WASTE AND DAMAGE.

Otago Daily Times, Issue 19528, 10 July 1925, Page 7

WASTE AND DAMAGE.

LANDLORD SUES TENANTS. A SUCCESSFUL ACTION. At the Magistrate’s Court yesterday the Magistrate (Mr J. R. Bartholomew-, S.M.) was occupied for the greater part of the day in hearing an action in which John Samuel Ingram, retired aerated water manufacturer, proceeded against Henry Mark Jarvis and George Edward Jarvis, butchers, to recover £23 10s damages for the cost of replacing on repairing premises at the corner of Marion and David streets, Caversham, owned by plaintiff and occupied by defendants in their business as butchers. The statement of claim contended that during defendants’ tenancy they had committed waste and had not used the premises in a tenant-like manner, the defendants having left six panes of glass broken, removed one window sash, cut two holes in the brick walls in the !ow-er storey and one hole in the brick wall of the upper storey, and in the roof of the rear part of the shop, and had left such holes unrepaired, destroyed plaster in the shop, and had removed the gas lighting system, and they had not replaced it. Mr W. G. Hay appeared for plaintiff, and Mr R. S. M. Sinclair for the defendants. John Samuel Ingram, the plaintiff, said that defendants had taken possession of the brick shop, adjacent brick dwelling, and back premises In November, 1022, and had given up possession on March 31 last. Differences arose in connection with the clauses of the agreement to lease, and the matter ended by the defendants vacating the premises. Defendants altered the premises to suit the requirements of a butcher’s shop. On their vacating it plaintiff found that holes had been made in a brick wall, a window frame had been removed, six panes of glass had been broken, the stairs had been damaged, and the roof had been left in such a condition that the rain got into the premises. Witness had not given permission for such alterations. He had not complained about the alterations in the shop, as that hac? been agreed upon. It was not safe to leave the brickwork as it was. During their tenancy the gas had been removed, and the electric light put in. To Mr Sinclair: Witness had agreed with defendants that they could make alterations in the shop with a view to satisfying the health inspector’s requirement. He had not suggested that the staircase should be removed from the middle to th* back of the shop. Albert Edward Wall, son-in-law of the plaintiff, said that the premises were in first-class condition on defendants taking possession. Witness had not removed the cas fittings. At present there was no provision at all for lighting. The place had not been left in a tenant-like condition. . , L. G. Newton, builder. Port Chalmers, assessed the amount of damage at £23 10s, and said that it would cost that amount to put the place in good order. James Callender, carpenter, Caversham, said it would cost £24 to put the premises in order.—To Mr Hay: If the lighting were restored and the holes repaired the building would be worth £3O more than at present On resuming after the luncheon interval, Mr Sinclair in defence, said that there was a denial of the allegation of waste, and also the matter of a later tenant after the defendants vacated the premises entered into the case. Henry Mark Jarvis, one of the defendants, said that in November, 1922, he and his brother had entered into partnership as butchers, and on December 20 the shop had been ooened for business. Several weeks had been occupied in altering the shop. A contract had been let to Mr Thome to this purpose, and the plaintiff had agreed to this. Witness and his brother authorised Mr Thome to plaster the walls and ceiling, and to put in a show window approxamately 4ft 6in by 7ft. Mr Thom© also put the electric light in, and concrete pickling tubs in the shed. Mr Thome had been paid approximately £145 to his work. Thro piuies of glass had been removed from the front door, and wire gauze runt in its place according to the inspector’s requirements. In September last witness and his brother vacated the premises. One hole had been made in the wall to give ingress to the smoke house and the grease trap. A sheet of iron had been removed, but the wall had not been hacked through. The other bole had been originally a coal trap, and that bole had merely been re-opened. His brother had carried out the work, and not Mr Thome. Plaintiff was aware at the time that the holes had been made. The itairs had been removed in order to comply with the inspector’s requirements. Witness had never given plaintiff an assurance that he (witness) would not require the top room. Plaintiff had agreed that the stairs should be placed in their present position. The roof was in good repair where it was cut in order to take in the stairs. In connection with the lighting, he had been informed there was gas in the promises, but he had not seen the fittings himself. Witness and his brother had put in the electric light. ‘ To Mr Hay: Witness and his brother had offered to brick up one of the holes, but the plaintiff said he wanted a door put there. Mr Thorne had said that it would cost between £8 or £9 to brick up this hole. Under cross-examination witness admitted that he would not like to see premises of his own left in that condition. Witness was of opinion that the electric light should not have been removed; apparently the man who had removed witness’s motor had made a mistake and bad removed the whole lighting system. George Edward Jarvis, the other defendant, corroborated his brother’s evidence. Witness agreed that the holes in the brick walls should have 'been bricked up, but in one of them plaintiff insisted that a door should be hung, and defendants were not willing to agree to that. . Charles John Thome, builder, described the work which he had carried out on behalf of the defendants. Over £IOO had been spent on the building, exclusive of the fittings, and the alterations would increase the value of the building by about onethird.

