A LAND TRANSACTION.

Taranaki Daily News, Volume LIII, Issue 163, 19 October 1910, Page 7

A LAND TRANSACTION.

GREENWOOD V. SCHMIDT AND BELSHAW.

His Honor Mr. Justice Edwards has delivered an interim judgment in the case of Willie Greenwood v. "William Schmidt and William Belshaw, heard at last session of the Supreme Court here. Mr. R. Spence appeared for the plaintiff, and Mr. J. H. Quilliam for the defendants. The judgment is as follows :

The claim made by the statement of claim in this action is for the recovery of damages upon either of two grounds: (a) that, upon a sale by defendants to the plaintiff of their interests under an occupation license with a right of purchase of certain lands under the Land Act, the defendants warranted to the plaintiff that the area of such land cleared of forest and in grass was 122 acres, whereas in fact sucn area was 49 acres only ;, (1>) that the defendants fraudulently represented the area of grassed land to be 122 acres, whereas it was only 49 acres. After the defendants' case had closed, the statement of claim was by consent of counsel for the defendants amended so as to add a claim for compensation, as if compensation were claimed in an action fo) specific performance of the agreement of sale.

The purchase was completed .after the plaintiff had become aware of the mattei of which he complains; hut upon completion it was expressly agreed that the transfer was not to prejudice the plaintiff's right (if any) to claim compensation for the alleged deficiency 01 grassed lands, and that he should be at liberty to sue the defendants to re cover such compensation, after the completion of the transfer of the property. It is not in dispute that the defendants represented to the plaintiff that the area of grassed land Iwas. about 100 acres. Whether or not, it was shown that this statement was inaccurate, 1 shall presently have to consider. It is, however, proper to say at once, and emphatically, that, assuming this state--1 ment to have been inaccurate, there is, in my opinion, no justification whatever fnr the charge of fraud made against, the defendants. There is no pretence' ' that, the defendants ever represented to the plaintiff that the area of grassed lands had ever been measured, or accurately ascertained. The most that can be said is that they represented that the

area was 100 acres, and gave their reasons for their belief, which, in my opinion, was an honest belief. The defendants' estimate of the area is supported by the estimates of no less than three Crown Lands Hangers, made at different times in the course of their ordinary duties. The plaintiff himself says that he cannot tell the difference between 49 acres of grassed land and 100 acres merely by looking at it. He should have [said 120 acres, for this, according to his evidence (which, however, I do not accept on this point) was the representation made by the defendants. He went into occupation of the land on June 1, but, according to his own evidence, he did not even mention the alleged deficiency in the area of the grassed land to the defendants until July 15, ana then merely in an expression of opinion, and casually upon meeting the defendant Schmidt upon the road. There is nothing to show that he was not jusias competent to estimate the area as were the defendants. It is, therefore, clear that the charge of fraud ought never to have been made against the defendants. Most certainly it ought not to have been persisted in after the close of the defendants' case. I have now to consider the other ground of action. It is. unnecessary to determine whether or not evidence is admissible of the warranty alleged in the statement of claim, within the authorities (quoted), as I am satisfied upon the evidence thai no such warrant was ever given or contemplated by the parties. What passed between them upon this point was, in my opinion, no more than an innocent representation. I am satisfied that ii the defendants had been asked for a warranty they would have refused to give it, and that the plaintiff did noi understand that they were giving it. Such a representation does not give ground for an action. (Green v. Symons, 13 T.L.R., 301). Upon his action, as it was framed, the plaintiff must therefore have failed, but I have yet to consider whether or not the plaintiff can succeed in his claim for compensation, as in an action for specific performance of the contract for sale, under the special agreement made at the time of the completion of the sale, and the amendment of the statement of claim, to which the defendants' counsel consented at the trial. As to this, the defendant's, representation was, as I have said, made innocently. Nevertheless, the subject of the contract for sale was, if the area of grassed land was substantially less than the defendants had represented, a matter which it appears is one which is the subject of compensation, although the misdirection does not appear in the contract of sale. The evidence as to the actual area of grassed land is. however, exceedingly unsatisfactory. The only evidence upon which the plaintiff has to rely in this respect is that of Mr. Horner, a surveyor's assistant, who has made a compass survey, which may or may not be approximately accurate. On the part of the defendants I have the evidence of Mr. Twiss, the Crown Lands Banger, who estimates the area as being 100 acres, or thereabouts. Mr. Twiss was formerly & draughtsman in the Survey Office at Wellington, and is a gentleman used to estimating areas by the eye. His estimate of the area, moreover, is confirmed by estimates separately made by two previous Crown lands rangers.

To enable me to arrive at a satisfactory conclusion, further evidence ought, therefore, to be obtained. In the circumstances I shall not pronounce judg-' ment at present. The parties will have the opportunity of agreeing to have a proper and accurate survey, by a licensed surveyor agreed to by them, made of the grassed land at the time when the plaintiff took possession of the property, the report of such surveyor to the Court to he treated as evidence in the action. If the parties cannot agree to this course within fourteen days, or such further time as they may mutually agree upon, application must be made by the solicitor for the parties, or either of them, to me, through the Registrar, to deliver judgment upon the material now before me."