AN HOTEL CASE.

Colonist, Volume LIII, Issue 13168, 26 July 1911, Page 4

AN HOTEL CASE.

BREWER CLAIMS RENT.

HOTELKEEPER CLAIMS DAM-

AGES

At tho Magistrate's Court yesterday, before Mr J. ii. Evans, S.M., Elizabeth Jane Harley, widow of New Plymouth ; Charles Robert Harley, brewer, of Nelson; and Margaret Maud Ramson, of New Plymouth, claimed from David Priddle Barrett, hotolkeepei-j of Nelson, the sum of £96, being six weeks' reirWrom April 10th, 1911, to May 22nd, 1911, of the Trafalgar Hotel, at £18 per week, less rebate of £2 per week as agreed.

The defendant claimed from plaintiffs £200, being £100 general damages and £100 special damages (after deducting £21 12s 4d to bring the action within the jurisdiction of the Court).

Mr C. J. Harloy appeared for the plaintiffs and Mr P. B. Atkinson, with him Mr W. S. Mifner, for the defendant.

In the counter claim plaintiff alleged that tho lessors under tho lease agreed to supply all colonial ale, beer, porter and other colonial malt liquors (whether draught or bottled) of good quality, etc; that during tho months of December 1910, and January, February, March and April they failed to perform and observe the covenant referred to, and defendant suffered special loss and dainago.£l2l 12s 4d; that the plaintiff suffered considerable loss of trade and custom by tho beer being bad, and claimed £100 as special damages.

Mr C. J. Harloy, who had not filed a notico of-defence to the counter claim, was granted leave to defend. Mr Atkinson asked that his objection to the granting of the application be noted.

Mr Fl arley stated that the leaso prdvided that the rent was reducible by one half if defendant took plaintiffs' beer, r.iid the provision was within the provisions of the Licensing Act. That tho beer was bad was not an answer to a claim for rent. The amount of ordinary rent, ,£MS, was paid, into Harley and Sou^s account just before tho issue of the summons, and the claim was thus reduced by ono half.

Charles Robert Harley, manager of tho Raglan Brewery, deposed that ii May 1910 the lease between plaintiffr and Walter 11. Long was assigned tr defendant. It was agreed that th< rent should he reduced from £18 pei week to £16 a week if defendant toolove rtho lease, reducible by one half if the hoor was purchased from plain tiffs. He had charged the full rent because defendant took his beer from other firms. Defendant had paid into the credit of plaintiffs the sum of £48 being the ordinary rent. The balance of £48 was still owing.

By Mr Atkinson : The beef was noi bad that ho knew of.

Mr Harley submitted that the ques tion of the beer being bad was not ; defence.

Mr Atkinson contended that double rent should not be charged if tho beer was bad.

The Magistrate said if Mr Atkinsor was going to produce authorities tr •-.how that the failure to supply good beer was an answer to a claim for renf his cross examination was in order. Ii not it was irrelevant.

By Mr Atkinson : The beer was good during the period the double rent war claimed. He would swear that McNci" find beor from him during the sam*neriod. McNeil may have got b?e> from other firms. Duncan Barrett had asked !iim to supply him with beer. Witncs' asked him not to do it, and said he would go and see Barrett. Ho say Barrett and consented to Duncan sup plying him with two casks. He had no other houses where his beer had ')een refused. Ho never told Duncai to supply Barrett. Ho would sweai that he had not had complaints about the quality of the beer from othc houses including tho defendant's. He had not had complaints from the Pro vincial and White Hart Hotels. Hi :lid not have any general complain! ibout tho boor between December a:Vpril. He did not, know that the: had been complaints about his beer Ho did not know that the public he/ refused tr> drink it.

By Mr C. J. Harley: He supplier' boor to tho Globe, Provincial, Posi Boy, Turf, Kaiiway,'White Hart, Trn vollo.rs' Rest, Wnkeiield, and Mouton liotcls, and he had not hnd any conplaints except from the Trafalgar an Railway Hotels. During tho perio< 3iiod f&r Barrett took a cask now am igain from him. It was a custom i. the trade to make allowance, for soni :>r bad beer. Ho had made allowance, to the White Hart and Provincia hotels. It was a common thing t< make allowances for beer. Draugln Seor was easily spoiled. If a spilv w.as left out of a cask the beer flat toned quickly. If the beer was Ion; 111 draught it tended to sour it. Dirt; ■md leaky pipes would affect the beer S:te gave tho defendant verbal notici that he was not to use any beer bit'

his. He made tho following allowances to defendant: January £3 and £? 10s ; February £1 (5s 8d and £2' 10s March 7s; April £1 Is 4d. Defendant had paid for all the beer purchased from plaintiffs. Ho had not had an\ complaints lately about tiie beer.

