1907. H. C. OF A. trial on the main grounds taken, and from that decision the present appeal was brought. A rule was granted on certain grounds not material to this appeal. HOLMES V. JONES. The facts and the material portions of the pleadings are fully stated in the judgments. Pilcher K.C. and Rolin, for the appellants. There was no evidence of fraudulent intention on the part of the defendants in making the misrepresentation, and, even if there was such evidence, there was no evidence that the misrepresentation induced the contract that was actually made. The false statements, if made at all, were made with a view to a contract upon certain terms, but the plaintiffs refused to entertain a contract on those terms. Afterwards a full disclosure was made by the defendants of the facts so far as they knew them, and the plaintiffs negotiated for a contract upon a new basis altogether, inspected the property, and, as a result of that inspection, decided to purchase. The terms of the contract actually completed rendered the misstatements originally made quite immaterial. It is not sufficient for the plaintiffs to say that they were induced by those misrepresentations to make the contract. They must show that it was reasonable for them to be so misled. Under the circumstances of this case no reasonable man could come to the conclusion that the misrepresentation induced the contract. [GRIFFITH C.J.-Assuming that there was a fraudulent misrepresentation inducing the contract, the proper measure of damages does not seem to have been put to the jury. The plaintiffs are not entitled to be put into the position they would have been in if the contract had been performed in accordance with the representations, but only to be put into the position they would have been in if the contract had never been made. ISAACS J.-If they made a profit out of the contract as a whole, they cannot recover damages unless there was a breach of warranty.] No evidence was given that the whole property was worth less than was paid for it. Evidence should have been admitted to contradict statements made by the plaintiffs' witness in reply. It is immaterial at H. C. OF A. what stage of the case the evidence which it is sought to contradict is given. Shand K.C. and D. G. Ferguson, for the respondents. This Court has only to consider whether there was any evidence of fraud to go to the jury. There was abundant evidence upon which the jury might find fraud. Where a person makes a representation which he knows to be false, primâ facie it is fraudulent, and, if made to a person negotiating about a contract with respect to the subject matter of the contract, the jury may fairly infer that it was made with intent to induce the contract. Here the defendants knew, or ought to have known, that the statements were false. Having once made false statements under circumstances likely to deceive the purchasers, the defendants were prima facie liable for the consequences, unless they made a clear and distinct correction, and brought it home to the minds of the purchasers. They must show that their wrongful act did not cause the loss: Arnison v. Smith (1); Pollock on Torts, 5th ed., p. 286. There is no evidence of a clear correction in this case. This is not a case of caveat emptor. There was no opportunity for such an inspection as would have enabled the purchasers to test the truth of the statements made by the defendants. The size and nature of the property made a thorough inspection impossible under the circumstances. It is practically a case of misrepresentation as to a latent defect, which could not be discovered by a reasonable inspection. As to the question of damages, the sum agreed upon between the parties was some evidence of actual value. The defendants. said that the property with so many stock upon it was worth so much. If as a matter of fact there were not so many as they stated, the jury might fairly infer that the property and stock were worth so much less than the amount stated by the defendants. In this case the only possible measure of damages was practically the same as for breach of warranty. [They referred to Page v. Parker (2); Williams on Vendor and Purchaser, p. 729.] It is (1) 41 Ch. D., 348. (2) Sedgwick's Ruling Cases on Measure of Damages, p. 553. 1907. HOLMES 17. JONES. H. C. OF A. too late now for the defendants to take objection to the measure of damages adopted at the trial. 1907. HOLMES υ. JONES. [GRIFFITH C.J.-We have in two cases decided that a failure to take an objection at the trial as to the measure of damages does not affect the right of a party to take the point on appeal.] There was no objection in the Supreme Court at all. [ISAACS J.-It is peculiarly the duty of the Judge to draw attention to the measure of damages. The stage at which the objection is taken can only affect the question of costs.] The Court will not enter a verdict on this ground, because the matter might have been remedied if attention had been drawn to it at the trial. [GRIFFITH C.J. referred to Davidson v. Tullock (1); and Arkwright v. Newbold (2). ISAACS J. referred to Broome v. Speak (3); Waddell v. Blockey (4); Mullett v. Mason (5); Marshall v. Hubbard (6).] The evidence tendered by the defendants in contradiction of the plaintiffs' witness in reply was not admissible at that stage. The Judge had a discretion. Moreover the defendants had not laid the proper foundation. The evidence tendered would not have been necessarily inconsistent with that given by the witness. Pilcher K.C., in reply. August 22. Cur, adv. vult. GRIFFITH C.J. The first count of the declaration in this case, with which alone we are concerned, is a count for deceit. It alleges that the defendants, the present appellants, with intent to induce the plaintiffs to purchase from the defendants a pastoral property with stock plant stores and effects for £15,000, represented to the plaintiffs that the number of cattle upon the stations was then about 2,942, and that the number of the bullocks born in 1903 or older was then about 1,337, whereas the numbers were much less, and that these statements were untrue to the knowledge of the defendants. The plaintiffs say that by these representations the (1) 3 Macq. H.L. Cas., 783. (4) 4 Q.B.D., 678. 