THE COURTS.

New Zealand Mail, Issue 761, 1 October 1886, Page 9

THE COURTS.

SUPREME COURT.

Farelly v Evanson and Porutu.

(Judgment of Prendergast, C.J., delivered January 8.)

This action was tried beforo me without a jury. The plaintiff claims damages against the defendant Evanson for trespass, the alleged trespass being on land included within a lease from the other defendant (Porutu) to the plaintiff, and also within a lease to the defendant Evanson, made by Porutu subsequently to the plaintiff’s lease. With this claim is joined a claim against the defendant Porutu for breach of the covenant for quiet enjoyment. The defendant Evanson, in his defence relies on the lease and Registration under ‘ The Deeds Registration Act.’ Porutu’s defence is that the plaintiff's law was against equity and good conscience, and void without the certificate of the commissioner under the ‘ Native Lands Frauds Prevention Act,’ and the defendant Porutu also alleges that the lease to the plaintiff included the disputed por ion of land by mistake in drawing up the deed.

The defendant Porutu counter-claims against the plaintiff, and asks for rectification or amendment of thelea j e on the same ground of mistake, that the land in dispute, and subsequently leased to Evanson, had been included in the prior lease to the plaintiff, either by common mistake or mistake of Porutu, the lessor.

The plaintiff, in his answer to the counter claim, denies this mistake, and sets up an estoppel by receipt of rent after the mistake was known.

It is clear that the land in dispute was included in both leases; and I am satisfied that the defendant Evanson, before registration of His lease, had actual personal knowledge of the prior lease, arid that it included the land in dispute.

The defendant Evanson cannot therefore rely on the registration as giving him the better title.

The plaintiff was at the time of the trespass in possession under the prior lease, and though be had not then obtained, and never has obtained, a certificate under the Native Land Frauds Prevention Act, he had the legal title to the land ; and the defendant Evanson has not set up any answer founded upon any supposed equity arising out of the alleged mistake made by his lessor in the Lase to tbe plaintiff, The plaintiff is therefore entitled to damages for the trespass, but I think, under the circumstances, to only nominal damages, 40s. The defendant Porutu does not set up the alleged mistake in the plaintiff’s lease as an answer to the claim for damages for the breach of the covenant for quiet enjoyment; but, as the defendant Evanson had no title as a"ainst the plaintiff, there has been no breach of the covenant; moreover the mistake which

I think was proved is a defence to this cause of action.

Judgment is for the defendant on this cause of action.

As to the counter claim of the plaintiff Porutu, it was made out quite clearly by the evidence that the contract for the lease to tho plaintiff did not include the land in dispute 2 acres 3 roods 33 perches. I am satisfied that there was no misunderstanding in the contract, but that the lease was erroneously drawn up. lam satisfied that the defendant Porutu was under a mistake when he executed this lease. Whether the plaintiff also, when he took part in giving instructions for the lease, and when it was executed was under a mistake also, or knew that the error had been committed, and was therefore attempting a fraud is not clear. I am satisfied that one or other was the case. I think, therefore, that this is a case for rectification of the lease and proportionate reduction of rent.

As to the estoppel, the facts are that Evanson, after the trespass, was in possession of the land, and claimed to be so under his lease and the evidence shows that the plaintiff, though called upon to pay, and did pay, the the whole rent payable under the lease, yet did so with a full knowledge that the lessor was still asserting the mistake. I think that in equity the facts prevent the defendant Porutu’s act in claiming and receiving payment of the whole rent operating as an estoppel, or afford any objection to the Court decreeing a rectification of the lease by excluding from its operation the 2 acres 3 roods 33 perches in dispute. The rent agreed on was L2 per acre for the first year, L 3 for the next twelve years, and L 4 per acre for the residue of the term. The land actually leased was 27 acres, 2 roods 17 perches. If the land included in error, 2 acres 3 roods 33 perches, is deducted, the plaintiff’s lease will include 24J acres ; but I think the plaintiff entitled to have a reduction of rent for the 2f acres, and as the first year has been paid, the defendant Evanson must repay to the plaintiff Lo 10s, the over paid rent.