By Mr Atkinson: The profit or draught beer should be 100 per ceni and on bottled beer 75 nor cent. ITc did not remember tho date that h< gave defendant verbal notico not t' take other people's beor. He did not tell defendant he could take the heei for a month until the beer got hotter.

Mr Harley said that closed his casr on the claim for rent.

Mr Atkinson said his defence to thr action for rent was that the beor wnt bad and defendant was only obliged tc pay doublo rent when tho beer wai? good. If tho beer was so bad tha! people refused to drink it, it was, Ik contended, a complete answer to ar action for rent.

Tho Magistrate said it was quitf clear that defendant could only gel his rebate in rent by taking plain tiff's beor. If the beer was undrinkable defendant would have a claim foi damages. -

Defendant stated he went into pos session of tho Trafalgar Hotel on Ist May 1910. In January 1911 he censer' purchasing Harley's beer because lm customers refused to drink it. He hat 1 had 16 years' experience in hotel keep ing. The beer was not actually soui but had a strong smell, with a tastr like fungus, and made his customers sick. It was now on tap, and his customers still, said it was not fit to drink. The beer was not so bad now as it. was in the hot weather. In December ho returned 90 gallons of eighthogsheads purchased. In December Harley said the beer was all right and that neople were only prejudiced. He saw Duncan, who refused to supply him without seeing Harley. Duncan told him that Harley said he could supply him. After 21st January he got his next supply of beer from Dodsnn, although he had both beerr on. Harley never objected to him hay. ing other people's beer. Ho could not have paid his way if he had kept on drawing Harloy's beer exclusively. While Harley's beer was bad he got through 2000 bottles of beer in two months. He lo=t money during the best months of the vonr through the draught beer beinct bad. The iimount claimed as special dftnmgen did not represent all his losses. Instead i>l getting 100 per c«nt on draught Wr he only got 10 Per cent on bottled hfpr while Hnrley'i beer *as bad. While Harley's beer was food his accounts for bottled beer for fIVa months •rere about £22 ]os. «nd while the beef was bad his bottled beer account .'ose

to £103. Beer valued at £49 4s Sd was actually thrown away. Customers after tasting tl-e draught beer rofusod to drink it, and ho had to throw it away. Many customers, iviieu thc> found ho had Ilarloy's beer on Jap walked out, and others «had told him they wero torry they could not patronise'Jiis bar as tlioy could not drink the beer.

Mr C. J. Harloy: I don't think you could mention a man.

Witness: There is a list of one hundred customers who signed .that they could not drink Harley's beer.

Mr C. J. Harley objected that that was not evidence, and the Magistrate said if the defendant wanted to prove that he would have to call evidenco. , By Mr C. J. Harley: The balance of tho beer supplied during five months, less tho returns allowed for, he had disposed of. Half of the remainder was waste. For every glass of draught boor that was refused he had to sup|»y a glass of bottled beer. He first took Duncan's beer in January. During t' c latter end of February he had Hurley* beer on tap. From 18th to 22nd M'.trch !io used Harley's beer only. The reason lie did not keep on Dodson's >t.i r was because Duncan would not si-pply hira. Ho paid Harley £4 10s per hoarhead. The reason he bought bottled beer was because Mr Havloy kept ts 11----ing him that his beer would soon be better. Mr Harley told him that his bottled beer and stout was not g'-od, and-witness purchased other Ivfmds at 8?s Cd a dozen. At the tims tl.e draught beer was bad ho was telling half pints of bottkd beor for ;.d The first four months he was in the Trafalgar Hotel Ills bottled beor account v .v about £4 a month. Ho treated Fur ley's beor well. He very seldom fe-j. oil-' ed beer.

By Mr Atkinson : He had been hot.;lkeening for 16 years and never bef xc had the same experience with beer.' John McNeil, formerly licensee rf the Railway Hotel, owned by plaintii's stated that in December last tho 011 blic refused to drink Harley's beer. IV:r two months last winter it was pretty fair. He had been drawing DodsVi's and Holland's beer, but had also fo?;)t Harley's on tap. If he had been obliged to soil Harley's beer only jip could not have carried on.

By Mr Harley: Ho had been drawing; five times as much of Dodson's •is Harley's. His customers would not rlrink Harley's beer, consequently tiie ■lraught was slower. Ho had been lepommending his customers to dirk Dodson's boor.

Margaret Uro, barmaid at tha Trafalgar Hotel, stated that the public refused to drink Harley's beer and still refused to do so. Customers who had tho beer Jeft it 0:1 the counter and asked for bottled beer. Some who were used to half pints of draught expected half pints of bottled beer. She had only two customers who asked for Harley's beer regularly. Some time ago five business men went Into tho house and said they would not come again if Harley's beor was on tap. While she was at the Post Boy Hotel there were complaints about the beer. The only draught beer the customers refused to drink was Harley's.

By Mr Harley: She had not tasted the beer—tho smell of it was enough. By Mr Atkinson: Customers had refused the beer immediately it was tapped.

