LANDLORD AND TENANT.

Dominion, Volume 4, Issue 964, 3 November 1910, Page 3

LANDLORD AND TENANT.

A WANGANUI FARM. . A matter connected with a dispute between landlord and tenant was the subject of a judgment delivered by Mr. Justice Cooper yesterday. The plaintiff was George Hutchison, solicitor, of Wanganui, and the defendant was Hugh Muldrock, farmer, of Whaugarei. The defendant had leased a farm near Wanganui from the plaintiff, who sued for breaches of certain covenants in the lease, on account of which ho asked for possession of the property and rescission of the, lease. This action has not yet been heard, but there has been another action, in which Hutchison claimed - that the property was virtually held by Muldrock as trustee for him, although in form Muldrock was the lessee of the property. Hutchison, however, failed to establish, this trust. In his statement of claim in that action ho had alleged tho breaches of covenant on which he relied in tho new action. Mr. Justice Cooper, on the hearing of the former action, found, as a fact, that if there had been forfeiture' owing to the alleged breaches, such forfeiture had been waived by Hutchison. As a defeuce in the fresh action, it was submitted that judgment in the former action created an estoppal, and that the plaintiff was accordingly barred from claiming on account of the same breaches in the new action. Tho plaintiff thereupon moved to have the question. of estoppal determined as a matter, of law b&foro the hearing of tho action. This motion came before Mr. Justice Cooper last week, when Mr. Hutchison appeared in person, and the defendant was represented by Mr. K. G. Dalziell. In the judgment which he delivered yesterday, his Honour said that tho mortgaging of the property, which was one of the alleged breaches of cpvenant, had occurred since tho hearing of tho former action, and therefore there could bo, 110 estoppal on that account. The other alleged Breach was the granting of a sub-lease. His Honour, after quoting authorities, concluded 1 that plaintitf was not estopped in tho now action by his Honour's finding in the former action. Tho issue in. that action iras whether the defendant was trustee for tho plaintiff, but the foundation of the present action was that the defendant was the assigneo of the lease ill his own right. The plaintiff was entitled to re-agitate the .question of waiver of. forfeiture on account of broaches of covenant, and to adduce the same evidence which he had unsuccessfully brought forward before, in order to prove his present claim.