COMPLICATED CASE

Southland Times, Issue 19899, 18 June 1926, Page 5

COMPLICATED CASE

BARGE SUM INVOLVED. MAGISTRATE DELIVERS DECISION. Reserved judgment in an interesting civil case heard a fortnight previously was given by the Magistrate (Mr. G. Cruickshank S.M.) in the Invercargill Court yesterday. The sum involved was £lB7 13/10, which William Grant Maxwell (Mr. W. A. Stout) claimed from the Howell Piano Company, of Dunedin (Mr. King). In giving decision, the Magistrate said: “This is a claim for rent alleged to be due by the defendants, a firm of piano dealers in Dunedin, who allegedly leased a shop in Invercargill from the plaintiff. “It appears that one, Frederick Howell, has carried on business in pianos for a very long time in Dunedin, and that of late years a son, F. B. Howell, has acted as his father’s salesman and manager. Another son, J. B. Howell, had been in Australia for. three years and had just returned to the Dominion. He decided to start in the piano business in Invercargill, and F. B. Howell and J. B. Howell came to Invercargill together and met the plaintiff, who owns a shop in Dee street. “J. B. Howell was not called as a witness, so that there is no corroborative evidence of what passed between the plaintiff and the Howells, and the parties quite naturally give' different versions of what was said. J. B. Howell later called several times on the plaintiff, as the shop was not vacant when the matter was first discussed, and finally J. B. Howell got the key. He occupied the shop all the period and paid rent occasionally, but the rent got in arrears and he finally left. The plaintiff says he never worried about the rent, as he knew the Dunedin firm was solid, and held them as tenants. He never sent an account to them during the tenancy. “After J. B. Howell left, a Mr. Kerr, the accountant of the Dunedin firm, camo to Invercargill to investigate the affairs of J. B. Howell and then it was that the plaintiff learned that the Dunedin firm repudiated all suggestion of liability. The plaintiff claims and must prove that the Dunedin firm was his tenant, that is that they agreed to rent his'shop. The plaintiff only had the one interview with F. Howell’and says in his evidence: “F. B. Howell mentioned they had a room in Briscoe’s buildings but wanted a shop in Dee street. . He then introduced John B. Howell as his brother, who was in charge of the room in Briscoe’s buildings and would take charge when the shop became vacant. He said if they could procure a shop they would take it. F. Howell handed me the business card of his firm and did all the business. He asked if he could get a lease Fred said he would try for twelve months as a monthly tenant.” “On the other hand F. B. Howell says he came to Invercargill to introduce his brother and assist him to get a shop. He told the plaintiffs the rent was too high for a young man like his brother making a start on his own account. He never knew until long after that his brother had taken the shop. His brother did not get stock from the Dunedin firm or in any way run his business as a branch of the Dunedin firm. He had no authority to use the name of the firm. There is thus a conflict of testimony, but even taking the plaintiff’s evidence as it stands most of the statements alleged by the plaintiff to have been made by. F. B. Howell can be read as merely made as the mouthpiece of J. B. Howell. “It is a case of direct agreement and it seems to me that there is a presumption that the man who takes the key, occupies the shop and puts his name on the window is the tenant. If the landlord after the tenacy has expired wishes to charge the arrears of rent to someone else he must show clearly this other man agreed to rent the shop. I cannot hold it proved that the Dunedin firm ever‘did so. It is unfortunate for the plaintiff that he did not send in monthly bills for the rent to the Dunedin firm. This would have brought matters to a head at once or in the event of no reply might be some corroboration of the plaintiff's story. The name painted on the window varied from time to time. During a portion of the time of the tenancy J. B. Howell had a partner and they traded as Howell and Chisholm. At other times it was the Howell Piano Coy., and the J. B. Howell Piano Coy. I cannot see that he ever traded as the F. Howell Piano Coy. “In my opinion the plaintiff has failed to overcome the heavy onus on him and the claim must be nonsuited.”