SALE OF A FARM.

Taranaki Daily News, 18 August 1922, Page 3

SALE OF A FARM.

CLAIM FOR DAMAGES. CASE IN SUPREME COURT. THE JURY DISAGREES. The hearing of the claim of Leslie Samuel Dutton for £BOO damages from Henry Herbert Upson for alleged misrepresentation in the sale of a farm was continued m the Supreme Court at New Plymouth yesterday, when evidence for the defence was heard. The defence was a denial that the representations had been made; that if they were made, they had not influenced the plaintiff; that they were immaterial; and that there had been no fraudulent intent. Henry Herbert Upson, farmer, Hamilton, saia he had had two farms prior to the place he had sold to Dutton. He had bought the place from Hollins for £lO, and had taken over his liability to paint the house and plough a certain number of acres per annum. There was a purchasing clause in the lease at £3O per acre. The farm was in fair order when he took it over, and he intended to run dry stock on it, because up tp that time he had never dairied in Taranaki. During the two years he was on the place he painted the house, put in some windows, and effected other repairs and improvements to the building, while outside he laid down six acres in permanent grass and four acres in rye, grass seed and oats. He also ploughed a 54 acre paddock which had not been previously touched, and this he put in turnips. He put in a number of six-wire fences and laid a lot of manure, the cost of all these improvements to the house and farm costing him £207, the total expense on the place, including the cost and commission and labor not already charged for being £270. In his first year he carried five milking cows, 14 head of big cattle, five yearlings, and two horses, which he carried right through the year. Up to November in his second year he carried 23 head of big cattle, six milking cows, five calves and three horses. After that date he put 20 heart of big cattle out to graze, replacing them on February 2 with 52 sheep, which remained on the place until he sold it, on which date there were the sheep, the milking cows, the calves, and the two horses. The estimated from this that the place would carry 16 to 18 dairy cows, provided winter feed was provided.

CARRYING CAPACITY. Continuing, vzitness related the visit of plaintiff, Langridge, and Jellyman to the farm, and denied that he told them that the place carried 17 cows and two horses, or that he milked that number of cows or that Hollins had done so before him. He had told Dutton, when asked, that he thought the place should carry 16 to 18 cows, and he had not said that he had dairied on the place. Dutton would see the, provision he had made for winter feed. He still estimated that the place would carry that number of cows, and the authorities he had given the agents to sell the place had quoted that number as the estimate. He had never authorised anyone to say that the place would carry 18 cows and two horses, and when Dutton had come to- him he had no knowledge that he intended to go in for dairying, nor had he said anything of installing milking machines. It should have been obvious during the inspection that the yards and milikng shed were not being used to any extent. The first witness had heard of fraud in connection with the sale was a letter from Messrs. Roy, Nicholson and Bennett, in November, 1921, and he had denied the charge made in the letter. Some time later, on March 15, he received a letter from Mr. Bewley, on Dutton’s behalf, claiming £7OO damages. He had again denied the charge. He had inspected the farm within the last few weeks, and considered it had been neglected and had gone back since he had left it. Witness proceeded to specify alleged neglect as regards certain paddocks, and the manner of feeding out the hay, while, he said, no provision had been made for spring feed. In its present state he estimated that the place would carry about 14 cows.