Joseph Holland, brewer, stated he had been supplying tho Railway and White Hart hotels at Richmond since the A. and P. show last November.

Henry Richard Duncan, brewer, ronembered defendant coming to him in January last about beer. Witness told Harley that lie did not wish to

■supply him, hut if Barrett was going to {j;ot outsidr; bfer he would do so. There was a tacit agreement between Harley and himself that he (witness) should supply Barrett. On 23rd February last Harloy rang him up and said his beer was all right and asked him not to supply Barrett any longer. Barrett had not had any occasion to votuni liis boor.

By Mr Harloy: In March he heard lhat Barrett was getting Dunedin >eer, and he rang up Harley and toW 'n'm if Barrett was going to get beer j from outside.ho might as well supply 1 him. As a rulo he considered beer I should bo consumed within a week or a fortnight after it was tapped. An 13 gallon cask of beer on tan for a month I would deteriorate. The condition of tho engines and pipes affected tho beor. Defendant, recalled, stated that ho :ould have bought 2-1 hogsheads of '>eer with the money ho paid for bottled beer/in December, January and vcbrnary. He sold Mrs Gorman 125 .lozeii bottles in one month. By Mr Harley: He did not try to mrchaso draught beer from Hogg or Holland. This was the evidence for defond- | 'int. Mr Harley called, Charles Thomas, licensee of tho Moutere Hotel, stated that ho had never had any trouble with Harley's beer, and had only had to return threo iv four gallons during the last twelve nonths. In his experience draught ">eer was always better the first two lays after it was tapped than' afterwards. If the spile was left out for me night only the beer would loso its head. Dodson's hoer did not take so ■■veil with his customers at the Moutere is Harley's did.

By Mr Atkinson :He had had eomolaints about English beer. People had never left Harley's beor on his counter, they generally said "fill 'em up again."

Frederick Durbridge, licensee of the Wakefield Hotel, who draws ILirloy's 'jeer, stated that he had drawn moro beer this year than ever before. Ho had never returned a gallon of beor since ho had been in the house. He found Harley's beer kept well, and had rover had any real complaints about it.

By Mr Atkinson : Ho- had never noticed any peculiar smell about Harley's beor.

Herbert Parkos Swainson, licensee of the Post Boy Hotel, stated that ho was not bound to draw Harley's beer. He had, however, been drawing it for Mght years, and had never had any trouble with it. He had never found customers leave their beer on the coun. tor, and he had never had to return-a drop.

John Satherley, licensee of the Tra-

vellers' Rest Hotel, Apploby, stated that ho had been drawing Harley's 'ieer for 15 years, and had never had to send any back. He never had complaints from his customers, and tho !ieer was a good drinkable heor,

James Thomason, licensee of the Provincial Hotel, stated that he had only had to return one lot of Harley's beer, about 12 gallons, in January last. A few customers had complained about tho beer, but they also complained about Dodson's.

. By Mr Atkinson: He had never returned any of Dodson's beer. He hnd not had a complaint about Harley's beer since Pebruary last. He would nwear that ho had never asked Barvett to procure some of Dodson's beer for him.

Henry Homes, licensee of the White Hart Hotol, Richmond, stated that ho had hfttt-one cask of beer that was wrong, and this he returned. The only complaint ho had about the beor wns from Mr Atkinson and Mr Bartett, when they called in one day. He h««l doubled his tr«de since October last, although only t quarter of a mile from the Railway Hotel. His customers preferred Hnrley's beer. At CanTftstown they nreferred Dodson's beer tA-Marlborough beer—it was a matter «f tsste.

This concluded the evidenoe

Mr Harley submitted that there had not been «n Jinswer to the claim for rent. A* Mr Barrett h«d 'been drawing Dodion'i oe«r principally ha had no right to the rebate of rent. Tho covenant to supply beer, he contended, was not binding in regard to Mr IWratt. j» whom the leas* had baen assigned, and he quoted authorities

in support of his contention. In regard to the quality of Barley's beer Mr Harley said that the weight of evidence showed that it was good. Barrett liadl accepted the beer and sold it, and he contended that ho could not now claim for it. Barrott should not have accepted the' beer. He submitted that Barrett was not obliged to buy expensive bottled beer. He could have purchased draught beer from other local breweries. No evidence, he contended had been tendered to show that Barrett had suffered any loss, and therefore he was not entitled to anygeneral damages.

Mr Atkinson submitted that the beer supplied to the Trafalgar Hotel was had—and it had not been shown that the beer supplied to the hotel was good. Mr Barrett had always been perfectly willing to buy Harley's beer and it was no advantage to Mm to purchase beer elsewhere. Barrett's landlord, ho continued, must be liable for damages for not supplying good beer.

The Magistrate said he did not think there had been any answer to the claim for rent, but he would give his decision on Thursday morning.