IMPORTANT TO LEASEHOLDERS.

Otago Witness, Issue 2690, 4 October 1905, Page 11

IMPORTANT TO LEASEHOLDERS.

BREACH OP AGREEMENT. ,3tfr H. T. Widdowson, S.M., on Monday gave judgment in the case of Samuel Tarratt Nevfll (Primate of the Church of the ■Province of New Zealand) v. PeteT if'Gregor, in which plaintiff claimed £90 for breaches of agreement in connection with a parcel of land in block X, North Harbour and Blueskin district. At the hearing Mr L. E. Williams appeared for plaintiff, and Mr Hay for defendant. Yesterday Mr W. Downie Stewart (instructed "by Messrs Haggitt Bros, and Brent) appeared for plaintiff to receive judgment. His Worship's judgment, which was in favour of plaintiff for £56 and costs, was as •follows: — This action is brought by the plaintiff to recover £90 damages for the alleged breach by the defendant of certain provisions— via., 3, 4, and 6. -of an agreement dated the 24th February, 1902; and made" between the plaintiff (as landlord) and the defendant - (as tenant) as particularised in the plaintiffs statement of claim. The agreement was fully recognised, and acted upon by the defendant; he having had .the use, occupation, and enjoyment" of the premises, and paid the reserved Tent during the whole of the term therein mentioned. At the hearing the following law points were raised for the defence: (1) That the court, being a court of conJmon law, has bo jurisdiction to heaT the case; (2) that the agreement is void owing to an alleged material alteration therein, and also a difference t>efween the 'original and counterpart; and (3) that even if the agreement is not invalid on -that ground action cannot be maintained upon it as it is neither in the form nor registered as required by the Land Transfer Acts. "Witn regard fo the first point, the New Zealand Express Company (Limited) v. Kettle and others is mainly relied upon in support of the defendant's contention. I am of opinion, after consideration of the cases cited afi"d other 'authorities, that the court possesses the necessary jurisdiction. As" to the second part, the alterations complained of appear in the counterpart in clause 5. are made in pencil, and do not correspond witjf those in the original or principal part. -Those in the latter are made in ink, and are initialled by the lessor. •No suggestion is made, nor do I think any can t>e-ma4e, that the latter were made after execution. The defendant in his evidence states that the document was left in the hands of the solicitors who prepared it and who acted for both parties -in the matter, but that the counterpart was jiot so altered when he signed it. The plaintiff-is not in any way seeking to benefit- from the alteration, but, on the contrary, it is apparent that it is distinctly in the interests and for the sole benefit of the defendant. I do not consider that the defendant has rebutted the legal presumption that if an alteration appears ,in^a deed it was made before^ execution, and I am further of opinionthat the, matters, at issue in the present action are not -affected by it, and that, under all the , circumstances of the case the alteration , is immaterial. See Sheppard's Touchstone, vol. 1. p. 53, as to difference in a counterpart from the principal part. In re Howgate (1 Ch, 1902, 451); Edgecumb v. Borough of Hamilton (21 N.Z.L.R., 599), and the cases therein cited. " Nor _do I agree with the defendant's contention on the third point. The answer to the first question covers this point to a large extent, and it seems to me that it matters very little whether the agreement is in respect of land under the Land Transfer Act or not if it be in proper form and there is evidence, as in this case." of use and 'occupation and payment of rent by the defendant and also recognition of the .agreemnt. (Edgecumb v. Borough of Hamilton, supra.) I have now to consider i ■whether or not breaches such as alleged in the plaintiff's statement of claim have been committed by the defendant, and, if so, what damages the plaintiff is entitled to in respect thereof. After careful consideration of the evidence and a personal inspection of the premises it is' clear that the defendant has committed a breach of the third provision of the agreement as alleged, but the plaintiff does not appear to make any claim in respect of the dwelling honse. His factor, Mr Wilson, who appears to have given all instructions in the. present case, shows how the amount of damages claimed is arrived at; without including this claim, and in his evide-nce states tliat " he has passed the dwelling house, saw something was wanted, but allowed it for •vrcariand tear." I' mention the matter here as counsel for the plaintiff, notwithstanding 'Mr Wilson's evidence, , seems to me to have subsequently relied upon its inclusion. Mr Park subsequently deposed as to the want of if pair' (including painting), and Mr Mulholland as to tho pain.ting. I may say, however, thafi even if this item were included (which under the circumstances I cannot now allow) I do not think, following the principles laid down i in. Proudfoot v. Hart (25 Q.8.D., 42), J .h© defendant would be liable for the cost of repainting the bouse. With regard to clause 4, .the defendant concludes that he has complied ■with the agreement by .having sown a certain quantity of the land with good English grass with the oat crop which was taken off just before the expiration the term, and that that, together with the other portions in gras3, completes the requisite two-thirds to be left ! •laid down according to the terms of the agree- j men*. • He alleges as a reason for the grass not being in evidenoe that certain" things have happened which have prevented the grass seed from showing itself yet. lam of opinion that ssuch sowing is not what is meant by laying down the land in good English grass, but if it were; I do not consider such sowing has been sufficiently proved, the weight of evidence I •being that the land has not been so sown. The evidence for the defence itself is somewhat vague and contradictory upon the point. Mr Campbell (defendant's half-brother) stales that ha saw evidence of red and white clover, but Mr Cleaves, a more independent witness, and who is particularly guarded in his evidence, says that he did no-t pee any clover, and that tbero were not sufficient signs to make him sure grass seed had been sown; and, further, that be did not exactly say that the land was 'laid down in its present condition. I also think that from the evidence it cannot be honestly contended that the six or seven acres aiow in gorse and broom at the bottom of the farm can be said to be laid down in good | English grass according to the agreement. It appears to me that of the two-thirds of the •land which was stipulated to be laid d<styn in good English grass at the end of the term 18 or 19 acres have not be so laid down. Rome reference was made during the hearing to clause 5 of the agreement and the extent of the plaintiff's liability to assist the lessee as (therein mentioned as bearing upon the defendant's agreement to keep that portion of *he land free from! gorse and broom and to 'deliver up same at the end of the term cleared from scrub, gorse and broom. It has bean given in evidence for the defence that tho clearing" specified in that clausa was don.© by *he defendant, and that being so, ii seems to | me that that matter does not now enter into our consideration; and in construing clause 6 ,V7e can do so altogether independently of the former." > It is, also for the same reason un- i necessary in the present case to consider the liabftity to assist the lessee raider clause 5. The evidence for both parties «eems . .ito agree that there were about seven acrs un'oleared on the expiration of the agreement. I . Am of opinion, therefore, that to the extent I

