SPECIFIC PERFORMANCE.

Stratford Evening Post, Volume XXXII, Issue 63, 9 March 1912, Page 5

SPECIFIC PERFORMANCE.

SUIT REGARDING A LAND EXCHANGE. A STRATFORD CASE. 1 The Supreme Court entered , upon the fourth day of its sessions yesterday at New Plymouth, before Mr. Justice Sim. Considerable time was taken up in the hearing of a civil dispute in winch Morris Carr Robison proceeded against Henry Sanson, junr., tor specific performance of agreement to exchange land. Mr. H. D. Bell, K- - and with him Mr Roy, appeared for the plaintiff, and Mr. C. 1 . Skenett, K.C., and with him Mr. R. Spence, for the defendant. • The parties are both farmers, ana according to counsel for the plaintiff, defendant had gone back on his agreement to exchange his farm of between 1500 andi 1600 acres, near otrauorcl, for part of an island lying right across from Tauranga, of an area of 8000 acres, owned by Robison. The land was a long, low-lying island, and m 1909 was purchased by a Mi. liank Bayly for 6s 6d per acre, and he put it down in grass and ploughed a. portion of it. Subsequently, m IJIO, Bayly sold the property to Robison for 12s 6d per acre. Hie lattei er fected more improvements, putting down about 200 acres m oats, and carrying out other work. He <• y erected a large, woolshed on the island, and partially stocked it with 1000 sheep. Prior to Bayly assuming possession, the island had never been farmed or utilised in anj «J > being overrun with wild horses. Robison last year put the land into the hands of an agent named Kemp to sell at £3 10s. Sanson 'became ini’ terested in the property, and as a result both parties and their respective agents made a two days’ inspection of it in October last. Sanson ex pressed satisfaction with the island, ' Without any attempt at bargainino', agreed to acquire it at the puce asued £3 10s. He returned to Stratford, and appeared to be quite satisfied with his bargain until other members of his family became distressed at the idea of trekking north, wnen he refused to complete, alleging as an excuse fraudulent rnisrepresentat.cn, and that many , parts ot the island were overrun with gorse. Complaini was also made by defendant that at the. end of the island there was a patch of 700 acres of sand, but as a matter of fact, alleged counsel, Sanson had, while the negotiations were in progress, ridden over the whole

ai The first witness called was Frank Bayly, at one time an owner of tins property. According to him, as a iesult of his experiments, the grass took much better than he expected. To Mr/'Skbr'rett: Hofcson bought at 12s 6d and paid nothing, the whole of the purchase, money remaining on mortgage./ When he looked at the grass eight wefek's prior to selling he was much disgusted with it. It had not taken well at all. When he came to sell the I'land, however, he was slightly better ’ plba'sed at the progress it pad made. The grasses that did appear to take'itell word of a poor quality. He denied having • said anything to Robison and Kemp whic.i would lead think jthgt, he had tested the tmi‘OT the island arid-that it would grow grass. At the present time he had a mortgage of £SOOO over the island. The native settlement might be described as first-class land and the of the island as waste. The native, not included *in the portion about which there was now a dispute), was, in'witness’ opinion, part of old New Zealand, while the rest of the land was sand.accumulation. The middle oi the islanp,, whs,! composed 6f ' valleys between jdjnes.' Hb was riot satisfied that' the ’ Ihiid' 'would grow oats or grass; was a very poor class of cqunti-yh' “ ' ' ''' ’, Mr. SkerrettWhat do you think was a fam. price /for, the land in October last yearv. ' ' , . , , , , Witness: "If I had to buy the land to-morrow'f would hot give as much as I sold if 12s 6d. Interesting EvidenceWitness "also"- recollected having been .approached by Robison with a view to his, waiving the improvement clause. The excuse offered by Robison was that' 1 the clause was likely to cause trouble in' his negotiations to sell. To this witness remarked: “Bui. surely you mentioned this important matter of an improvement clause of 400 acres to Sanson?” Robison’s reply was that the matter had been overlooked. Witness then asked Robison if he had “cracked up” the property in any way to Sanson or misled him in any way. Robison replied in the negative, and witness then said, “Well, Sanson must be a fool.” Robison rejoined, alleged witness, “He is a d fool.” On a subsequent occasion witness signed an agreement waiving, as he thought, the improvement clause for merely a period of twelve months. Greatly to his surprise he afterwards learneu that the document he had been persuaded to sign waived the necessity of the mortgagee to effect any improvements throughout the whole currency of the mortgage. Witness freely admitted, however, that it was “his own fault.” As regards, the swamp on the island, witness held that a great part of it was undrainable. The only improvements Robison effected amounted to £4OO. A Breezy Interlude. To Mr. Bell: He had refused to shake hands with Robison at New Plymouth recently. Mr. Bell; So when you say you are impartial, you are sufficiently impartial to shake hands with my client ? Are you a competent man of business? Witness: I flatter' myself as such. Mr. Bell: Do you tell the Court that when you read this you did not understand its meaning? Witness : I do! Mr. Bell; Do you tell the Court that Mr. Kemp brought that document to you and represented it to you as being something else than it was ? Witness: I can’t understand it. It is beyond me. Ido not say that Kemp misrepresented the position. - Mr. Bell: Do you think it conceivable that Kemp should have asked you, as he did, to go to your own solicitor to redd over the same agreement ?

