DUTTON v. UPSON.

Taranaki Daily News, 5 September 1922, Page 6

DUTTON v. UPSON.

SALE OF A FARM. ALLEGED MISREPRESENTATION. Yesterday morning the re-hearing was commenced at the Supreme Court, New Plymouth, of the action brought by Leslie Samuel Dutton against Henry Herbert Upson, for £BOO as damages for alleged misrepresentation in the sale of a farm on the Egmont Road, near Egmont Village. The plaintiff stated that he purchased the farm from Upson for £6OO and entered into possession on June 21, 1920. During the negotiations, he alleged, defendant had stated that the carrying capacity of the place was 17 cows as well as horses and other stock, and that he had wintered 17 cows on the land. Further, he was alleged to have stated that his predecessor had milked and wintered 17 cows on the land, and plaintiff said he relied on the truth of these statements. He alleged that the representations were false and untrue to the knowledge of the defendant, and, in consequence, he claimed the sum stated. At the previous hearing Dutton gave evidence to the effect that the place would not carry more than 10 cows, while others gave evidence as to his methods of farming. 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. After a two-days’ hearing the jury disagreed.

Mr. R. H. Quilliam appeared for the plaintiff and Mr. L. M. Moss for the defendant. and the following jury was empanelled:—Messrs. O. Dunford, E. L. Thorpe. R. G. McGalley, F. News 11, E. J. Clough. A. Rodh, J. H. Harrison H. ;G. Kay, H. J. Patterson, W. N. Stephen- [ son, F. Sykes, and E. L. Humphries, the last named being chosen foreman. Evidence was given by Louis C. Sladden. surveyor, Nevr Plymouth, who produced a plan of the farm, and said he estimated there were about 5| acres not available for farm purposes. There were some shingle deposits on the land. Replying to Mr. Moss, the witness said he would not be surprised to hear that there was a. depth of about five feet of soil on top of the shingle. The plaintiff then entered the b<lx i , and ?ave similar evidence to that given at the previous hearing. In cross-examina-tion he said that he wae positive that there was no grass in the milking shed when he inspected the place. Dutton's evidence concerning the details of the visits to the place and the purchase of it was corroborated by his father-in-law’, Luke Langridge, farmer, Egmont Village, who also repeated his former evidence that he did not see how Dutton could have made the farm carry more than ten cow’s.

Evidence was also given by Frederick Earp. James McCracken, William. George (neighbors of plaintiff), and by Thomas Murphy (stock-dealer), similar to that given previously concerning the state of the property when Dutton tvent into possession and as to his methods of farming. All W’ere agreed that, he had done the best he could, and that the place would not run more than t£n cows. Mr. Quilliam also called Mr.> Arthur Morton, president of the National Dairy Association, and chairman of the Mangorei Dairy Company, who said that the land in the neighborhood, as a rule, would carry about one cow to three acres. He’had inspected 1 Dutton’s fdrin and considered that it would carry II cows, a bull and a horse, if it w’ere in good order. No man with any knowledge of farming would attempt to carry 17 cows on the place. That number might have been carried when it was virgin land, but it would have been impossible during the last ten years. At the conclusion of the evidence for the plaintiff. Mr. Moss addressed the Court. He said that in criminal trials for fraud the prosecution had to establish a prima facie case before the defence was called. He submitted chat the same process obtained in civil proceedings and contended that the plaintiff had not established a prima facie case. They had not called any new evidence, except that of Mr. Morton, and he had not inspected the place before Dutton took possession. Further. Dutton had taken Langridge with him to inspect the place, so that his father-in-law could form an estimate, and this he had done, although he now qualified his previous evidence by stating that his estimate was influenced by Upson’s alleged statement as to the carrying capacity. Mr. Justice Chapman considered that the case should go on, but he would reserve leave to Mr. Moss to move in the matter later.

Mr. Moss then 'briefly addressed the jury and called John Hale, farmer, Avenue Road, New Plymouth, who gave evidence concerning the pasture at present of the farm. He also stated that no part of the place could be said to be properly farmed. The Court then adjourned till 9.30 this morning.