CLAIM FOR DAMAGES

Wairarapa Age, Volume XXXII, Issue 10700, 22 August 1912, Page 6

CLAIM FOR DAMAGES

FOR ALLEGED MISREPRESENT , TATIOX'I'IIANSI''I"H OK S'l A'l lOXS. His Honour Mr .lustico Sim and ajury of twelve, wore occupied in, tho Supremo Court throughout luosday hearing »» aetion lor £509 daunts, claimed in respect or loss alleg(d 1) ive been suffered through less oi • fot The parties were Charles Henry Osmond, ef Wellington, valuer, Clmrleg Clifton 0.-mc:s!. of Alastorto.. tarmor, and Gordon Osmond, of Pastel - ton farmer, plaintiffs, and William Robertson M.cLeod, <f Pon.ua, f.mmu(iv defendant. . ' Mr C. V. Skerrett, K.C. with \um Mr R. M Watson appeared for tie plaintiffs- and Mr M. Myers for tho '^Sm-.n^COXTKXTIONS. In the Uatement of chum it set out that ou September 2nd, IJI the parties entered into an agreeing to the exchange of their ve.peet.ve , )pevti( , s . Those of the defendant consisted cf three sections-nave stated to be of 3120 a.res and 3 roods 22 pernios, one of 1G U3 acres and an adjoining .section cf. 100 aeres, more or lets all situated a-b ainui-o-mapu. Plaintiffs', property consisted of 380 acres, more or lew situated at Porirua. and previously owned by Rudolph Nit/-, together with 538 acres situated at Porirua ami previously owned bv Francis MePharland. Jhe transfers were to be with all .stock, implements, buildings as then on the respective properties, together with household furniture, stores, fencing, wire etc. Plaintiff C. H. Osmond's olfer way to the properties subject to existing 11101 o-ao-es, vi/... £15,000 ft 5 per cent on defendant'/; and £BC!K) at 5 per cent on plaintiff's known as MePharland s, the property known :\s Xitz-'s being a leasehold with pur-hasing clause f.t £150(1. with interst thereon at H per <>eut, Defendant was to take liability due to Mew,* Dalgety.jmd to give him a further sum of £bioo. No stock should be sold by either party, a tall\ of .stock should be taken before October 21st, 1011, and for the purpose of equitable adjustment all -sheep should be considered as being cf the value of

12s 6d cattle GOs, horses £lO. Defendant';:. sheep, for the purpose of this exchange, should number 5500,

cattle 200. and horse* 8, and plaintiff's

sheep 2100, cattle 30, and horses 5. These wore guaranteed a,s being tlio niiniinum nuinbers. Subject to hip sons being able to finance it, plaintiff C. fl, Osmond, on their behalf, agreed to exchange on the terms given. Defendant McLiod agreed to tlie offer and continued the agreement. Plaintiff stated that in tin';., agree-

ment there were- the following errors of description (a) The correct area of the land mentioned as MePharl mdVi was 531 acre!;; (b) the amount of the purchasing clause, of the property known . "iSitz" was £-{-750; (c; the coi'rect area of tlie property known as \V::-in-ui-o-n:apu wot 3888 acres. Hefore entering into the agreement the defendant, 'by Ins agent, represented to the plaintiff, C. T'l. Osmond, that he had wintered on the property thp respective number of sheep, cattle, and horses stated. On or about September 11th, 12th' and 13th the pliintiff 0. H. Osmond, and the defendant discussed the question of the errors, and in. the cours<p of the discussion it was alleged that the de-

fendant represented to plaintiff, C. H. Osmond :—(1) That the number of live stock were substantially on the property and that he lv?d no looses of stock to speak cf;_(2) that there had been no 10-ss of live stock on tlie propety re.f any account, and that a loss of sixteen sheep would cover everything, and that thp number of cattle and horse-s would be in excess of the number stated by tlie de-fondant and shown' in the agreement of September 2nd.

j Those representations, it was claim - 0(1, wore made with the intention that the plaintiff .should act upon the same, and the plaintiff thereby believed them and was thereby induced to civ ter into another contract. Till* contract, entered into on September 13th, corrected the errors of description mentioned ) and stated that the .stock was to be tallied and taken over on or before October 31st, 1911, and tint the minimum number of stock on the TVainui-o-mupu property should be: i) 500 sheep, 200 cattle and 8 horses. In order to prevent any doubt arising between the parties, it was agreed that the f'heep should be accepted by Mr Osmond a-s being 5484, cattle ;is 206 and horse,s as 12. No allowance was to be made sido for any decrease or increase in the numbers.

hwi the plaintiffs look possession of tin AVainiiw-'-mapH pmpcirty and took t.tofk they found there had been

heavy mortality amongst the stock. I The tallies taken by the plaintiffs | allowed the istock short to be, cattle . 8S; sheep 5-12. Before the plaintiffs j took possession they were not given \ an opportunity to tally the ."took and I; relied on the representations of the defendants. These representations, j they alleged, were made by defendsnt fraudulently, he well knowing that they were false or were made reekelesslv, lie not. caring whether they were true or fake. Plaintiffs tlierefore claimed £509 as damages for sock short. THE OTHER SIDE.

Defendant denied that any person t Ivul been authorised to make any representations on his behalf to the plaint iff'. He admitted the discussion of the errors described, but denied that in tho course of that discussion, -or at any other time, he made the representations alleged. He defied also that they were made with the intention that plaintiff should act upon them or be induced to enter into the contract. The agreement of. September 13th way admitted (as was also the original agreement). Defendant contended that he .informed the plaintiff of the losses ami stated 'that he believed they were heavy. Tf the defendant made any r.f the representations ■ alleged in the statement of claim, they were not made with the intention to induce, nor did they induce, the plaintiffs to enter into the agreement of September 13th. It. was denied that plaintiffs suffered any damage from any act of default of defenda n-t's.

Evidence in support of the claim was given by plaintiffs, Charley Henry and Charles Clifton Osmond and Erancys O'Brien, electrical linernum. Wij Ham George Morris, shepherd, Edgar Lowder Holmwood, auctioneer and stock, and station agent, Master ton, and John J. B. Moody, manager for Dalgety and Co. at Ma--terton. NOX-SUIT REFUSED. Mr Myer:' asked for a non-suit on the ground tli.it there had been no evidence that warranted the case, a.v one of fraud, going to the jury. He -submitted the claim was purely and solely one of tot. But even for eontract he submitted there Ava<;. nothing to go to the jury. Hi.s Honour refused the non-suit, 'leave being reserved to counsel .tn move for non-suit at a later stage. After Mr Myers had addressed the jury,. the court adjourned till Wed.nesr.lav.