Witness: I admit that I have been a big fool; that I have made a big blunder and thrown away £SOOO. Mr. Bell: Have you any other reason of ill-feeling to Robison ? Witness: Yes; I think a great injustice has been done to Mr. Sanson. "As Cod Hears Me!” Mr. Skerrett: When,and how did you know that that deed was a release of the improvement clause for all time? Witness: As God hears me, the day before yesterday. Mr. S informed me yesterday, and it quite took the wind out of my sails. Mr. Skerrett: Mr. Bell suggests that because of your grievance , you came here and concocted a story. Is that so ? *

Witness entered an emphatic de--111 Mr. Bell here interjected that he had merely accused witness of being absolutely incorrect. Misrepresentation Denied. Mr. K. Robison, plaintiff in the action, said that when ho had purchased the land from Bayly the latter had told him that he had taken a samp o of the soil to a seed merchant at Auckland, who had informed him it would grow any ordinary grass Since his occupation, witness said, he ha erected six miles of fencing on the land. It was perfectly extraordinary haw the grass had come on the cow grass was two feet high. Besides maize and potatoes, he put 100 acres down in oats, and they did fairly w ell. Personally, he was -more than satisfied with the land. He put it into Kemu’s hands tor sale in «Hm, 1911, asking £2 10s per acre, with £lO 000 cash. When Sanson came to look over the property, witness conducted him over tne land, zig-zagging over it. Whatever grass was on the land was all inspected by tne defendant at the time. The same applied to the sand-drift. While on the island witness mentioned the improvement clause to Sanson, whereby he would be hound to .sow 400 acres each year mi grass, and Bauson had givon him to understand that he had no objections on that score. At no time dm he ever try to press the property on Sanson. In fact, he told him that he did not care whether he bought the property or not. As regards the Kanri sum,' he remembered telling Sanson that he did not think the swamp was nearly dug out. After giving evidence on other points, witness went ■on to say that about three weeks after the inspection Sanson told him he .could not take the place; his wiu ~v as upset about it, and his son would not go there 1 . Witness, however,- refused to discuss the matter. Subsequently, at New' Plymouth, Sanson, in the presence of his solicitor, refused to complete,, stating that lie would not sign “his own ruination.’_ Witness then .saw Bayly with regard to a suspension of the improvemenl clause for a year, but had no recollection of any conversation with Bayly about having “cracked up” the island to Sanson. It was possible, although he did not think so, that he may have referred to Sanson as a fool, not, however, because he had purchased the property. Mr. Skerrett: Mr. Bayly was quue untrue when he said you offered him a monetary consideration ?—Yes. Mr. Skerrett: Do I understand that in October, 1910, you honestly did not •want to sell 1 the property at £3 10s P —Yes.

Mr. Skerrett: And was your partner in exactly the same frame of mind?—Yes, but he was a little more keen. Mr. Skerrett: And how long had you been of that opinion?—Two oi three months before I sold. 1 Profit of About £20,030. Mr, Skerrett: Then you asked defendant to pay, after you had occupied it for only eleven months, £25*130 for property for which you only paid £5470, or rather, only paid the commission? —That is so. Mr. Skerrett: Do you think it proper to J take advantage of that disparity? ' .... ‘ I Plaintiff, replied that lie was simply out ito make'a'good deal. He was taking anv ’ advantage. > ' » ’ l ' 1 Mr. Skerrett: That is to say, your property rose more than five times its value in eleven months?—No it did ■>ot. We simply proved it w r as wortn Mr. Skerrett: What was it worth: —The crops had done very w r ell, and the sheep had come on well. In fact, the more w r e saw' it the more we .liked it. . , ~ ' ~ Mr.‘. Skerrett interjected that witness appeared to be only too pleased to get 1 nd of it, all,the same. „ , Mr/ ! ’Skerrett: Did this man bargain with you?—Not for one moment. Mr, Skerrett : Was it a wise or prudent thing for him to do ? Plaintiff wmuld not admit that it was not. , , Mr., Skerrett: Will you deny that you told Mr. Bayly plaintiff was an bid fool? Plaintiff said he could not recollect whether he did or not, and, further cross-examined, averred he had spent £7OO in improvements. So far, all he nad got out of the property was the wool money on 600 odd sheep. The wool .was estimated to fetch 7)d per pound. He also admitted that two oi three months before it was sold the property was offered for sale at £/ iOs per acre. An advertisement appearing in the “Dominion” a month before it was sold, offering it at £2 10s, w'as inserted without his authority. He denied having told defendant that there were many thousands of pounds’ worth of kauri gum in the swamp on the land, and added that Sanson was in the room the whole time the agreement was being drawn up, but did not then express dissatisfaction. There were 1100 acres of sand on the island, but he did not consider it valueless. The plaintiff w r as in the witness-box for the i whole of the afternoon, the Court adjourning at 6 o’clock. The examination was resumed at 7.45 p.m., and continued for another two Hours, when an adjournment was made until this morning. A number of .witnesses are still to be examined, and the proceedings are likely to be prolonged. The Court was crowded at the evening sitting, much interest having been manifested in the proceedings throughout the whole hearing. At the outset Bayly was recalled. To Mr, Boll: He did not think Robison was in any way dishonourable. In his opinion, if Sanson took the land at Robison’s figure .he would be a ruined man. He did not think there would be another man in New Zealand who would pay the figure paid by Sanson. . According to Hie next witness (I. W. Kemp), Robison raised the price from £2 10s to £3 10s only when the question of exchange was arranged. When they visited the property Hodge (defendant’s agent) said he cons ; dered the swampy land worth anything up to £ls or £2O per acre. Witness also deposed to defendant having told him that his son would not go to the property, and asking him to sell it for him (defendant) at £3 an acre. To Mr. Skerrett: He recollected having heard plaintiff tell defendant prior to. the sale that there was an improvement clause in the mortgage requiring 400 acres to be put down in grass each year. Sanson’s reply was that in any case he would have to pul 1000 acres down each year to make the holding pay.—“ News.”