PREMISES VACATED

Evening Post, Volume CX, Issue 148, 20 December 1930, Page 7

PREMISES VACATED

BREACH OF CONTRACT SUCCESSFUL CLAIM Reserved judgment has been delivered by Mr. Justice Blair in the case of Hallcnstein Bros., Ltd., against the Lawrence and Hanson Electrical Company, Ltd. Tie plaintiffs sought specific performance of an alleged agreement by the defendants to take a lease of part' of their premises in Lome street, Auckland, for a term of five years from Ist January, 1927, at a rent-al-of £500 a year, plus rates. The do- j fondants vacated the premises on 30th April, 1928, after giving the plaintiffs written notice of their intention to j that effect. Altcrnatvely, the plaintiffs claimed £946 damages for breach of contract. At the hearing the defendants denied having entered into any such agreement as alleged, and contended that their tenancy was on a monthly basis, and was properly terminated by notice in writing. If it were held that any contract was made for a lease, then it was abandoned by the defendants, and the plaintiffs acquiesced in the abandonment. The defendants also pleaded the Statute of Frauds and contended that the plaintiffs, by taking over1 the premises and re-letting them, had waived their claim to damages. His Honour, in the course of his judgment, said he would accept the evidence of Mr. Fels, general manager of the plaintiff company, that one of the defendants' representatives informed him definitely in October, 1926, that the defendants were taking over the new lease. Again there was a letter sent by the defendants' Auckland manager to Wellington in December, 1926, which his Honour considered could not have been written unless the arrangement for the renewal of the lease had been concluded, and it appeared to him strongly to confirm the correctness of the evidence given on behalf of the plaintiffs. Another letter written, in January, 1927, confirmed that view. The facts showed that the defendants entered into direct negotiations with the plaintiff, exercised the right reserved to them to take a lease for. five years, commenced and continued to pay rent at the new rate, and paid also the rates. On behalf of the defendants it was strongly urged that two letters written in April, 1927, showed that the matter of the rent was still at large, and was the subject of negotiations, and that, therefore, there was no concluded contract. His Honour said he would not accept that contention, as he considered the matter of rent had been agreed to by Mr. Fels, and had become the subject of contract. Referring to a letter written by the plaintiffs in August, 1927, his Honour said it plainly stated that the premises were leased to the defendants as they stood and that the lease had about four and a half years to run. This letter was acknowledged by the defendants, who did not suggest that the statement regarding the term of the lease was not correct. His Honour held that the plaintiffs, by re-letting the .premises, must be taken as having concurred in the breach and treated thp contract as ended. They were then entitled to recover damages for the breach. He also held that the requirements of the Statute of Frauds had been satisfied. The plaintiffs having resumed possession of the premises and adopted the defendant's breach, there could not be specific performance, and the claim must be limited to damages. Judgment would be for the plaintiffs for £922 13s Ba, with costs according to scale and disbursements and witnesses' expouscs to be fixed by the Registrar. At the hearing Mr. P. B. Cooke, with him Mr. H. J. V. James, appeared for the plaintiffs, and Mr. A. Gray, K.C., with him Mr.'W. H. Cunningham, for the defendants.