SUPREME COURRT.

Otago Daily Times, Issue 14245, 20 June 1908, Page 15

SUPREME COURRT.

•* - CIVIL SITTING. Friday, Joxjs 19. (Before lii 3 Honor Mr Justice- Willimns.) I'ATKHSON V. GOIIE A.VD AXOTUEII. Action for tho possession or an hotel at St. Kilda. Mi W. C. MacGregor ami Mr J. IS. Callan, jun., appearctl for plaintiff, Annie Pat-oi'fcoii, of St. Kilda, widow, ami Mr B. .Solomon, K.C., and Air ;l. (J. .Stevens '■ for defendant, Walter John Gore, of Si. ; Kilda, and Ethel Rek'tca. do Costa, of Wellington, exeaitors of the will of Sarah - lai-roll, deceased. Plaiiitilf alleged in her statement of claim that she waa owner of the Ocean ' Beach Hotel, St. Kildu, and thiil on June ' U, 1906, tho late Sarah Farroll was in \cupation of the hotel in terms of a : Cy/toiKY that expired on July 1, 1908; tJiat on Juno U, 1806, Sarah Farrcll induced plaintiff to sign a document purporting to ho made between the plaintiff . at "landlady" and Sarah ■ Farrcll as ■ "tenant." This document was thc.n set out, tho effect of tho first clause being that tho landlady agreed to let and the tenant agreed to take the hot«l for a term of live yours from July 1, 1908, at a weekly rental_ of £3. The statement continued that it was prepared on tho instructions of Sarah Farroll l>j Ethel Rebecca de Costa, then Ethol Rclxcca Benjamin, who was acting as solicitor for Sarah Farrcll only. I'laihtilF had no independent advice or assistance in connection with the document, and was not aware of the content's and legal effect <?f it when she signed. Plaintiff signed tho document under the I l)eliof that the tenancy created was a personal lease to Sarah Farrell, and would come to an end on lior (Mrs Farretl's) death. Sarah Farrell died on November 13, 1907, leaving a will dated April 13, 1902, also prepared by Ethol Rebecca de Costa; anil as defendants were the executors named in the will, probate of which was granted on December 6, 1907, defendants now claimed that the tenancy purporting to be created by the document of Juuo 14, 1906, vested in them as executors of the will, as portion of tho estate of Sarah 'Farrell. Plaintiff claimed to have (1) the document dated June 14, 1905, set aside or rectified, (2) a declaration that she was entitled to possession of the hotel from July 1, 1908, (3) to have such further or other relief as the nature of the case might require, (4) all necessary accounts and inquiries, and (5) oosta of the action. - "The defence filed was'.to the effect that neither Sarah Fan-ell nor any other person induced plaintiff to sign the document dated June 14, 1906. It was denied that Ethel Rebecca de Costa had been acting as solicitor for Sarah Farrell only. . Defendants did not know, and therefore denied, that plaintiff had no independent adrioo or assistance, and they denied further that site was-not aware of the contents and legal effect of the document when sta signed ■' it. Defendants also denied tho statement that plaintiff signed the document under the belief that the tenancy it created was a personal lease to Sarah Farrcll, and would come to an end at her (Mrs Fan-ell's) death. Mr MacGregor said plaintiff and the late Sarah Farrcll wore both widows. For some years before the deaths of their ' respective' husbands they both lived at St. Kilda. The Ocean Beach Hotel was occupied by Mr Fariell as tenant to Mr Paterson.' Tho families • were- neighbours and ■ friends. The years passed, and Mr Farrell and Mr Paterson died, and under their respective wills Mra Farrell became, entitled to the tenancy and Mra Paterson to the ownorship of ' : the hotel. In the middle of June, 1906. Mrs Farrell,. who often visited Mrs Paterson (the two ladios being close friends), asked Mrs Paterson to givo her another lease of five years, (Counsel interpolated that the rental of £3 which held under the former agreement was not now. lip to the value of the premises. It would bo now worth between £5 and £6.) Mrs Peterson replied that it would bo better ..to wait till the last year of the lease (1908), but under further pressure she agreed. Mrs Farrell shortly afterwards bought along a' yonng fellow who was Miss Benjamin's clerk, and he read a document anent the lease, which Mrs Paterson signed. This document made no mention of assigning or anything of that sort. In faet, there was nothing in it to lead a lay woman to think that it was anything but a personal document between plaintiff and her late _ lessee. There waa a. clause in it inhibiting the lessee from sub-letting without permission, and plaintiff thought that it was a lease to Mrs Farrcll, and that sho could prevent onvone else from holding such, lease. Evidence was given by plaintiff, Albert Hoare, Henry Paterson, and Eustaco L. Maoassey Mr Stephens then opened tho case for the defence, and in doing so said defendants would be able to prove that MrsF,arrell had put the place into complete repair in, pursuance of an arrangement which Mra Paterson said existed between them. Mrs ■ De Costa would be called, and also the young man who -witnessed the signature, and he would describe what took place and would eay that Mrs Farrell asked Mrs Paterson she understood the lease, and Mra Paterson indicated she did understand it. So far as Mrs De Ocsta was concerned, the fact that she acted in the preparation of the lease without any 1 solicitor acting on behalf of tho lessor he (Mr Stephens) would point out that that was tho course followed in connection with the preparation of the previous lease, 'Airs De Costa then preparing tho lease- for both parties and witnessing the signature. Mrs> De Costa would say that she had no personal interview with Mrs Paterson at all. With reference to tho conversations that had been sworn to,as having taken place, it_ was quite evident that Mrs Paterson misapprehended the effect of the statement Sado by Mrs Spooner (daughter of tho la'.o rs Farrcll). Mrs Spoonor never at any time gavo Mrs Paterson notice of her intention to quit. She told Mrs Eatereon that the trustees were about to sell the plore, ftnd that she (Mrs Spoonor) -was giving up the business. Evidence was given by Ethel Robecca De, Costa, John Corson, Walter John Gore, and Winifred Elizabeth Spooner, who said thai sho told Mra Paterson that under her mother's will everything was left to her. in trustees' hands. On another occasion witness told Mrs Paterson she wis going to sell tho -lease, and if there was anyone sho preferred they would get the first chance, Mrs Paterson said she had no ono she preferred, and that if she was 10 years younger she would take the plaee herself.—James Wren also gave evidence. This concluded the case for tho defence so far as evidence was concerned, and it was decided that legal argument would be heard on Monday morning at 10.30. IX CHAMBERS. j His Honor granted probate of the wills of the following-deceased |>orsons: Joseph Henry Haugliton (Mr Bartholomew), Hannah Gordon (Mr Stephens). James M'Aulev (Mr Creagh). John William Mawor (Mr T. M. Maedonald), James Ballantvne (Mr Rattray), mid Annie Peebles .M'Hlashiui (Mr llnncan). Letters of administration were granted e I/iiuric Wilkinson, deceased (Mr Gilkison). He J. S. Fleming, deceased.—Motion for remuneration to executors (Mr Inglis).— IMcrred to registrar.