SUPREME COURT

Manawatu Standard, Volume XLV, Issue 217, 18 August 1925, Page 7

SUPREME COURT

DIS'PUTE OVER LAND DEAL. JUDGMENT RESERVED. The case wherein Ernest Cuthhert Barnett, medical practitioner, of Palmerston North, and 1 Herbert Henry Sutton, •farmer, of Rongoniai, arc making claim and counter-claim respectively on matters arising out of the sale of a farm property at Halcomb© was continued at the Supreme Court this morning before His Honour Air Justice Ostler. In continuation of the case for defendant, Air. Hart called further - evidence.

John Elliott Lindsay Gardiner, stock auctioneer, deposed that, at the clearing sale of Dr. Barnett’s stock, 935 ewes had been disposed of. Samuel George Chandler, farm manager, residing at Kimbolton, gave evidence that he had managed Dr. Barnett’s farm during the last 18 months preceding the clearing sale. Dr. Barnett had started the last season with a little more than 1100 sheep. In reply to His Honour, witness said that there had been only 15 deaths during the last winter, which was, ho thought, a low death rate. The case for the defence concluded, Mr Hart, in addressing the court, said that the initial misrepresentation was the newspaper advertisement in which tlie intimation had been made that file property was for sale. Therein it had been stated that the carrying capacity of the property was 1400 ewes, which representation was admittedly false. Had defendant not seen that advertisement he would not have entered into any negotiations for the purchase of the farm. The representation in the advertisement was the foundation of the present proceedings. During the negotiations it had never been repudiated and the impression had liceii given to defendant all through that the carrying capacity was in excess of what it really was. In his’address, Air Alvers said that defendant had not relied on the advertisement for an opinion as to the carrying capacity of tlie farm ;he had been there and had judged for himself, as tho result of which inspection he had agreed to purchase the property. Before defendant was entitled to have the agreement rescinded it was necessary for him to show that he had relied upon misrepresentation ; if ho had not relied upon misrepresentation he was clearly not entitled to succeed. His Honour reserved judgment. CLAIM FOR DAAIAGES. ALLEGED BREACHES OF LEASE. The bearing was then commenced of a ease wherein Alary Alulrooney, of Palmerston North, widow, is claiming from Thomas Beaumont Divan and Lamartine Divan, both of Wellington, botelbrokers, £377 special and £SOO general damages for alleged breaches of an betel lease. Air ATyevs, K.G., with him Mr Jacobs, is appearing for plaintiff and Air Ongley for defendants. The statement of claim set out that plaintiff on July 31, 1919, leased to defendants the Alasonic Hotel, Palmerston North, for a period of live years at a rental of £2O per week, and that defendants allegedly failed and neglected during the fourth year of the term to paint all the outside wood and ironwork as provided by the lease, and also allegedly failed and neglected to keep the premises in good and tenantable repair and condition. Defendants, it was alleged, had carried out and effected certain structural alterations to the premises without the consent and authority • of plaintiff, and during the continuance of the lease further, alleged breaches were committed by defendants as follow: (a) Possession of the premises was parted with to one Robinson without the consent of plaintiff; (b) a breach of the requirements of the Licensing Committee was committed in that one Alitcliell, a transferee thereof from defendants, failed to divest himself of tlie premises so as to have nothing to do with the hotel or its control; (c) that by reason of the breaches the license for the premises was from time to time endangered; (d) that, in addition, defendants failed and neglected to use their best endeavours to increase and extend tlie custom or business of the hotel, the trade and custom of the hotel as a result thereof being greatly prejudiced at the termination of the lease. The statement further allegd that due notice in relation to the repair of the premises was given to defendants, who still neglected and failed to effect such repairs. By reason of such failure the work had had to be carried out by plaintiff, which, in addition to the cost thereof, resulted in a loss of the premises for guest purposes for upwards of three months. By the terms of the lease defendants were liable for all rates on the premises during the continuance of the term thereof, but, it was alleged, had failed to pay the proportion thereof for the current year, such share amounting to £l9 2s 7d. Prior to the termination of the lease, by reason of the failure of defendants to carry out and comply with the requirements of the licensing authorities, the Licensing Committee had refused to grant a license, for the hotel until such requirements hud been complied with, which plaintiff was compelled to effect. By reason of further alleged breaches of the lease by defendants, plaintiff had incurred legal charges amounting to £39 13s Id. Wherefore plaintiff claimed: (a) In respect of the failure of defendants to paint the outside woodwork and ironwork as covenanted, the sum of £42 IDs; (b) in respect of the failure to repair, the sum of £36 2s 2d ; (e) in respect -of the structural alterations made without consent, the sum of £10; (d) in respect of the failure to paint, paper and varnish the interior of the premises, the sum of £230 18s 6d ; (e) legal expenses incurred, £39 13s Id; for share of rates in respect of the premises, £l9 2s 7d ; (f) in respect of other breaches of covenant and loss consequent thereon by wav of general damages, £500; (g) the costs of the action ; (li) such fuuihcr relief deemed fit. V

Tho statement of defence admitted tho ownership of the hotel and the lease, but denied that there had been any neglect to keep the premises in good and tcnuntable repair and denied that structural alternations had been effected without the consent of plaintiff. On or about January 27, 1920, defendants had assigned the said lease to one Charles Redfern with the consent of plaintiff. Defendants alleged that plaintiff had misrepresented the business of the hotel at the time of making the lease, and that during the term of the said lease defendants and their assignees had made every endeavour to increase the legitimate trade and business of the hotel, but had refused to comply with alleged numerous demands for the sale of drink during prohibited hours. Defendants denied that they had been served with notice to repair the premises, and said that the hotel was kept in good and tenantable condition during the term of the lease. Defendants said that plaintiff,

without tho knowledge or consent of defendants, had entered into an agreement with William John Mitchell, an assignee of tho said lease, to carry out certain work in lieu of the requirements of a clause of the lease, and that the'said requirements were thereby waived by plaintiff. Further allegations wero denied, defendants saying, inter alia, that they* were not liable to plaintiff for any portion of tho rates on the premises for tho current year and that no notice or demand for payment had at any time been made upon them. After counsel had outlined the statement of claim, Reginald Thorrold Jaggard, architect, of Palmerston North, gave evidence that he had mado a thorough inspection of the hotel on July 1, 1924, and had found tho rooms generally in a bad condition. Exterior painting that defendants had been called upon to do had been done in a patchwork manner, while there were many little matters that required attention. Tho whole place was in a more or less dilapidated condition. The court then adjourned for luncheon.