JUDGMENT FOR PLAINTIFF

Southland Times, Issue 25736, 28 July 1945, Page 6

JUDGMENT FOR PLAINTIFF

CLAIM FOR VACATING TRUST PREMISES Judgment for the plaintiff for £lO and costs £3/11/- was given by Mr R. C. Abernethy, S.M., in the Magistrate’s Court yesterday in the case in which Robert John Timpany, billiards room proprietor, sued the Invercargill Licensing Trust for alleged breach of an agreement to-pay him £5O to vacate his premises in the Grand Hotel building by a certain date. The case was heard on Thursday of last week, Mr A. Smyth appearing for the plaintiff and Mr L. F. Moller for the trust.

Hugh Ritchie, chairman of the Invercargill Licensing Trust, who had given evidence when the case was heard last week, was recalled. In reply to the Magistrate he said that he had made an offer to Timpany of £5O if he got out by June 1, 1944. Asked if, since the offer had been made, he had remembered the exact terms, the witness said he had not forgotten them. After the offer was made and refused, he had not extended the date. When the offer was made he was the only member of the trust who knew of it. The offer was not recorded in the minutes of the trust. He reported to the trust early in May 1944, that he had made the offer to Timpany. Only one date had been mentioned—that was June 1. If Timpany had relinquished possession by June 10 he would not have paid him the £5O. Timpany gave no assurance that he would be out by June 10. If Timpany had gone to the witness and said he would be out by any definite date early in June the witness would have extended the offer. He would say the plaintiff was a very wide-awake man. It would be impossible for the plaintiff to mistake the date for vacating the premises. The Magistrate: Why should this wide-awake man make a mistake? The witness: He might have thought he was entitled to the money. DIFFICULT CASE

“I have found this case a very difficult one,” said the Magistrate in giving his decision. “I have spent a good deal of time on it and have tried to discover for myself what the justice of the matter is.”

The Magistrate reviewed the evidence that had been given, and said he thought that an offer had been made to the plaintiff. The plaintiff was not consistent in his story. He first refused the offer of the chairman and then that of the trust’s solicitor, but he went back to the trust when he knew he could get out. The difficulty lay between the plaintiff and Mr Ritchie; it was a case of whose memory was more, correct and which evidence was more reliable. He was not prepared to accept the whole of the plaintiff’s evidence as establishing a contract to pay £5O to vacate by June 10. He believed that some justice was due to the plaintiff and that some contract to pay £5O to vacate later than June 1 might have been made between the plaintiff and Mr Ritchie. After vacating his premises so near to the fixed date the plaintiff must have been a very surprised man when he did not get his money. Mr Ritchie had expressed the opinion that the plaintiff was sincere. Neither was a fool. How, then, could Mr Ritchie think the plaintiff was sincere in asking for £5O when both should have known that he was entitled to it only if he vacated by June 1? The Magistrate added that he did not find the plaintiff’s claim proved, but believed that the contract had been approximately performed by tire plaintiff vacating by June 13. On all the facts he thought that justice would be properly served only by a judgment, in equity and good conscience, for the plaintiff. He fixed the sum to be paid to the plaintiff at £lO.