COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4274, 1 December 1874, Page 2

COURT OF APPEAL.

Monday, November 30. (Before their Honors Mr. Justice Gresson, Mx*. Justice Richmond, and Mr. Justice Chapman.) DODSON V. JIACANDREW. Mr. Macassey for the plaintiff; the AttorneyGeneral, Mr. Jas. Smith, and Mr. Stout for the defendant. Sir. Macassey proceeded to give a further illustration with reference to the effect of the Statute of Frauds, the agreement not being performed in a year. He said, suppose a landowner entered into a verbal agreement with his tenant in December, that the landlord was to maintain .the premises in repair, and the rent to be paid quarterly. The tenant refuses to pay the last quarter’s rent, as the landlord did not keep, his agreement to repair, could not the tenant plead in defence in an action for rent the breach of the contract by the landlord ? The breach might be pleaded in mitigation, see Muudle v. Steele, 8 M. and \V. Mr. Justice Richmond: But there under the 4th section the demise is good by parole if it does not exceed three years, and besides is not the repair an incident of the demise. Mr. Macassey: Still this is a test of the Superintendent’s liability. Then again as to the point made in the rule, that the property is not the property of the province, though the reversion might not be in him, still he is like a receiver, and can sue or distrain for rent, and the tenant would be estopped from denying his title, and if he could sue and distrain ought not the tenant also be able to sue. Then again as to the Superintendent’s liability. The acceptance of rent was evidence of a new promise (Smith v. Eddington, Buckworth v. Simpson, and Cornish v. Stubbs). Then as to the second branch of the rule, asking for a new trial upon certain grounds; first, on the ground that Judge misdirected the jury. There were several misdirections charged iu the rule. The first was in saying that there was no doubt the plaintiff was in actual possession of the refreshment rooms. It was true Mr. Turton said he used a dodge, but still that amounted to eviction and trespass. There might be a distress without seizure, and .there might be conversion without actual seizure (Hirot v. Bott, 30 L.J. N.S. 25). The second branch was that the whole case turned upon the evidence in the agreement. That Was a matter of which the plaintiff should complain, and not the defendant. The third ground was that the Judge directed the jury that the payment of rent made the defendant landlord of the premises, and bound him by all the agreements by which Proudfoot and OUivier were bound. Cases already referred to answered this argument, and showed that the direction of the Judge was right. "The fourth ground, that the agreement amounted to a license to Dodson to remain in possession till the goods were taken by the incoming tenant. As to that, the direction was proper, because, first, in law, such a license would be implied ; and second, if there were no such license, in law, still it was no ground for a new trial, as it did not tend to give extra damages. Then as to the direction being correctly put as to the license, see Stansfield v. Mayor of Portsmouth, 22 L.J.O.P. 124. Mr. Justice Richmond : That was a case of a lease by deed. Mr. Macassey : Mellor v. Watkins was a case of parole license, and there is no distinction made between that of a parole license and a license created by deed. A reasonable time would still have to be given. The fifth ground stated that the misdirection was that the jury could give damages for excess. There was no misdirection, because the landlord had no right to unneccessarily injure the goods. (Chitty on Pleadings, 725, new ed.; and Newton v. Harlaud, 1 M. and Gr. 644. The sixth ground of misdirection was declining to direct the jury that the agreement was a personal one and not binding on the defendant, and the seventh was declining to direct the jury that the Superintendent, in ins official capacity, had done or committed, or had lawfully authorised Mr. Turton to do or commit the wrongs complained of. Both these grounds were involved in the points that were “taken, under the nonsuit, therefore he would not further comment upon them. The other ground stated in. the rule as to the wrongful reception of evidence, the verdict being against evidence and the weight of evidence, did not require much argument, as there was sufficient evidence ttfthow that the jury were justified in coming to the verdict they did. Mr. Justice Chapman There is one poin whether there is or is not a variance between the declaration and Dodson’s evidence, and no doubt the defendant’s counsel would rely on that. Mr. Macassey, in answer to that, might say that the material part hail been proved, and the part not proved is mere matter of legal inference, but it is quite competent for the Court now, if necessary, to amend the record so as to make it agree with Dobson’s evidence. As to the verdict being against the weight of evidence, there was something else in the evidence from which the