1907. HOLMES v. JONES. Griffith C.J. defendants induced the plaintiffs to purchase the stations and H. C. OF A. stock, &c. Now, the actual contract for the sale of the stations by the defendants to the plaintiffs was dated 3rd January 1906, and the alleged representation was made, if it was made at all, in a letter from the defendants' agents to the plaintiffs of 20th November 1905. The complaint is that the plaintiffs were induced to enter into the contract of 3rd January 1906, by the representations alleged to have been made on 20th November 1906. The first observation to be made is that it is clear that, in order that the action may be maintained, the representation must have been continuing down to the time when the contract was entered into, and must have been believed by the plaintiffs at that time, so as to be at that time an inducement to enter into the contract. The representation, as I have said, was made in a letter written by the defendants' agents. The subject matter of the contract was a pastoral property in Queensland called Bendeena. The plaintiff's had shortly before become the owners of an adjoining pastoral property which was to a certain extent dependent for water on the defendants' property, and the plaintiffs were on that account anxious to buy it. Some negotiations, the nature of which is not fully explained, had been going on between the parties before 20th November, and on that date the defendants' agents wrote to the plaintiffs a letter in which they said "acting as agents for the vendors," who were trustees of the estate (under a will) " we now place under offer for your inspection and answer as to approval or otherwise, on or before 20th December next," the station in question, "together with all improvements thereon and the following stock, the number and ages being only approximate, and not guaranteed, cattle, males about 1,000 bullocks 0's and older, 67 No. 1s, 30 No. 2s, 240 No. 3s, 167 No. 4s, 94 calves and 19 bulls, females" of certain numbers mentioned, "total cattle about 2,900. Horses about 200 head. Price, for the cattle, five pounds five shillings per head with all calves under six months. old given in. For the horses, four pounds ten shillings per head. Also three thousand pounds as part compensation for the bore and freehold land, the leasehold land to be given in." It appears that before this time the plaintiff's had written to a Mr. Campbell, from whom they had purchased the adjoining 1907. HOLMES บ. JONES. Griffith C.J. H. C. OF A. station, telling him that they were anxious to buy the defendants' Bendeena station, and they asked him to put himself in communication with one of the defendants who lived at Dubbo, in New South Wales, and endeavour to make a bargain for the purchase of the property. The instructions given to Mr. Campbell were contained in a letter of 4th November, written from Hobart. The plaintiffs suggested various devices to induce the vendors to accept a lower price, and the terms of the letter showed generally that the plaintiffs were anxious to buy. In pursuance of that letter Campbell visited one of the defendants, Mr. Sefton, at Dubbo, and had a conversation with him on the subject of the property. According to Sefton's evidence, he gave Campbell full information as to the stock then upon the property, but according to Campbell's evidence that was not done, or he did not recollect it. But there was, at any rate, a conversation about the cattle, and after it Campbell asked other persons to find out all about the cattle and to go to Sefton and ascertain the exact numbers. So much he admitted. That was all before the letter of 20th November, which is alleged to contain the misrepresentation. I pause here to remark again that the plaintiffs must show that the representation contained in that letter was understood by them to be continued up to the moment at which the contract was entered into in January. The letter of 20th November was in fact inaccurate. The number of cattle born in 1903 and earlier mentioned in the letter was actually 1,337. The total number mentioned was 2,912. There were not, however, at that time 1,337 cattle of those ages on the station. A good many had been sold before the letter was written. This letter, written by the defendants' agents, was therefore inaccurate. But there is no suggestion that the defendants' agents knew of any mistake in the numbers. There was no dishonesty whatever on their part. How the mistake arose is abundantly clear. It appears that the defendants, as trustees of the estate, were in the habit of getting quarterly returns showing the transactions on the property, and in the return for the quarter ending 30th June the figures showed the numbers of the cattle on the station at that date, but during the quarter ending 30th September many of these cattle had been sold, and a later return as of 30th |