AN OKAU LAND CASE.

Taranaki Daily News, Volume LIV, Issue 53, 24 August 1911, Page 3

AN OKAU LAND CASE.

GREENWOOD v. SCHMIDT AND BELLBI-IAW. Mr. Justice Edwards has given his reserved judgment in the case of Willie Greenwood v. William Schmidt and William Bellshaw,'which was heard at the last New Plymouth sessions of the Supreme Court, ft was a claim for £271 compensation for deficiency of grassed lands in a sale of a farm at Okau. Mr. Spence appeared for plaintiff and Mr. Quilliam for defendnt. The case was first before the Court in September last, but the plaintiff was non-suited without costs, as there was not sufficient evidence before the Court as to the area of grassed land included in the contract, for sale. At the second hearing' plaintiff brought forward the evidence of Mr. E. W. M. Lysons, a licensed surveyor. This evidence enabled his Honor to hold that there was "a deficiency of 55 acres out of 100 acres of grassed land, if the representation admitted by the defendants is accepted, or 75 acres if the plaintiff's evidence us to the actual misrepresentation is believed." His Honor, then proceeded to discuss legal points raised. In his opinion the claim must !be treated as in a suit for specific performance by the defendants, the vendors. His reason for arriving at this conclusion was that the plaintiff was then in possession of the land, the subject of the contract, but the purchase money was unpaid. After discussing the case cited .by counsel, his Honor foun' that there was very clear authority f nr at least the proposition that when' the purchaser had- U*e» let into possession I "ufraer the contract, and the circumstances had so far changed as to make rescision inapplicable or an inadequate remedv, the purchaser might have cdm-' pensation in respect of misrepresentations not fraudulent. That was the.we here. "Further, the evidence adduced in this action," continued his Honor, "and another significant fact to which I shall present refer, have put an entirely new complexion upon the matter, and have satisfied me in this action that the defendants either knew, when they made the representations which are the 'lasis of the, plaintiff's claim, that they were untrue, or that they made those representations reckleiUfly" and witheut caring whether they tvere true or not. That these representations were made with a view to induing, and that they did induce the control, is, tff course, unquestionable. Upon this head I acquitted the defendants in the former action between the parties, 'because I found it impossible! to believe, upon the evidence then before me, that the area of' grassed land was only 49 acres, as then.alleged by the plaintiff, instead of, 100 acres, as, according to ■■' their admission, which I then accepted, had been represented by'the defendants. If I had been satisfied as to that fact I should have found it impossible to believe that I the defendants, who themselves did the work, Could have honestly believed that the area of grassed land was as they admit' that they represented. Because I was not at all satisfied on the result of the former action that there was any substantial deficiency in the area of the grassed land, I suggested in the interim judgment which I gave in that action that the. parties should agree to have an accurate survey of the grassed land made by a licensed surveyor, the report of such surveyor to the Court to be treated as evidence in the actjon. The defendants refused to agree t« this course, which was suggested, with a view to saving useless expense, and I thereupon non-suited the plaintiff without costs. It now appears that the area of crossed land was actually only 45 acres, S5 acres less than 100 acres, which in the former action I believed to be. the amount represented, and 75 acres less than the amount deposed to by the plaintiff, supported by the evidence of Mr. Clarke, the defendants' agent in the sale. to the plaintiff, and by the particulars given to Mr. Clarke by the defendant Bellshaw, written down iby Mr. Clarke and signed by Bellshaw. The difference between the actual area of grassed land is so great, and the defendants' Tefusal to act upon the suggestion which I made in the former trial so unreasonable that I can come to no other conclusion than that they were quite well aware that the area of grassed jland was very much less than they had represented; and that they refused to [agree to a survey because they knew that the deficiency would ibe thereby ex!posed.. I regret that I.am compelled to withdraw the favorable opinion which I formed as to the value of the defendants' testimony in the former action, and to give credit to the plaintiff's evidence as to the extent of the misrepresentation. I I find therefore as facts that the representation ' was that the area of grassed land was 120 acres, that the actual area' l/was 45 acres, and that the defendants knew when they made the representation that the area was very milch less than they represented. The finding'entitled the plaintiff to damages in an action at common law." His Honor also found that the plaintiff was therefore entitled to recover such sum as would place him in the same position as if the defendants' representation had been true. Whether it was called compensation or damages was immaterial. His Honor estimated this sum, from the evidence •before liim, at £lB7 10s. Judgment was accordingly for plaintiff for £lB7 10s, and, costs according to scale.