Cutts v Buckley [1933] HCA 21

Gates v re Se, if fe 2PiyLidy

Munal Life 32]

a ar fee CEH 49 C.L.R.) OF AUSTRALIA. 189

{HIGH COURT OF AUSTRALIA.]

CUTTS . Boge fs i : 3 i . APPELLANT} DerFenpDaNT, AND geese"... ae ete |.) . ) RESPONDENT. PLAINTIFF, z

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Practice—Damages—Lwo counts in declaration—Misrepresentation and breach of yo op A. warranty—General verdict for plaintiff—Appeal—Verdict entered for defendant" gag

on warranty count—General verdict, therefore, not sustainable—New trial on other count—Costs—Supreme Court Procedure Act 1900 (NV.S.W.) (No. 49 of gynwey, 1900), sec. 7. April 28;

In an action brought in the Supreme Court of New South Wales for Afay 1. damages the plaintiff declared in two counts, (1) for fraudulent misrepresenta- Rich, Starke, tion, and (2) for breach of warranty, both of which were based on representa- Pi%on and tions and statements, alleged to have been made on 23rd May 1930 by the defendant to the plaintiff, that the takings of the defendant's hotel were £127 10s. per week, of which amount not more than £4 or £5 was taken in the house, the balance being taken in the bar. Although in the meantime he had been informed by his agent, a broker, that particulars obtained from the Licensing Court and the brewery company concerned indicated that the bar takings were only £98 per week, the plaintiff, on 19th June, signed a contract to purchase the hotel from the defendant. The written contract did not contain the warranty sued upon. 'The plaintiff claimed that, although he relied to some extent on the broker, he relied principally on the statement which he alleged had been made by the defendant. The trial Judge took a general verdict from the jury upon both counts for an entire sum of damages.

Held that there was no evidence of a warranty, and as the evidence did not support each count the general verdict could not stand: judgment should be entered for the defendant on the count for breach of warranty, and, having regard to the evidence, a new trial should be ordered on the count for misrepresentation.