SUPREMECOURT CIVIL SESSION.

Otago Daily Times, Issue 2059, 10 September 1868, Page 2

SUPREMECOURT CIVIL SESSION.

; ::: Wednesday,. September 9th.v --.'.'. .'■'-' - (Before His BLonor, Mr Justice Cnapman;) The Special Jurbri summoned attended, and were released for the day; ; ,:. O»BEt.£ % J.9NE& —Jllr Srply^hies' app^libd »to ihave this- case .reinstatedUon the rlist. He' urjged the hardship^ -tci'the jEjlamt^ wMoh-woaid^■result :s£ lifer b Teing:cilrarge'd;" with an indictabler offencej ie was 1 'compelle;d to remain' for: three months without ,ajakiopportunity of clearing ihiaKcnaracter."■■■■•"•;.{"-■- ■ ■■].':■.:.■?.'.. ■>■.-. :..!:.■.•.•.•■...,•.;

"THe. Judge said that the application, must be made in Chambers. • : .-

SiPECIAIi: PERFOjRJtAKCE OB"; AN AGEE&-

liOGAtr vi «. Cea WFokb. r—Mr ■ liacassey (with, himj^^ Mr'Howbrth) appeared-for-the plaintiff, John Logan, secretary- ;fo>f.the Superintendent $. and Mr Barton-was for the defendant, James Robert Crawford, BUrgeOlli' vi !-:^:i-.,;..-f;-i-.0-;..- ■•/. ■'■■■,; :f-v.V - ■

; Therj auction t was .an Equitable one,^|bir the specific performance of m agreement; .for a leasq of premises in Princes street, j The case for/. the.; plaintiff,.; as made iron~\ '^he/declaration^ was this—He is the owner I ,6f ..land in Princes, being part .'of' section 31, block 15, on the record map! ofthe' cltjr^.;ln':May, '■ 186£ he commenced! :(the ground havingVbeen cleared by thej fire on .the Ist April) to erect a two^storey; :t)uii,dmg v bf brick/, the lower part .being; intended for two shops, and the-upper! part for?!a dwelling house. In the same! month, a verbal agreement., was made: with the defendant,for a lease of :„ one* of j the shopsyfor two years fronvthe delivery! of possession, at L 2 a week. On the 20fchj June, a memorandum'df agreement to this; effect was signed by the parties :—They,; having previously agreed for a lease of the; shop, for two years certain, at L 2 a week,: a further agreement was now made. The: dwelling house " to be fitted up as showri by Dr. Crawford to,the architect," and a.kitchen to be erected below; the rent to be fixed by arbitration; a lease for the whole, for-fiver years,^from Jhe. Ist, iJiily, 1867, to be prepared, and Dr. Crawfbrd to execute it. The plaintiff named'C. fl.i Street to act ;on his . behalf, in fix( ing the rent, and the defendant named— 4 Craig, of Craig and Gillies, cabinet makers.! The plaintiff had the work completed ;as required. The defendant .took possesT : sioh' of the shop on 6r about July Ist | of the dwelling house, on September* 16th j and of the kitchen on the., Ist February, 1868. Mr Street has always been ready and willing to proceed to fix th^ rent; but Mr Craig, with the knowledge and by the direction of the defendant f has refused to proceed, although the defendant has remained, and remains, in possession. The plaintiff had always been ready to complete'the lease, and to make fair allowance for the.: period after the fixed date during, which, possession was not given of the house and kitchen ;" but the defendant had refused, &c. Wherefore, the plaintiff prayed taafc itmight be declared that the agreement of|' the 20th June was binding ; that the d£| fendant should be required to. allow Cra^ toiproeeed fco fix the-rent, .afid^hjat ia; default, it shouldibe; fixed by^ the. R|gis;trar; : that the IlegLsWar "shbnld-alsolap--" prove of a' draft lease.; £. and'ifliat^the.lda? fendant should pay taxed - costs.-^The; defendant pleaded a denial..of' ;^]l^tb\e, material 4 allegations '■■ ; in the except in so far" as that he made tsßi agreement1 stated, and took 'possessions^ theshppjin/ the month of May.' ;; r^/ ,- ; '-,; '$;": * Five issues werestated ;: ; and thVse t^ejury had to try. v ■;' ..-..■,.;". - r 1

The evidence was wholly matter of n!ot interesting detail ;- and most of it would be ■unintelligible if- published, because 'of its preference to ; plans;

John M'Gregor, G.E. and architect, produced his plans from, which/the build-ing-was erected. ": He was presenfrwhkit; ■the-memorandum of agreement wassigned: Before thai, the defendant-had* orally informed him what he would, require _tp have done in completing "the d-weliing-house. 'The defendant saw the plans several times before the. memory