hava mentioned the plaintiff has proved his case, exoept as to the amount of damages claimed, which will now be considered. With regard to the damages for breach of Ike agreement to keep in repair, etc., contained in clause 3 of the agreement, there is a wide divergence between the evidence of the vaaious witnesses. This is evidently largely accounted for by the different data upon which their calculations are based and the manner in which they considered the work should be done. It is evident, judging fiom my own inspection apart from the evidence, thai the defendant's wit-nesses hove not taken into consideration all that they oughit to have done in connection with, tho byre and stable. While the estimates given by some of the plaint'^s witnesses are far too high, those- of the defendant's witnesses are much too low. It appears to me that Mr Park's estimate of £12 10s is a very fair one. As to thj&_ fences, Mr Park's estimate to put the fences in tenantatiTe order is £6 lls. That is the lowest given by any of the -plaintiff's witnesses, and appears to correspond very nearly with the estimates given 01J the other side. With regard to the breach set out in paragraph 5 (b) of the plaintiff's sia-te-ment of claims there does not appear to be any serious conflict of opinion between the parties. I assess the damages at £1 15s per acre, -the total being £l"2 ss. The only other breach to be considered is that ee<fc out in paragraph 5 (c), for which the plaintiff claims £30 damages. The plaintiff is entitled to soamething more than tlie mere cost of laying' the 18 acres down in good English grass, as the benefit of such land in "grass -has also been lost. " The true measure* of damage is th© amount by loss to the reversion. No evidenoe. however, has been adduced for the plaintiff beyond the cosi of laying down with the work incidental thereto. A cheap method has been suggested by one of the defendant's witnesses (Mr Anderson), but he admits that he prefers ploughing, and that that is" the proper method and more saire. I assess the damages a,t £24 14s. Judgment will therefore be for the plaintiff for £56, with costs. Mr Hay intimated his intention of appealing, and the fixing of costs of this and general costs in the case was allowed to 3tand over till Thursday.