ALLEGED MISREPRESENTATION.

Taranaki Daily News, 30 August 1922, Page 6

ALLEGED MISREPRESENTATION.

BALL ROAD FARM CASE NON-SUIT APPLIED FOR. The hearing of the claim brought by Edward Thomas against William Horne McDonald for £2837 as damages far alleged misrepresentation concerning a farm on Ball Road was continued at the Supreme Court, New Plymouth, yesterday. After the cross-examination of Robert James Watt, whose evidence was taken yesterday, counsel called the plaintiff. Edward Thomas, who stated that he had been in New Zealand for about twelve years. Prior to taking McDonald’s farm he had a lease of about 112 acres at Okaiawa, the lease having four years to run when he went to Ball Road. Witness gave details of the stock he had carried on the Okaiawa farm. The stock was free from mortgage, and he had about £7OO or £BOO. and feeling more inclined to possess a freehold, he inspected McDonald’s farm, which he had seen advertised. Thomas proceeded to minutely describe almost each step as ho accompanied McDonald over the farm until they came to the “sand hills” paddock, the real bone of contention. They were about a quarter of an hour in this paddock.' not more than a chain inside the fence, but witness said McDonald appeared to hasten him on to look at a patch of lucerne. He could see the seaward boundary of the farm from where they were standing, and noticed a few sand holes where the cattle had been rooting. There was some rough feed on the paddock, and McDonald had told him that he carried his cows on it in the ordinary way. McDonald had also told him that he had milked 75 to SO cjws v but that year he had reduced the number. as he feared that his man would be called into camp. Further, he had said that the ten-acre hay paddock would provide sufficient feed for the winter for the whole herd. Witness had commented on the large carrying capacity of the place, and McDonald had said, in response to witness’ statement, that he had only three horses Referring to hay again. McDonald said that even if vvitness did not grow as much hay as he had done, he would still be on the safe side, as the back paddock (the sand hilD) would carry the herd for about two months. On the subject of the acreage of the “sand hills” paddock. McDonald said: “I reckon it to be about nine acres.” while in response to a question about the milk taken. McDonald said he had taken 27GO!bs, but when asked for his returns said that Shields had them in Patea. 'Witness had expressed a desire to see them, but McDonald said:

“Don’t worry about returns. You can take it from me that the place will carry 75 cows.” Next day he entered into a

conditional agreement to purchase, and this was later confirmed. "Witness corroborated the evidence of the witness Janies re the visit to the farm on June 3. Later on he made another visit. Ho brought on 75 cows, one bull and three horses, having bought 15 cows to bring the number up to the capacity as set out by McDonald. Ho took his stock down on June 30. but the “sand hills” paddock had'been cleaned up by McDonald’s cows. METHODS OF FARMING. Thomas described his methods of farming, how he had grazed the paddocks in rotation, and how he had. tripod harrowed the “sand hills” paddock on a very wet day. Some seed ho had sown came to nought, and on Labor Day. when Mrs. McDonald had visited the farm, he had complained to her that the "sand hills” paddock was not all that her husband had represented it to be, and he felt he had been “had.” Liter on. McDonald had come down, and witness complained to him. without, however, evoking a reply, "as McDonald appeared to be in a hurry. Defendant had never advised him as to the best methods of treating the "sand hills” paddock. "Witness had to get rid of his calves, and during the season he had had to cull, so much so that at the end of the season he had only 54 cows on the place. The following April McDonald had again visited the place to obtain some of his belongings, not no discussion had taken place. Realising that he would have to do something about the “sand bills” paddock, witness consulted the director of the State Farm at Moumahaki, receiving the advice to plough and lime it and try cats. Witness had tried the experiment with about two acres, and had had a good “take,” but the oats dried off. He also tried lucerne, and although it cams away well, drifting sand "began to cover