As both defendants were defended by the some solicitor and counsel, and it would be impossibte to apportion the costs, I think it a case where the Court should exercise its discretion and give no costs to either side. Reihana Tebekuku v Kidd. In this case the claim is for damages for breach of covenant contained in a lease to deliver up at the end of the term the house and fences, which, at the time of the commencement of the term, were standing ‘ in good and tenanlable’ repair, fair wear and tear excepted.

The action was brought in the name of one only of the covenantees, he in the writ slating that he sued on behalf of himself and the other covenantees.

The lessors with whom the covenant was made were ten in number, being natives to whom a grant had been made from the Crown.

The defendant had made no objection before the trial to tbe plaintiff so suing, but stated tbe fac’s as to non-joinder of the other covenantees in his statement of defence.

The plaintiff relied upon rule 79 as authorising him to sue on behalf of all the parties interested, and upon the decision of Blackburn, Q.uain and Field, J. J. J-, in De Hart v. Stevenson, L.R., 1 Q. B, Div 313, on the similar English rule. In that ease it was decided, even on objections raised before trial, that one co-owner of a ship could sue for himself and the other owners for freight and dues for the use of a ship. It does not appear from the reports of the ease referred to how numerous the parties were. It is, however, unnecessary to decide whether the decision ought to be followed where the objection is taken before trial, but as in this case the objection was not taken by application so the Court or a judge before the trial, and was raised for the purpose of preventing the trial proceeding, and as it was not shown that the addition of the other covenantees was necessary for the determination of the real matter In dispute, I think that tbe non joinder of tho covenantees ought not to prevent Ihe trial of tbe action, and judgment being given. But if tho olher covenantees, or their representatives, are not made co-plaintiffs before the judgment is entered, the amount of the judgment is to be paid into Court, and not paid out without the order of thr Court.

As to tbe damages claimed for the breach of the covenant to leave the fences in repair, the conclusion I arrive at is that the fence from the house to the railway was not in existence at the time of the lease, and consequently that the covenant does not apply to that fence. As to the other fences, I conclude that there has been a breach, but that the damages recoverable for that breach must not include tho whole amount which it would take to clear the gorse where it has spread, at a distance from the fences. The evidence is very conflicting as to the amount which it would cost to put these fences into good and fenantable repair. I conclude that the fair amount to award for the breach of this covenant is fifty pounds. As to the claim which was added at the trial, namely, that the defendant wrongfully permitted waste to the land leased by suffering the same to become over-grown with gorse, for want of needful and necessary cutting and trimming tbe fences. Plaintiff contends that the injury done to the land is the result of the defendants’ allowing that to happen—namely, the spreading of seed from the gorse, which might have been avoided by a reasonable amount of previous precaution on the part of the tenant, and that for that he l is liable as an act of permissive waste.

If he had wilfully sowed this seed it would have been voluntary waste, for the eradication of gorse is costly, and takes much time ; and I think the permission of the seed of this plant to spread could have been by reasonable industry prevented. The nature of the plant of which the fence was composed was such that the tenant must have known at the time he took the premises that if not attended to the seed would spread and injure the land. The came seems rot unlike that, in which it has been held that a tenant for life is bound to prevent the injury to a river bank by a gently flowing river. See 1 Inst. 53 b ; Viners Ah., Waste (1). From a sudden flood the lessee would not be bound to take precautions.

So also was the tenant for life liable at common law in the case of damage from accidental or negligent fire. I therefore conclude that the plaintiff is entitled to damages under this added cause of action, and I give judgment in respect of this cause of action the sum of £ls. Judgment, therefore, is for £65 and costs, to be taxed on the lowest scale.

IN Banco,

Wednesday and Thursday, Septemsep.

