COURT OF APPEAL.

New Zealand Herald, Volume XLIII, Issue 13160, 25 April 1906, Page 6

COURT OF APPEAL.

ACTION TO ENFORCE SPECIFIC PERFORMANCE. [BY TELEGRAPH. —PRESS ASSOCIATION".] Wellington, Tuesday. The Court of Appeal sat this morning to consider the case of Hamilton Gilmer v. 1 Elizabeth Florence Crawford. This case I came before the Court of Appeal (Mr. Jus--1 t ices DennLston, Edwards, Cooper, and Chapman) as a special case, removed from : the Supreme Court by His Honor Mr. Jusl tice Cooper. The plaintiff is the assignee of a lease which the defendant granted to - one William Goo. Ryland. In this lease was inserted the usual clause binding the lessee to buy beer from only Staples and Company's brewery, and also a clause binding any assignee of the lease to the same effect. The term of the lease was ten years, but there was also a covenant bv the lessee to renew the lease for a further l>eriod of ten years. The action is now brought to enforce specific performance of the covenant to renew, now that the term of the original lease has expired. Mr. Skerrett- appeared on behalf of the plaintiff, and Mr. Martin Cliapman and Dr. Findlav for the defendant. Mr. Chapman opposed the motion, on the ground that section 35 of the Alcoholic Liquors Sales Control Act, 1895, has declared that any covenant binding a- lessee to buy beer from any one person or company is void, and sub-section 2 makes the same provision as to leases executed prior to the passing of the Act, that is, that the lease shall be read, "as if such covenant were omitted therefrom." This covenant is what is usually known as the tied house covenant. Mr. Chapman contended that as the Legislature has made the clause illegal the whole lease must be considered void and of no effect, and, therefore, the lessor is not bound to renew. Judgment was reserved. AN INSURANCE CASE. The case of the Royal Insurance Company, Ltd., v. Albert John Coleman came on for hearing this afternoon. This is an appeal from the decision of the Chief Justice, delivered in January last, and which was given in favour of the plaintiff for £500, the full amount claimed. Plaintiff was a storekeeper at Taihape, and in November of 1902 he made a proposal to the Imperial Insurance Company that they should insure his stock-in-trade for £300. The proposal was as usual sent to Wellington by the local agent of the company for the board to consider the advisability of taking the risk, thus causing delay, which • the plaintiff resented. Before he received an answer to his proposal plaintiff went to the agent of the Royal Insurance Company i and made a similar proposal to them. The Chief Justice found that Coleman was not aware at the time that the Imperial Company had declined his proposal, as, in fact, it had. In making his proposal to the Royal Company Coleman was required to answer a question, in these words, ' Has any proposal for insurance of property now proposed, or any part thereof, been made to i anv office and not been accepted, or has i any such insurance been declined or cancelled?' To this the plaintiff answered, "No." The stock-in-trade was destroyed ! by fire during the currency of the policy ' which the Royal Insurance Company ■ granted, and Coleman brought a claim 1 against the company for the full amount ■ of insurance, and succeeded for the full amount. The question raised for the ap- : pellants by Mr. Dean was, Does rot such ' material misrepresentation, even though boua-fide, vitiate a policy':" Mr. Martin Chapman appeared for the respondent, but was not willed on, the Court being of opinion, after hearing the grounds on which ' the appeal was brought, that Coleman had answered the question fairly, and, there- 1 fore, he must succeed. The appeal was dis- 1 missed. '