jury might have inferred the agreement, namely, the fact that Proudfoot admitted that he had made an agreement such as was set out in the declaration with Walter, and there was no proper reason why he should not have made the same agreement with Dodson. Mr. Justice Chapman ; That evidence was admitted only as to credibility. Mr. Justice Richmond : It seems to me that admitting the evidence on the ground of credibility was a mere pretext, so as to get in the evidence that the jury might infer from Walter’s agreement that Dodson’s .was the same, and I should have been inclined to have disallowed it. Besides, the learned Judge warned the jury not to make such an inference. Mr. Macassey said the evidence was useful, at all events prima facie ; as showing that no different terms need have been made. (Henman v. Lester, 12 C. 8., N.S. 776). The Attorney-General, in opening the argument for the defendant, said the case must turn upon ■ the language, of the declaration. Though the pleadings in the. Supreme Court of New Zealand were more elastic than those in England, still a fair interpretation must be put on them. They ought not to be twisted to mean something different to what they apparently mean, (Surflen v. Smith, Court' of Appeal Reports 226). The declaration was intended merely as a . claim for breach of contract, and could -not be treated as a case of trespass of ' goods, as the part of paragraph six relied on for that purpose was put in as mere aggravation of the breach of contract. It might as well be said that assault was covered by the declaration as trespass of goods. Then as to, excess. Excess was not alleged in the declaration, and it was not necessary for the defendant to plead any justification, as under the Provincial Lawsuits Act he could avail himself under the general denial of any justification proved inthe evidence. (Stevenson v. Harris, Macassey’s Reports, 321.) But the declaration did not aver any excess, as there was no allegation of violence nor of negligence. Then as to the case being that of a breach of contract. Dodson’s evidence was the only evidence of the agreement, and the only inference that could be drawn from it was that the landlord was to pay at the end of the term, if the incoming tenant did not pay There was no inference of an extension of time or of a license to remain in possession. (Sucksmith v. Wilson, 4 F. and F.. 1083 ; Codd v. Brown, 15 L.T., N.S., and Farley v. Gascoigne, 7 Ex. 23 ;' and if that were the true interpretation of the agreement, then the plaintiff’s case was at air Vend. _ The provision for valuation was not 1 material. (Storer v. Hunter, 3 B. and C.) The mere fact of agreeing to pay valuation did , not give the right to the tenant to hold over. As to the case Cornish v. Stubbs and that class of cases, they were really in favor of the defendant, for they showed that whether a new agreement had been made or not, it was not an assumption of law but an inference of a fact, to bo found by a jury, and it could not be inferred that the plaintiff was to remain in possession till his goods were paid for in any event. (Oakley v. Monok, 35 L.J., Ex. 87). Besides, no such question as that of novation or substitution was ever raised in the declaration put to the jury, it being nowhere

alleged or found that the plaintiff became tenant of the defendant ; hence the case Oakley v. Monck applied. But it could not be said that the mere acceptance of rent hound the defendant to all the stipulations between the plaintiff and Proudfoot and Olliver, even if such a case had been made in the declaration, which it is not. Stauder v. Christmas, 10 Q.B. 135, showed that the statute of Henry did not apply to parolleuses, but only to deeds under seal. Buckworth v. Simson, 1 C.E.M. and E. 837, and Smith v. Addington were also strongly in favor of the defendant on the same point. Mr. Justice Eichmond : There does not seem to me any privity a court of law would recognise; still is there not one a court of equity would recognise. "Would a bill not have lain for specific performance of the purchase of the fixtures. The Attorney-General presumed not; the maxim jEquitaa sequitur ler/em would apply. It could not have been said that the courts of equity would have given to tenants the benefits which the statute of Henry is supposed to have conferred; besides, the case was not one for specific performance of a contract to purchase. These were tenant’s fixtures not landlord’s fixtures. (Gorton v. Gregory, 3 B. and S. 90 ; Grey v. Cuthbertson, 4 Douglas 361). Then again it was argued that this was a case in which a reasonable time to remove fixtures should be granted, but here again that was not the case made by the declaration, neither was it put to the jury. If it had been made, then eight days was surely a reasonable time. Then, as to the Superintendent being liable for tort, it was said that this was a tort in connection with provincial property. The Supreme Court of Otago decided in the case Eccles v. Taylor—(Macassey’s Eeport, 331) —that provincial property