A DEFENDED CLAIM.

Hawera & Normanby Star, Volume LXIX, Issue LXIX, 4 November 1915, Page 7

A DEFENDED CLAIM.

JUDGMENT FOE PLAINTIFF.

The Magistrate (Mr Kenrick, S.M.); yesterday afternoon gave his reserveddecision in the defended action James Patchell (Mr Spratt) v. Peter Me-, Donald (Mr ODea). This was a claim for £42 18s as damages for breach of a covenant in a lease. The Magistrate, in his judgment, said that Mr ODea had contended that plaintiff should be nonsuited, he having accepted rent, thereby waiving any claim for breach of covenants under the lease. The cases quoted in support of this contention relate, to building contracts, and his Worship did not think the principles could be applied to the present case. There was a New Zealand case which dealt with the point I raised, m which it was decided that' the receipt of rent was only an admission up to the date of the rent being due, that the tenancy was then existing, and that therefore the right of reentry for conditions broken was up to that date gone, but it did not go beyond that. The receipt of rent was not a waiver of continuing breaches, and the nonsuit point therefore must fail. In regard to the items of damages claimed, his Worship said he found that plaintiff was entitled to £25 7s 6d damages. His Worship said he had not allowed for tarring, as it had been proved that this work was well done, although not at the time stipulated. The well, his Worship considered, was a part of- the premises, the farm being largely dependent on it for water, but the evidence did not satisfy him that defendant had done anything to cause a shortage of water, and no damages would be allowed on that item of the claim. The partition m the cowshed, his Worship considered, was proved to have been a fixture, and should not have been moved. Judgment was given for the plaintiff for £25 7s 6d, with costs.