22 and 23,

(Before their Honors the Chief Justice and Mr Justice Richmond.) HAUL V. PHARAZYN.

This was a motion to reduce the damages awarded in this action by the jury ultra the £45 paid into Court be reduced to one

farthing, on the grounds ; (a) That no damages beyond unusual carnages other than

costs of investigating title can be recovered

' for breach of the alleged contract; (b) That the action was presented to the jury as an action ! for breach of contract after an offer by the defendant’s counsel to permit the statement of ' claim to be amended by alleging fraud and 1 deceit, and a refusal by the plaintiff’s counsel 1 to make such an amendment ; (c) That the ' plaintiff’s counsel refused to amend the statement of claim, so as to preseut a case of deceit ; (d) That the issues as to representation ought not, after such refusal, to have been submitted to the jury ; (e) That the learned judge, after such refusal by the plaintiff’s counsel declined to permit an issue of false representation to be submitted to the jury, and in the alternative that tbe damages ultra be reduced to £IOO on the ground that the other items allowed by the jury in their assessment of damage are too remote. Tliefacts of the case will be in the recollection of our readers. Mr Bell, in support of the motion : Although the defendant said that the lease to Bidmeade was conditional, the jury have found it was not, and the Halls knew that Bidmead had an absolute claim, and at the time the defendant made the statement the plaintiffs had no promise from him for a lease nor until May. The statement of claim charges nothing but breach of contract, and it is cot open to the plaintiffs to say that it is an action for deceit, nor is it one. Falsity and fraud are the essence of deceit. Bain v Fothergsll, L.R., 7 H.L. 158, i 3 now the law on tbe subject overruling Hopkius v Grazebrook. In a case like the present, of breach of an agreement for sale of property, the purchaser can only receive the cost he has been put to in investigating the title, and there ‘ is no distinction between lea3e and sales of land. Locke v Furse, L.R., 1 C.P. 441. (Mr Justice Richmond : Slack v Lockhart, 1 N.Z. Jur. App. 1) ; Jolliffe v Baker, 11 Q.B. Div. 255 As to the right to have the damages reduoed except as to tbe loss by the sale of cattle, Hedges v Litchfield, 1 Bing., N.C. 492. The plaintiff has not incurred any of the damages allowed in Flourean v Thornhill. Mr Brew for the plaintiff’s : The action is founded oa what amounts to fradulent misrepresentations, and the facts show that when the defendant represented to the plaintiff’s that Bidmead had no valid agreement, he knew he had not, or if he did not know he might have known. The defendant was therefore guilty of fraud, or of such recklessness of assertion as amounts to fraud. Shin v Broucher, IdeG. F. and J. 518. The plaintiffs had no opportunity of making enquiries and relying on the defendant’s assertion, they expended money. It is not a representation as to title, but of a fact. Brownlie v Campbell 5 App. Oas. 925 ; Burrows v Locke, 10 Yes. 470. The defendant put the plaintiffs irto possession on the 30th June. This amounted to a surrender of the former lease and the commencement of a yearly tenancy. There was therefore an implicit covenant, and damages are reasonable for the breach of it. Mayne on Damages, 198. It cannot lie on the defendant’s to say the lease did not commence, in the face of his letters, Sedgwick on Damages, 316 ; Rodgrave v Hurd, 20 cb., div. 1. Mr Bell, in reply : In Slim v Croucber the misrepresentation was that of a third party, which distinguishes that case. The plaintiffs bought not on the defen lane’s representation, but on his promise to give a lease, and the representation was long anterior. There is no averment of scienter, and it is not open to tbe Court to treat the case a 3 one of frand. No covenant of quiet enjoyment can be implied in the letters. The plaintiffs took the agreement witb a full knowledge of Bidmead’s adverse occupation. KHngenstein v. Walters, N.Z.L.R., 3 C.A., 18. Judgment was reserved. BLACKBURN V. CARLILE AND m’LEAN This action, which was for negligence as solicitors, was tried at Napier at the last sittings, when a verdict was found for tbe defen- ( dants. Mr Edwards moved for a new . trial. Mr Chapman for the defendants. After argument, judgment was reserved. IN RE HUTCHINSON. This was an application by the Deputy Official Assignee at New Plymouth for au order directing Mr Hutchinson to repay certain sums deducted by him for costs from money which he recovered ' on behalf of a man who shortly afterwards became bankrupt, on the ground that these sums were not chargeable against the bankrupt, and also for an order to tax the bill of costs rendered, notwithstanding payment. Mr Edwards in support of the motion, Mr Hall contra. After argument, their Honors refused to interfere in the first branch of the j rule, thinking that the Official Assignee should raise the question, either by action or by proceedings in the Bankruptcy Court, but made an order for the taxation of the bills, and fora refund of any money found to have been overpaid. Both parties to pay their own costs.

