PATERSON V. GORE AND DE COSTA.

Otago Witness, Issue 2834, 8 July 1908, Page 18

PATERSON V. GORE AND DE COSTA.

His Honor Mr Justice Williams gave judgment on Monday morning in the case of Paterson v. Gore and de Costa, heard about a week ago. His Honor's judgment was: — - ' The plaintiff Annie Paterson is the widow of , Charles Hey Paterson and the owner 'of the Ocean Beach Hotel, which, belonged 'to Mr Paterson. In 1906 one Sarah Farrell was in occupation of the hotel under a tenancy which expires on the Ist July, 1908. >Jn June, 1906, a written agreement was entered into between the plaintiff and 'Mrs Farrefl for a further tenancy of five years, to commence fom ' the expiration of the then existing tenancy. In November, '1907, Mrs F&rrell died, and the defendants 'were appointed her executors. The plaintiff alleges that-^'h© above-mentioned agree-ment-was prepared by Mrs Far roll's solici.tors, that she had no independent advice in 'connection with it, that she- was not aware of its contents and tegaJ effect when she 'signed it, and that she signed it under • the belief that the tenancy created by it ' was -a personal tenancy, and would come to an end at the death of Mre Farrell. She claims to have the agreement set aside or rectified, and a declaration that she is entitled to the possession of the hotel as from the Ist July next. In June, 1906, Mrs Paterson and Mre Farrell were both 'widows. The husbands of both of them had died since June, 1900. the date of the instrument which created the tenancy under which Mrs Fajrell held in 1906. Mr and .Mrs Farrell had been tenants of the hotel .under prior agreements since 1894, but on the 25th June, 1900, a fresh agreement was entered into between Charles Hay Paterson and Mr and Mrs Farrell. This agreement superseded the prior agreement. By it the landlord agreed to let and the tenants to take the hotel for a term of eight years from the let July, 1900, -at £3 a week. In 1906, therefore, Mrs Paterson as executrix of her husband was landlady, .and Mrs Farrell as the survivor of her husband was tenant of the hotel under the 'agreement of 1900. Mre Paterson and Mrs .Farrel! were neighbours and friends. Mrs Fajrell is said to have been 75 when she died in 1907. Mrs Paterson has also apparently attained a ripe age, and seems a very capable woman. In June, 1906, -Mrs F/irrell called on Mrs Paterson. No one." but themselves was present. Mrs Patereon gives an account of what took , place, and I have no doubt at all that her evidence is substantially correct. She gave her evidence in" a very straightforward v»y, and although she may possibly have been mistaken as to what took place recently in respect of matters which have no real bearing on the ieiue, her mistake, ■if any, is easily explicable, and does not .in the least affect her general credibility. Mrs Patereon cays: — "Mrs Farrell came and asked me if I would give her .another five years' lease. She never ■mentioned the terms. This was a day or two before I signed. I think she came .in specially. I said I thought she should leave it till the other lease was out. She said, ' Oh, give it to me. and I will sleep sound in my bed. to-night.' She said I ,mighb be influenoea and give it to someone else, and I said, ' Oh, no ; as long as she wanted it she could have it.' I don't think anything more was said except that she .could have it as long as she wanted it. •It was not stated who was to prepare the .lease, but she Raid she would get it done the same as the last one. I knew that ■Miss Benjamin' had prepared the last one. She said it would be ifo trouble at all, •that Miss Benjamin (I think) would bring it out to me." On cross-examina-tion she says : — " I knew when she started that what she was asking for was five years. I knew the new lease was to be at the same rent as before." "In the above ciroumstances I think the law is clear that the court will not order the contract to be rescinded on the ground that Mrs Paterson erroneously believed that the tenancy created waa a personal tenancy and would come to an end on tho death of ,Mrs Farrell. After quoting a number of authorities, bis Honor continued : — The proviso in the old agreement as to not assigning without .•leave would therefore come to an end on the 'death of Mrs Forrcli, and the position ( under the new agreement is the same as it . would have been, under the old. I think. Jtterefore, there is no ground for rescinding .tor rectifying the agreement. The defendants ask nothing of the plaintiff but to [foe let alone. I think they have a romplete •Equitable right to be let alone, and if any -.farther decree of declaration is neoesearv jto protect them in the enjoyment of their •rights under the agreement they are on- I titled to it. The agreement is at law a [ eontiact binding on the plaintiff. Judg- ■ jN|gt for the defendants. . ; XJoets were allowed on the middle scale, *« if £500 were claimed; second day, eight .gonieas; second counsel, two days, five guineas a dsy.