,dum. was signed^ The x plans originally ysEpwed; threc r rpoms upstai^ frMifcrwere feed, afllaske^^b^fcha Thfei lower storey of:the t>reimiaea^as «y for> possession; beinetaken^onthesth;July, 1867;! and at that time; tlio franung of the partilipnsjfor the four upstairs rooms was being put tra ii the work' had- not been completed! "A:.^npboard^had? -also: a been^fitted up ma back room on the lower storey, which he (M^GregfoJ nnder-.stood--the- defendant -intended^ to useras a kitchen. Th&uppetparfoTOe'pre-^ mises was now in the same state as it was on the Ist September.. 7 Sft»ad«ertised for' tenders^ortheerection, of al^tchinpaff^ kn^dditionto the house? tended were' to-J© received: up to the 31si [December - W-^ c^act: was completed on the 31ss January. The contract price ; L 35; ;10s, and Ll ,0s "6d was paid for. ;;;He.understood, that there had been .delay to the kitchen, witV the" ns?? P *:?t% defendant-at all events. ' the.defen3anttold him that lie was willing' t-o wait -a twelvemonth for the Mtch^ &pd ;to (m iM'Qregor) r wr6te a' note-to thesplamtiff, to that effect/.. '■■.' V": r - : ) 3Vfr Biarton 'pbfeqted to the reception o£ •P^Jf-r.^i^PSr. Jn explanation of what was shown-to the architect by Dr Graw* ford," or as td'ithe'fixing ofrent. The agreement was one under thb 4th sectioi SMutecbf/Frauds,Cand was^insui&V : ;cient, and no parole evidence, in explanac;tipn,ofits.terms,.flpuid : be given, r.-•* v;; 1 miM a question: hereafter,,; present, we are only tmnff ;the issues stated. " .j^3ij cMriJarton agr^ec(^,^e; dxily wantect ito save Himself frdm any, objection here^ [aftery that he> ha* not objected to the re•ception of Buch evidgii^, ', s ' ' " " ; Mr : ;Mi<?reg^s;^mlnaiion continued* ,Thc^ defendants, sientv him-two-- lists.- afcUeast, of thingaha^eqtiireditd be done to 1 - 1 t 9^Q wai.rpceivedcin Augusk landon^on February 10th*. The latter [was headed, f What. is.necessary to >be done to premises, in Princes street, as per ■agreement.% Thelati^cqmprised— Four, jrpprns an^d lobby, io,j)e papered j- doorar •and wood-wprk,to : be; painted.oak;" water jlaid intp^i^he house ; ;r sink; ; and pipe, ta cany waste.^awayi, £oj)nial oven -m i l?W|n(V.yWft«ft 1 locks Repaired j.- water | closet to be removed, and, barrel, sunk- & i^ot^pa^d.J. drain in yard to be opened"" |up.:;; ;He (M'Gregor) sent the list-to th& IWup&gyiVfty- .a,;statement that the list|WMiiiß^telJigible i tp, i ;lmn. i fle^laiew" :nothing of such an agreement as.seemed |to be.referred fe. -None of the things in. ! the;listihadrbeenipointeai. out to him, by ; the defendant, before the signing of-the : memorandum of 'agreement.'-—• By 'yWt" \ Barton : Generally,;'he, considered the ; premises ~tp ,be tenauiable. ;.■ T kaewr ! nothing; whatever abipuit !the • R li^hpb3,,conlrap^^^' a bjaa^ ,mg, didnot;thinkthafewhen-^he left the i premises- ; the houa&v part was dfifc^fair occupation by a person in the p*cfsitioW*a£ the . defendant. -^ He? (Chisholm) was re-feriringT-to^September of last year;" fee would hot rtmdertake to say that the place waajaat tenantable £n.JMay. last« !I'.'2-. J_ 1. George: Dutch, carpenter^ whowasittie sP»ifiactpr :fer;a%)-kitchen^saidT-I ms, present at: an; interview betWe^n '{tfee plai«tiff?andithe-defendant^ in the plain.tiff's oflfice;'The plaintiff offered tp allpw the:defettdant, but ; 6f,rent, LTfbr pape^-ing-'theitupstairs a-ooms. The defendsat spoke of wanting the water; laid on; antL having some.plasteringdoneipn the wall opposite thftfoo^of Then, thav plaiiiMff^agreedH^-anpw 1 the defendants Lia ou^p|^e|^Me^fendan* |id^t& snakaiaD^ the plaipe'miialthe ajnderstahdingTthat th&- de~ fendant was to spend LlO as hepleasea. This interview was about a week before 1 completed 1 my contract, and; that was about the latter end of January; Baring the interview;1 the defendant objected to the position of the closet; Afterwards' he -said-to me, that if the closet was kep> for fii^family's iuse,:>it -would ]dpj;well enough,,,but ihat.it ; would not do*as tMngi then stood.—BylMr Barton: LlO wbnidbft safficientfoTpaperingtheroomswithapaper suitable to sucha building, for layingoit water, and plastenng, the bit of. wall. There was no proppsaL tha£ the plaiafifr should. >a Jlpw^Llo, and that the defendant should spend H2o.' t have no doubt ife would cost L3O to.do all that the defen.dant ta}ked;of doing ;; for he talked of Eain.i^Qg upstairs, and of other things, r contracted the closet, by direction of the plaintiff,' without any plans;/ The closet is under the outer part of the kitchen.-— Ite-ezsmiried : ;lt~is fust where one stood before the; fire. Jt was^hen in the. yard, which is ' n6w covered by "the ?kTtcsLeij. Beforethefire, as now,' Mr Tbleld occupied the shop adjoining tbat of the defendant.- ■:

W. Tofield, watchmaker, and Charles Henry Street, -land- agent and valuator^ wejrejeach examined and cross-examined, at "TIE ; Siree^stete& the circumstances under which he" gave notice to proceed to value for rent, whiefe he did ultimately in"the absence: of Mr Q^g^^He first-estimated L6O. as a fair rental, on a five years,' tenancy^ taxes and present and future, to be paid rhy- the tenant. .He found; afterwards .that, he had gone- beyond the reference-bond in the matter o£ rates- and^ taxes ; and afterwards, h& estimated the rental of the upper part of the building, and the kitchen, at Ll 63 a week, on the. basis -of a tenancy for fiva years, commencing from" the "Ist July. When,he,,was valuing,, the defendant was present, Mid complained as to the floors. .Hel(Sireet) admitted that the. floors were rather roughly laid ;r and the defendant did not make any. other complaint. Tha waHs; wanted papering, undoubtedly ; biife that' Tie (Street) understood the;plaint£!£ to have agreed to: do." He did not notice that anything else was necessary to maka such a building fairly tenantable.

Daring Mr, Street's evidence, Mr Bais ton asteS "questions leading to evidence of;W.fresh 1 or, a .modified agreement.—MeMacassej: .pbje.cltei.r-The;Judge "th<j*tghfe the evidence-not "admissible. The* cas» had been several times before him, bui* he had before heard anything to lead 'httn to suppose that it was;; at Igllj disputed that the signed docu— inept was the '.-. agreemenL—llr. Bartoit ;;s^id the case only came into his '^andslon Saturday ; so that .he was not ; to; anticipate all the eviden.ee. H& f should be contentif a note was taken that •he had tendered evidence: ia N yariatipi^c:i: the —The Judge sai3;t&M;liat vwould take such a note. .--' V^;^

. ;John Scanlan, oil and color merchaiot, •made an .estimate in December, of which hehad his then made pencil; memorandum^ It' was—Paperang. parlor, L 2 10a; twosmall bedrooms, iJt 4s; ceilings, lA ; staircase, LI 6s; and something which, he could not now f read or jremember, LI i •total,, L^. He would have underiikea the work for that sum. , The staircase was to be colored only. He did not da the'work.

■ rjJofcn--Logan,- the plaintiff, stated— A. ifoHiiighi or three weeks before the agreement- was signed, the defendant called upWme about the iiouse part o£ this building; and the conversation betweea. ■us resulted in my telling, him to. go to^aa architect, and to point otit how he woul&. like to have the upper storey divia^^

Sefora I was consulted again, the work traa in progress; and when the agreement "Was signed, it was understood between-us that the plans fully carried out the defendant^ wishes.; * 'After'the agreement Was -signed,, the, defendant spoke of having a servant's: room erected over the kitchen ; but-I objected to any such thing, because it Woiildall have to come down, when I built bn.the land at the back.. The kitchen was not-commenced sooner, because I told the defendant that T should' probably build on the. backTahd in.'about-!a year^ 'and that then •he could have a kitchen, , or.. any.; other rooms he liked.; (He '. told •me that lie VpAild ixoi want the kitchen for a twelvemonth^ When the erection of the. Mtclien'as, it now is was proposed, I pointed out. .that;.it. would take the light trom the1 consulting room; -and he distiflctiy said .that it • did not matter.^-H [The witness detailed..what. passed ;be- i ■•tweeh himself and the- defendant; in the; presence of Dutch. -rr-Mr Barton; pbjectecl j to the evidence as tending to vary the | iheniorandum of agreement, or to set np; a r substituted; agreemehti-i^The Judge; .thought,the evidenceadnii«ssibM.] .Inthe; presence of pntcit, I said to the^defendant, over .and' 6ver':agaih; that, as far' •as thei agree'meht was .'concerned, I had; done everythihgrequired-by-!it.'< The defendant, as to the papering, urged that,; if T<4°n,e at' once,!!h6thirig. more, of, thej •kind, would be required during the ten-; '•ascfcyi' '] I said that as, before the kitchen; was begun, I had to allow him^LTj ijout-of: rent for the, papering, lie might; ystin expend that. sum. He. urgedl'a gbodl "many things as necessary tpi b,e,'dprie;byj :3iim^ and when; I said that he .might spend; -XilO;oufcX)f;rent,,ha went away>in capital1 iiemper/ I Kad..said,.as-to the.LTjthai the defendants 'ntvwt - uhdelcstand that I was, in no way. bound Jo/a^ow.the. money. ~rjrjpp^ witness w^ upon. a number of ietters^^hich^wjere read;]" r ■ Jt r being, after; half-pasjt/;four,, o'clock when the plaintiff's examination-ih-chief was conclude.d.,: the Gpurt, was,adjourned until ten o'clocls:'to-day'(Thursday). \