was property under the control of the Provincial Legislature. This property was not subject to the Provincial Legislature in any way. (See section 31 of the Immigration and Public Works Act of 1872). The property of the railways under this Act is vested in the Queen, but the management is under the control of the General Assembly. The surplus also of the profits was to be paid into the public account, and the evidence did not' show that the Superintentendent was anything more than the statutory, manager. But even if he did become the landlord, the property did not merely become provincial property in the sense in which that term was used in the Provincial Audit Act. It therefore followed that he could not be sued for trespass if it were provincial property, nor could he be sued for trespass if it were not provincial property, because that would be a wilful act—and under the Provincial Law Suits Act he would be personally liable. Mr. Justice Chapman : Though the ultimate dominion is in the Governor had not the Superintendent special property in the railway. The Attorney-General said the best test to apply was, did the Provincial Legislature exercise any control over the railway ? The General Assembly might have given power to the Superintendent to work or manage the railway, and yet not thereby have given any property in it to the province. There was no reference required under the Public Works and Immigration Act to the Provincial Council, nor was there assent required to the Superintendent taking possession of the line. It had been contended that these points could not be taken in moving for a nonsuit, but it was clear that if the plaintiff had no cause of action he might be nonsuited. (Sadlier v. Eobins, 1 Campbell, 256.) Again, the declaration alleged that the Superintendent acquired the property on behalf of the province, while the evidence showed the opposite. Mr. Justice Eichmond ; But the plaintiff contends that this is proper for a motion for arrest of judgment, but not a motion for nonsuit. The Attorney-General said it was not open to the plaintiff to show that, first, because his declaration is so framed as not to be demurrable, and here the evidence fell short of his declaration ; and second, there were several causes of action mixed up in the declaration. Then, again, if one count in the declaration be bad, damages being assessed generally, the defendant was entitled to a new trial ■ (Leatham v. Macandrew, Court of Appeal Eeports). As to the power of the Court to enter a nonsuit, see Shepperd v. the Bishop of Chester, 6 Bing. 435. Mr. Jas. Smith said the argument on the plaintiff’s behalf had proceeded on quite different grounds from the case made by the declaration or the case as put to the jury. The contention that the Superintendent was bound as a reversioner had been given up, and now a new case was attempted to be made out grounded on the doctrine of novation or substitution of the defendant for Proudfoot and Olliver; but this could not be done. (Surflen v. Smith). The cases on that ground of novation or substitution would not bear examination. To say that if there had been a deed, the defendant would not have been liable, but because the contract was evidenced by less complete proof—by parole agreement—that therefore he was liable, was a reductio ad ahsurdam. Here the defendant was not bound as the fixtures were not in esse at the time the agreement was come to. (See Smith’s “Landlord and Tenant,” 392.)

Mr. Justice Bichmond : It is admitted that the agreement does not run with a reversion. Mr. Smith said that the case mast then fail, as there was no proof of any new agreement, nor any allegation of it in the declaration. Tenancies can be created in New Zealand intf.r partis only by deed. It was true that there might be implied tenancy by law in New Zealand by the payment of rent, but those were only yearly tenancies without any express stipulations. Hence the eleventh ground set up in the rule. Mr. Justice Bichmond : If a cause of action is shown in the declaration, even though only an equitable action, are we not bound to give the plaintiff the benefit of it ? Mr. Smith said the only answer to that was that if the plaintiff were entitled to any equitable relief he had not proved it. (Paragraph 3of the declaration was read.) There was no proof in evidence of this. Then, also, the railway was not provincial property. (See McCaul v. Williamson, Macassey’s Beports, 365.) Then as to the 10th ground of the nonsuit, namely, that Mr. Turton’s action was justifiable because Mr, Dodson was a mere tenant on sufferance after the 31st December entitled the defendant to a nonsuit. (Jones v. Chapman, 2 Ex. 803.) Mr. Justice Bichmond referred to rule 80. Mr. Smith said they were exempted from the operation of that rule by the Provincial Law Suita Act. (Stevenson v. Harris, Macassey’a Beports, 325.) Mr. Smith also referred to Walker v. Godd, C H. and N, 594, as to the effect of payment of rent. Their Honors took time to consider their decision. The Court then adjourned.