Mr Sinclair submitted, firstly, that any waste that had occurred was purely of a technical character; secondly, the acts done had been sanctioned by the plaintiff, who was also the lessor; and thirdly, there was the possibility of the liability of a man named Stewart, who had occupied the premises after they had 'been vacated by the defendants. Moreover, the plaintiff had at no time exercised his statutory right of entry and inspection after the defendants commenced business. In connection with tho claim for panes of glass allegedly broken by thq defendants, it was evident that eomething had happened since they vacated the premises. The hole in the wall for the coal and the holes in the lower and upper storeys had been sanctioned by plaintiff. Further, the fact that the promises had been vacant for a considerable time before Jarvis Bros, took possession would mean that plaintiff would bo all the more willing to facilitate tho business of possible tenants in order to gain something on his outlay. In those circumstances, he would be all the moro willing to grant permission for alterations to be made in order to comply with the Health Department’s regulations relating to batchers’ shops. There was also this in favour of tho defendants; at no time had tho plaintiff demurred at anything they were doing, although he was frequently about the premises while the were in progress. -Mr Sinclair contended that the claim had been wrongly assessed, and quoted law in support of his contention. Over £IOO had been spent on the building, and it. was in a better condition than it had ever been. It was ridiculous to suggest that the claim of £23 would make good the expense of £ICO. The cost of reinstating the premises to their former condition was not tho measure of the damage done.

Air Hay, for plaintiff, maintained that it was ridiculous to suggest that the work should have been left in its present state. From the evidence there was no question that it had been intended that the premises should have been left as they were found by the defendants on their taking possession. In justice and fairness to the plaintitf the premises had not been left in a tenant-like manner, and it was obvious that it was intended that tho premises should have been left as at tho commencement of the contract. Übviously the premises had not been loft in a tonant-like manner. In reviewing tho evidence, the Magistrate said that after some cross-examina-tion each defendant bad admitt J that it had not been fair to leave the premises as they were, and especially with the two holes in tho brick walls. They had each offered various explanations as to why they had not bricked in one of the holes—the place were plaintiff had wanted a door put in. Tho evidence was not anything like sufficient to show that Air Ingram had authorised the work to be done. lie may not have asserted himself in the matter. The Magistrate found that all .the items claimed for were recoverable, notwithstanding the ingenuous argument pul forward by Mr Sinclair. Defendants had undoubtedly left the premises in such a

condition that they were in an incomplete state. He had not been satisfied, continued the Magistrate, that the defendants had been responsible for the damage to tho windows or the sash. That damage, which bad been assessed at 3fis, together with the difference in the cost cf installing gas instead of electric light, which amounted to £l, would be struck from the claim. Judgment would be awarded plaintiff for £2l, with court costs (£2 11s), solicitors’ fees (£4 3sl, and witnesses’ expenses (£1 10?).