it, the heat of the summer finally singeing off such tops as remained. His second season’s experience was similar to that of the first, having to get rid of his calves, and to again cull his cows down to 56. IVitness considered he had done everything possible to make the farm carry 75 cows. The next season he increased the herd to 64 cows, but had again to cut it down to 59. At the present time he had 60 cows, 2 bulls and a school pony for his girl. Further conversations with defendant was the burden of witness’ remaining evidence. At one time he invited McDonald to come down periodically and see how witness was farming the place. He had not come down, however, even though witness had offered to pay his train fare. In the first season he had received 2/- for butter fat, 2/5 the next year, while for the past season he had received 1/14. with the expectation of another three half-pence. He had not tried to sell the farm. Cross-examination was first directed towards Thomas’ dealings with one McKay concerning the latter’s sub-ease of his Okaiawa property. Mr. Spratt put it to witness that he was aware that McKay was in hospital when he had put the bailiffs into the place, but Thomas denied this. He admitted that it was ten months after he had terminated the lease that he applied to McDonald for a reduction of his mortgage. Witness admitted that be did not have £lOO when he started 7n New Zealand tv/elve years ago. He considered that h-.- had permitted himself to be shepherded over the ♦arm by McDonald because of his confidence in him, but, at the time, it did not occur to him that he was being shepherded. When defendant said that he reckoned the “sand-hills” paddock was about nine acres witness thought it was an underestimation. He also had his doubts about McDonald’s statement that the. paddock would carry the whole of the lugd f«r two months in and

likewise about carrying capacity of the farm, but defendant had been so insistent in his statements that witness could no longer entertain his doubts. In October of his first year he considered that McDonald had misrepresented the farm to him, while in July of last year he found that the takings of milk had been misrepresented, but he considered he should give the place a genuine trial before he brought the action. Witness admitted that he had no root crops in for the spring, and that he had had abortion in some of hi,s cows.

Cross-examination was continued with reference to plaintiff’s application for a reduction of the mortgage, and Mr. Spratt put it to Thomas that the action was brought only when the mortgage was not reduced. Further, he put it that the sole reason/plaintiff asked for a reduction was because he had been caught in the boom and others about him had their mortgages reduced. Plaintiff could not deny that in these negotiations no mention of fraud had been made. APPLICATION FOR NON-SUIT. At the conclusion of Thomas’ evidence, which closed the case for the plaintiff, Mr. Spratt applied for a non-suit. He submitted that the evidence was clear that the plaintiff was not misled, while there was no proof of damages, which was the essence of the case. Hi«s Honor: The statement is that this land is worth nothing, which, of course, cannot be correct. There is no actual mention of damages. Mr. Spratt continued that the plaintiff’s case was confined to the statement that the 19 acres was worth £l5 to £2O per acre instead of the average price which was given for the whole of the farm of £lOO per acre. Obviously the farm had been sold as a whole. There was not one tittle of evidence to show what was the true value of the lane when it was sold. Some of the most damaging evidence against his friend’s case had been adduced by him. and from what he said the place would carry it was worth what was paid for it. Thomas had leased his farm of 112 acres carrying 64 cows to McKay for £5 per acre and had .paid £lOO per acre for a 113 acre farm which would carry the same number of cows.

His Honor considered it would he better to let the case go to a jury, but he would reserve for Mr. Sjratt to move.

Cecil John Hawkin. farmer. Mokoia, and chairman of the Mells Dairy Company. said he knew Thomas’ farm, and considered it some of the best land in Taranaki. He had advised McDonald to go out on account of his health, and he himself would have bought the place at £lOO per acre if he had had the chance. He considered it cheap at the price in 1919. He knew of other sections with sand-hills in them which had sold for £126 per acre. He did not think there would have been any difficulty in selling the farm at £lOO per acre, even without any representations as to its carrying capacity, which he would estimate at 75 cows, with the usual other stock. The “sand-hills” paddock was not the ordinary type of sand-hill. There was good land underneath which had been covered by drifting sand. Marram grass was sown to stop the drift. The marram grass grew luxuriantly, and gradually collected- clovers and other grasses, and eventually the land would again become good pasture. It would be a mistake to plough the land while marram was being grown. He had been over the place recently, and the marram grass had been almost eaten off. ’ Stock should not be put on it in the dry season, but the paddock should be kept for wintering. He did not know of any trouble McDonald had had with the sand-hills paddock. The rough feed would be of value to the farm. Sidney 0. Tonks, farmer, and chairman of the Manutahi Dairy Co., said his farm bounded Thomas’ place on two sides. When McDonald had it the “sand-hills” paddock was covered with long marram and other rough grasses, but now it was very scantily covered. At that time that paddock was better than the adjacent land on his property, but now his was the better. He considered the capacity of the place as 75. In ansiver to Mr. Taylor, witness considered, from his view of his farm as he rode round his own place, that Thomas was a careful farmer but lacked experience. He was always ready to give advice when asked for it. Evidence was also given by Robert McCoy, Hawera, and the Court rose till 10 o’clock this morning.