Monday, September 27. (Before their Honors the Chief Justice and Mr Justice Richmond.) re , A SOLICITOR. After a short argument, an order was made to attach a solicitor for not answering certain affidavits, the writ to be in the office for ten days to give the solicitor an opportunity to purge his contempt or explain. HOLMES V. COLLECTOR OF CUSTOMS. Certain clothing was imported for the use of a corps of Volunteers. The clothing consisted of tunics and other clothes, belts, etc, The Collector of Customs required duty to be paid, and the same was paid. This was an action to recover back the duty. Mr Brown, for the plaintiff : Under th.s Tariff Act, 1882, these are exempted feam duty as accoutre-

ments. This term includes clothing as well as belts, pouches, etc. Under the Constitution Act, section 61, goods imported for H.M. forces are free, and Volunteers belong to H.M. forces. Army Act, 1881, section 189‘; Volunteer Act, 18S1. Accoutrements are not confined to military accoutrements. Mr Bell, for the defendant : Accoutrements must be confined to trappings other than c othing. Accoutrements are distinguished from clothing ia section 153 of the Volunteer Act, ISSI. Mr Brown replied. His Honor the Chief Ju-tice : I think there is nothing to limit the vague teim of accoutrements to articles other than clothing. The term is sometimes used in a wider and eometimes in a narrower sense. In this Act, I think, it is limited to military accoutrements, but not so as to include coats, etc. There is no reason why it should be applied to one part of a volunteer’s clothing and not to another. Arms and accoutrements are exempt, I thin K—this includes clothing—but must bo limited to military accoutrements. Mr Justice Richmond : I think we must limit this term to military accoutrements, but it is wide enough to include clothing. Tne word has a more extended meaning in the Tariff Act than ia the other Acts. By agreement, judgment for the plaintiff, with costs, without prejudice to the light of the defendant to appeal.

POWELL V. HARCOURT. (Before Mr Justice Richmond.)

This was a claim for damages for conversion of fixtures. The same question had previously been before the Court when the plaintiff was nonsuited. He then begaa a fresh action which was tried, the evidence was left to his Honor Mr Justice Richmond. Mr Hutchison, for the plaintiff: A question o: estoppel is raised that we could not briug a second action, but this is not so, Ord 41, Rule 6. Leby and Foulkes, 243. Mr Travers : Supreme Court code, part 3, disposal of action, '* by nonsuit.” There is no provision for commencing a fresh action. The nonsuit is a final judgment subject to the right to go to trial on the same record. Everest and Strodeon, estoppel 30, Rule 46 of 1876, and Rule 1 of Ord 26 1883. He was willing that this contention should affect ccsts only. (Mr Justice Richmon i : I am not only disposed to look at the present English rules by way of illu- trafiou. The presumption is tbe common law is not altered; the plaintiff could begin a new action unless the common law was altered. There is the difficulty that if judgment is given for the defendant in the second action the plaintiff will be estopped by that in the first.) Judgment reserved.