that they were good. Plaintiff seemed to have acted on this information. For the defence Mr. Coleman contended that there was no ground for rescinding the contract, but plaintiff could claim damages which he might have sustained. Mr. Gentles did not say that any particular number were from Gray’s herd. Defendant believed that the full number of cows was 19 or 20, but found that there were 17, and then offered plaintiff £ls for the two. Plaintiff was willing to buy for defendant five cows of average quality or pay in cash.

Defendant, giving evidence, said that wlion showing plaintiff round the place he pointed out a black cow, which was one of the number from Mr. Gray. He also told plaintiff that lie was not certain as to liow many cows he had, but said about IS or 19 There were nine at the time plaintiff looked over the place, and when he took possession there were 15. Niue of these were in milk. On 14th March witness told plaintiff there wore two cows short and he would allow him £7 10s per head for them, and that amount could he deducted from tlio payment. Plaintiff said the money would suit him better than the cows, and witness understood that this offer was accept eel.

By Mr. Nolan: He told his counsel that there wore three cows short. He thought that ho had 19 cows at the time of the contract.

Mr. Coleman said that tlio question was resolved into the amount of damages for five cows. Rescission of contract could hardly be granted in this case, as defendant acted in perfect good faith. Ho quoted much authority-to show that there was no liability where the action took place in all sincerity, and that in order to succeed plaintiff must show actual fraud.

Mr. Nolan said that the witnesses’ statements wore contradicted, and it was strange that Mr. McLean, who could throw light on the matter, was not produced. The representations of defendant were misleading and constituted fraud. An innocent misrepresentation was sufficient to void a contract. Judgment was. reserved.

The- Manawatu Standard says:— Within the past few days Mr. H. J. Woodfiekl has had erected at his stables a machine, said to he the first of its kind in use in New Zealand. It is a combined horse-clipping and cleaning machine, necessary motive power for either clipping or grooming purposes being supplied by a 2-horse-power oil engine. The clipping apparatus is very much on the principle of sheep-shearing machines, and does the work just as quickly and effectually. For grooming purposes a hard rotary brush is used, and after witnessing the operation no room is left for doubt as to the cleansing properties of the machine. Horse clipping is being done daily at the stables, and the work of the machine has been watched by a lot of interested spectators.