COURT OF APPEAL

Hokitika Guardian, 24 April 1925, Page 4

COURT OF APPEAL

SITTING IN AY ELLINGTON.

WELLINGTON, April 22

The Court of Appeal was engaged in hearing an appeal against the judgment of Mr Justice Sim. ’The appellants are Thomas Vernon Wilkinson, and Frederick .lohnston Alexander, of Tintaru. retired farmers, and the respondent Robert Hugh ISisxet, of Avondale. farmer. By an agreement- dated May 7, 1919. respondent- agreed to sell to the appellants a sheep farm, known as “Avondale,” situated near Nightcaps, in Southland, for £13.200 10s, o' which £2009 was paid in cash, and the balance was to he paid on May 1. 192-1. The appellant. AVilkinson. took possession of the farm, and worked it in partnership until .July, 1923. when Alexander retired from the partnership, AVilkinson working on his own account from that date.

The commencement of proceedings was a writ to recover the half-yearly instalment of interest amounting to £‘3l6 19s 3d, due cn May 1, 1924. On July 1. 1924. appellants gave notice to respondent that they had rescinded the contract for ihe purdicse of the farm, cn the ground of misrepresentation. and to claim for interest. They filed a counter-claim, in which they alleged that they were induced to enter into the contract by false and fraudulont. representation on the part of re-

spondcnt, and they claimed to have the contract rescinded, or. in the alternative, to recover £SOOO damages. The representation alleged to have been made was that the farm had a carrying capacity of 2000 she(?p, whereas, according to the appellants, in April. 1919, the capacity did not exceed 1500. It was stated that, for this reason, the land was not worth more than £BOOO. The Judge held that- what was said by the respondent, to bring about the contract, was simply an expression of opinion. -and that it was still his honest opinion that the carrying capacity of the land, was 2000 sheep, and owing the erratic methods adopted by the appellant- Wilkinson it was impossible to ascertain what was the precise carrying capacity of the land. The Judge also held that the appellants had hot proved that the falrm. properly managed, was not capable of carrying

2000 sheep, and respondent was entitled to judgment cm the counter-claim ns well as for the interest due. Judgment was accordingly entered for £.'!l(i IPs .'sd. cud for £-'P!O 10s, amount of costs. The appellants now contend that

the whole judgment is erroneous, in point of fact and law.