THE CROSS-EXAMINATION. To Mr. Quilliam: It would not be usual to take over the liabilities he had taken when he had bought the place from Hollins. Most leases would have some clauses regarding plouhging. The cross-examination was continued to ascertain the details of the £BO spent on the house, but witness was unable to say what these were, while it was elicited that by “windows” he meant panes of glass. The work he had done outside, witness continued, was the same as would be done on any farm, while outside labor he had engaged would cost him about £lO. As far as he knew Hollins had carried out the terms of the lease except the painting and had done the ploughing required of him. Witness proceeded to give details of his purchases of stock and his sales during his term on the farm. Mr. Quilliam: Did you attach any importance to your estimate that the place would carry 16 to 18 cows?—Certainly. You know that the estimate was a material factor?—Yes. Did you know what these people wanted the place for?—l had made up my own mind, and, being pressed, I thought they were buying it for a dairy farm. When he asked the carrying capacity he meant dairy cows, didn’t he? And you pieant dairy cows wheta you said 16 to 18? -Yes. Continuing, witness admitted that the field of turnips he had left on the place , had been a failure, and that it was due to dub-root. He had not told Dutton that there was club-root, and he did not think it was necessary to tell him that it was there. It was quite probable that if another crop of was put in that paddock the crop would be a failure. Witness did not consider it necessary to tell the purchaser of these things. He could not say why the grass had gone back, and at the time he had sold it it was every bit as good as McCracken’s across the road. He did not think that he could have sold it for £6OO if it was capable of carrying only 10 cows. THE *LAND AGENT’S TESTIMONY. Frank Herbert Jellyman, garage proprietor, New Plymouth, formerly a land agent, gave evidence regarding the enquiries of Langridge for a small farm “on the Egmont Road if he could get one.” He was given the option of purchasing the freehold or of taking over the lease. He detailed the visit to Upson’s place, the inspection taking about an hour and a half, probably longer. The milking-yard was covered with grass, and the place did not look as if it had been used for dairying, nor did he hear Upson say that either he or Hollins had so used it. It was not until July of that year that he knew Dutton intended to make the place a dairy When th* place had beeß add ihlW.

were hardly any blackberries to be seen. Witness considered that the place had gone back since it had been sold, and considered that some of the place was not being used. To Mr. Quilliam: He was not sure whether defendant’s brother was. on the place when the inspection was made. An experienced farmer should be able to estimate the carrying capacity of a farm as he inspected it. Regarding the blackberry, he meant that while it was still there it was cut down. He considered that Dutton had neglected the place by ploughing up five acres of young grass which should have been left; had not done anything to the turnip field, and had let another paddock run out. \

Ernest Upson, farmer, Hillsborough, said he waS present when Dutton inspected the farm, and had heard no reference to carrying capacity. The place was in quite good order when it was sold, but the swedes showed the club-root very badly. William Willing, the owner of the freehold of Dutton’s farm, stated that he had carried 10 to 12 cows and a horse on the place, and while Upson had improved it, he considered it had gone back during Dutton’s tenancy. In reply to Mr. Quilliam, he stated that he had never complained to Dutton that the place was going back, but he had told him that he was carrying too many cows on the property. He was then carrying 13 or 14. He himself had failed to carry more than 12 cows on the place, for want of grass; and he did not think that at any time during the past four years it was capable of carrying 17. Other witnesses gave evidence as to Qutton’s method of farming. THE SUMMING UP.

In summing up, His Honor said that this was an action for deceit or fraudulent misrepresentation, and it differed in some respects from other kinds of actions. It was not an action on a warranty or guarantee of the quality of the land, which was neither in the evidence nor in the lease. The action was for an alleged wrong done to the plaintiff, whereby he had suffered pecuniary damage. In order to constitute the action, the plaintiff had to prove that a statement was made of some existent fact, not a promise or a speculative opinion. He had also to prove that it was an untrue statement, and that it was untrue to the knowledge of the person making it and was made with a view to effecting the sale of some property. Plaintiff, to secure a verdict, must make out that it was not a neglectful statement, but a fraudulent statement.

His Honor continued that fraud was odious, and before they could convict a man of fraud they must find him capable of doing something which humanity regarded as odious. This was one of the elements they must attribute to defendant before they found plaintiff’s case proved. A man may “puff” up his propreyt, but the time came when he had to be very careful regarding his statements. It was essential in an action of this kind that plaintiff should have been really misled—must have been misled by fraud and untrue statements into the bargain. Without putting any specific issues to them, he would say, from his notes, Ahat their duty was to determine, —did the defendant represent that the place would carry 17 cows as well as horses and other stock? Did he represent that he had milked 17 cows and that his predecessor had also done so? Were these statements untrue, and did the plaintiff believe these representations and make the purchase relying on their truth ?

The jury retired at five minutes to five and were out until a few minutes after nine, when the foreman announced that there was no hope of-arriving at an agreement. In reply to His Honour, the foreman answered that there was no possible chance of arriving at even a majority verdict. His Honour then discharged them. Mr. Quilliam made formal application for a new trial.