DRAPERS AT LAW.

Mataura Ensign, 26 September 1913, Page 7

DRAPERS AT LAW.

J.SMITH v. MACGIDBON & CO. JUDGMENT FOR PLAINTIFFS. Judgment in the case of H. and J. ou'utn, Ltd. (Messrs Hosking, K.C., and iwleir) r. Mac Gibbon and Co., Ltd. (Mr wvrlei'), heard at the August session of wia Supreme Court at InvercargLil, was received by the Registrar yesterday irom his Honor Sir Joshua Williams. The terms of the judgment are as follows:

. 'The plaintiffs were lessees o? premises at Gore in which they had earned on a drapery business. They removed their business to other premises, leaving the leased premises vacant. The plaintiffs then agreed with the defendants to give up to them the lea.se of the premises, 'the defendants taking over the burden of the lease from the time they were let .into possession. It was not contemplated that there should be an assignment of the lease by the plaintiffs to the defendants, but that the Elaintiffs should arrange with the land>rd for a fresh lease, and that the plaintiffs should give up the old lease. The plaintiff s gave up possession to the defendants who have ever since retained possession. The defendants carry on a drapery and grocery business and wanted the premises for their grocery business. The plaintiffs allege that it wag a term of the agreement that the defendants should not carry on a drapery business on the premises during tno term of the lease which the plaintiffs wgre to give up. I think the weight of ■tlie evidence is in favor of the view that ther was such a stipulation. Looking at the position of the parties each carrying on a rapery business in the same town there is an antecedent probability that there would be such a stipulation. Very ■hortly after the defendants took possession and before they had made use of the premises for any purpose the flow! oame and damaged part of the stock of drapery. The defendants then moved the damaged stock into the premises and sold it off there. The sale continued during the greater part of a week. After that the defendants used the premises for their grocery business only, and have continued to use them for that purpose. The plaintiffs allege tliat the sale of the damaged, drapery was a breach of the agreement and ask,, ior damages and for an injunction. The Statute of Frauds has been pleaded and it is contended on the part of the defendants that as the agreement was verbal only the statute is a bar to the plaintiffs' claim notwithstanding that the agreement has been partly performed by the delivery of possession of the premises by the plaintiffs and the retention of possession by the defendants. Now, at the time when the flood came the agreement between the parties had not been completely performed whether or no tlie stipulation relied on by the plaintiffs was or was not a term of the agreement. The defendants had obtained possession but the legal estate of the premises uner the lease from Coombes *till remained vested in the plaintiffs under the Land Transfer Act. The plaintiffs still remained liable to the landlord for the rent and covenants and the defendants so far had not come tinder any liability to him. In such circumstances there can be no doubt that either side could have come to the court and have asked for specific nerformanoe end that, although the agreement was by parol, tlie fact that possession, had been given and taken under it wou'd have been a part performance which would take the agreement out of the Statute of Frauds. If parol evidence of the agreement is admissible at all, evidence of every term of it is admissible. We have therefore a parol contract taken out of the Stateute of Frauds by part performance and enforceable by •pecifie performance in a Court of Equity, one of the terms of the contract being* that the defendants shall not carry on a particular business on the property taken over. Whero a contract •can be enforced by specific performance a Court of Equity now has jurisdiction to award damages for a breach of that contract. It is only where the court cannot grant specific performance that part performance does not take a parol contract- out of the Statute. In the latter case the equitable doctrine of part performance cannot be made use of for the purpose of obtaining damages on a contract at law (Lavery r. Pursell, 39 C.D., 508). Where a contract can be enforced specifically and there aro 0011dit : ons in it which the court cannot give < ect to specifically, the court can wvard damages for the breach of such conditions (Middleton v. Greenwood, 2 l)e Gex. Jones and Smith 142). 1 think, therefore, that there is jurisdiction to award damages, and the plaintiffs are entitled to recover. Looking at the extraordinary state of things which prorailed at the time of sale and at the circumstances under which the goods were sold I am not satisfied that the plaintiffs have suffered any substantial damage by the action of the defendants. That they have suffered such damage is not in my opinion, either a necessary or probable inferenco from the circumstances. I think £lO would bo quite a sufficient compensation for any possible injury that may have been ■caused to the plaintiffs by the action of the defendants. The plaintiffs aro entitled to £lO damages and an injunction as prayed up to February 1 next, tlie date of the expiration of the lease held by the plaintiffs. Judgment for the plaintiffs for £lO and an injunction as above, costs on lowest scale, disbursements and witnesses' expenses to be fixed by the Registrar."