SUPREME COURT

Taranaki Daily News, Volume LIV, Issue 215, 9 March 1912, Page 9 (Supplement)

SUPREME COURT

FOURTH DAY'S SITTING. CLAIM FOR SPECIFIC PERFORMANCE The Supreme Court entered upon the fourth day of its sessions yesterday at New Plymouth before Mr. Justice Sim. Considerable tijne was taken up in the hearing of a civil dispute in which Morris Carr Robison proceeded against Henry Sanson, junr., for specific performance of agreement to exchange land. Mr. H, D. Bell, R.C., and with him Mr. Roy, appeared for the plaintiff, and Mr. C. P. Skerrett, K.C., and with him Mr. Spence, for the defendant. The parties are both farmers, and according to counsel for the plaintiff defendant had gone back on his agreement to exchange his farm of between 1500 and 1600 acres near Stratford for part' of an island lying right across from Tauranga, of an area of 8000 acres, owned by Robison. The land was a long lowlying island, and in 1909 was purchased by a Mr. Frank Bayly for Cs 0d per acre, and he put it down in grass and i ploughed a portion of it. Subsequently, in 1910, Bayly sold the property to ) Robison for 12s fid per acre. The latter j effected more improvements, putting down about 200 acres in oats, and carryI ing out other work. He also 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 any way, being over-run with wild ior«es. Robison last year/ put the land into the hands of an agent named Kemp to sell at £3 10s. Sanson became interested in I the property, and as a result both parties and their respective agents made a two days' inspection of it in October last. Sanson expressed satisfaction with the ' island, and without any attempt at bargaining agreed to acquire it at the price asked, £3 10s. He returned to Strat- ! ford and appeared to be quite satisfied [ with his bargain until other members of \ his family became distressed at the idea | of trekking north, when he refused to [ complete, alleging as an excuse fraudu- . lent misrepresentation and that many parts of the island were over-run with , gorse. Complaint was also made by defendant that at one 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 area.

The first witness called was Frank Bayly, at one time an owner of the property. According to him, as a result of his experiments the grass took much better than he expected.

To Mr. Skerrett: Robison bought at 12s and paid nothing, the whole of the purchase money remaining on mortgage. When he looked at the grass eight weeks prior to selling he was much disgusted with it. It had not taken well at all. When he came to sell the land; however, -he was sMghtly better pleased at the progress it had made. The grasses that did appear to take well were of a poor quality. He denied having said anything to Robison and Kemp which would lead them to think that he had tested the soil of the island and 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 rest of the island as waste. The native holding (which was 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 of the island was composed of valleys between sand dunes. He was not satisfied' that the land would grow oats or grass; in fact, it was a very poor class of country.

Mr. Skerrett: What do you think is a fair price for the land in' October last year?

Witness: If I had to buy the land tomorrow I would not give as much as I sold it for, l*2s 6d.

INTERESTING EVIDENCE. Witness also recollected having been approached by Robison .with a view to his waiving the improvement clause. The excuse offered by Robison was that the clause was likely to cause trouble in his negotiations to sell. To this witness remarked: "But 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 learned 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 improvement! 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 you read this you did not understand its meaning? Witness: I do!

Mr. Bell: Do you tell the Court hat Mr. Kemp brought that document to you arul. 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 J misrepresented the position. , Mr. Bell: Do you think it conceivable that Ivemp should have asked you, as he did, to go to your own solicitor to read over the same agreement? AVitness: 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 GOD 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 beforo 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 denial. Mr. Bell here interjected that he had merely accused witness of being absolutely incorrect. MISREPRESENTATION DENTED.

Mr. K. Robison, plaintiff in .the action. said that when he had purchased the land from Bayly the latter had told him that he had taken a sample 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 had erected six miles of fencing- on the land. It was perfectly cxtmovdjnayY , how the grass

feet high. Besides maize and potatoes, he put 150 acres down in oats, q,nd they did fairly well. Personally, he was more than satisfied with the land. He put it into Kemp's hands for sale in July, 1911, asking £2 10s per acre, with £IO,OOO cash. When Sanson came to look over the property, witness conducted him over the. land, zig-zagging over it. Whatever grass was on the land was all inspected by the 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 bound to bow 400 acres each year in grass, and Sanson had given him to understand that he had no objections on that score. At no time did 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 kauri gum, 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 wife was upset about it, and his son would not go there. AVitness, however, refused to discuss the matter. Subsequently, at New Plymouth, Sanson, in the presence of his solicitor, refused to complete, stating that he would not sign "his own ruination." Witness then saw Bayly with regard to a suspension of the improvement clause for a year, but had no recollection of any conversation with Bayly about haying "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 quite 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 the property at £3 10s? —Yes.

Mr. Skerrett: And was your partner in exactly the same frame of mind?— Yes, hut he was a little more keen. Mr. Skerrett: And how long had you been of that opinion?— Two or three months before I sold. PROFIT OF ABOUT £-20,000.

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 take advantage of that disparity? Plaintiff replied that he was simply out to, make a good deal. He was taking any advantage. ; Mr. Skerrett: That is to say, your property rose more than five times its value in eleven months? —No it did not. We simply proved it was worth it.

Mr. Skerrett: What was it worth?— The crops had done very well, and the sheep had come on very well. In fact, the more we saw it the more we likfd ti. Mr. Skerrett interjected that witness appeared to be only too pleased to get rid 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 would not admit that it was not.

Mr. Skerrett: Will you de;ny that''you told Mr. Bayly plaintiff was an old fool.

plaintiff said he not recollect whether he did <Jr not, and, further cross-examined, averred he nad spent £7OO in improvements. So far, all Ke had got out of the property was the wool money ,on 600 odd sheep. The wool was estimated to fetch per lb. He also admitted that two or three months before it was sold the property was offered for sale at £2 10s per acre. An advertisement appearing in the Dominion a month before it was sold, offering it at £2 10s, was 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 was in the witness-box for the 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 mprning. A number of witnesses are still to be examined, and the proceedings afe 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. Bell: He did not think Robison was in any way dishonorable. 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 the next witness (F. 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 considered the swampy land worth anything up to £ls or £2O per acre. Witnes 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 put 1000 acres down each year to make the holding pay.