BREWER V. PUBLICAN.

Colonist, Volume LIII, Issue 13171, 29 July 1911, Page 1

BREWER V. PUBLICAN.

CLAIM FOit KENT UPHELD

NO DAMAGES AWARDED,

At the Magistrate's Court on Thursday morning Mr J. S. Evans, S.M., gave his decision in the cases ut v^liarles Robert Harley, brewer, of Nelson, and others v. David 1\ Barrett, licensee ot the Trafalgar Hotel, a claim for £90 rent, and David P. JtSarrett v. Charles .Robert Harley and others, a cairn for £i!UO damages for loss of custom, etc., through the alleged inferior quality ot beer supplied. Mr. C J. Harley received judgment for C. R. Harley and others, and Mr. P. B. Atkinson for D. P. Barrett. In the course of his judgment the Magistrate said:—

These two actions arise out of the lease of a hotel. The facts an> that

H«rley and Sons are the owners of a

brewery in Nelson, and also the owners of the Trafalgar Hotel. They let the hotel by a deed of lease, dated Mi j 25th March, 1909, to one Long, oi a term of six years. The rent reserved under the lease was £16 a week for the lirst year, and £13 during the )■"- mainder of the term. Under tli. lea?? the lessee l>ad the option of yursl') i u.ig fojr iioin the lessors at a s\od piu-.> duri.ij the term, and so '>on; as he did , so }~i;( lose from the lessi's lie '.ias entitled to a rebate of half the rui.t j payable. 'I he lessor covenanted niJi the lessee that they would supply I'ini with all beer, etc., ordered by him, ■ t good quality and at the ; rice st-.iivl. AHer renewing the transfer f iho j le.iv:> fro:ii Long to D. P. Barrett, and [ the covenant by Harlev ni:d Soi<s to ■ c;-rt;i:!ie the rent at £I<s a weel: • n j similar terms the judgment wntiniics . ! Up to the beginning" of .ipril, ll>]], | Barrett continued to take* beer from i Harley and Sons, though he comphin- I ed of the quality. Clothe 10th April j ie refused to take Harley and Sons' ! beer, and with the exception of a very small quantity has continued to refuse j to take it, up to date. Harley and Sons i now sue Barrett for the full rental ie- ! served by the lease subject to the . c- ' bite in terms of the letter of Kitli ' of April, 1910, amounting to £90. j Barrett sues on a cross action for C2().') ! damages, made up as fo'lows: £49 -!s | Bd, being value of beer said to be j thrown away as bad ; £72 7s Sd, for loss on profits through sale of bottled beer; and £100 general damages fur ! general loss to business. In all £221 | 12s Id abamloning £21 12s -Id; to _ bring thp amount within tlv j jurisdiction of the Court. The condition in tin's lease in regard to the pur- ; chase of beer and the rebate of rent is '' identical with that under review in ! The Captain Cook Brewery Co., Ltd., ' v. Ryan (19 L.R.), and'the points raised in defence of the claim for rent t arc the same as were raised and dc- ' eidod in that case, except in one pa-- j ticular which does not affect the liabil- j ity for rent, but has a most important ■ bearing on the. claim for damages, namely, that Barrett is the assignee of the promises and not the origjna' lessee. This being so, in my opinion, ' Harlev and Sons are entitled to jurl;;- : mr>nt loss £48 admitted to be paid. ! Much more technical and difficult ! Questions arise out of the claim for ! damages. On the evidence I must find j that for several months prior to the j 10th April tho beer supplied to Ba--1 rctt by Harley was not such as Bar- i rott's customers would drink. _ Evidence was given by other publicans, who received tboir beer from Harlev and Sons over the same period, to th-> effect that their customers had id more than tho ordinary complaints to make about the beer. This to my mind proves nothing more than that triers are different tastes in the-matter '.f beer. The fact remains that Barrett's customers would not drink Hariey's beer between December and March without very considerable complaint, and threatened loss of patronage. The questions therefore, are: Is Barrett entitled to claim damages from Harley md Sons for breach of the covenant i:i the lease? And if so, what damage has he suffered? On the latter point the evidence, is so vague and inconclusive on every head that it is impossible for me to say with any degree oi certainty what loss the plaintiff has sustained; any amount I might arrive at under any head would he a mere guess. It lies on the plaintiff to show with reasonable certainty what his loss is, or to prove, such facts as will enable the Court to determine with reasonable certainty what the loss is. This the plaintiff has failed to do, and I could only fix nominal damages at a guess. The other points of defence raised by Mr. Harley are so important to both landlords and tenants that instead of nonsuiting the plaintiff I will deal with the other defences raised. It is contended for the defence that the covenant in the lease to supply good beer does not pass to the assignee so as to give him tho right to claim damages for tlip breach thereof. _ The law as laid down by the authorities is that covenants "that 4ouch and concern" the thing demised pass to tlr< assignee of the land whether lum^d or not. Now, in my opinion, the option to buy beer and-tho covenant in the lease to supply all boor ordered of a good portable quality do not "touch and concern" the thing demised. On the authority of The Captain Cook Brewery Co. v. Ryan there is no obligation on the lessee to buy any beer at all. If there had been it would hnve made the house a "tied" house, and the covenant or agreement i.legal. The above ease decides that it is not that, and therefore in my opinion tlie option and the covenant are purely collateral, and do not pass with the assignment of the premises. There is no covenant to buy beer, and an option is purely personal. The covenant to supply beer is contingent on tho option, and therefore, in my opinion, cannot attach to the house. . . Tho assignee cannot claim the benefit of the covenant in the lease. He is entitled to exei"cise the option in the lease by virtue of tho letter of the 15th April, 1910, but not by virtue of any assignment from Long. But this letter was not, in my opinion, to render Harley and Sons liable in the covenant in the lease, and the plaintiff's only remedy is the ordinary remedy of a person who*has received goods of an inferior quality than those contracted for, namely, either to reject the goods or set up the breach of warranty (if any) in diminu-' tion or extraction of the price, or bring a separate action for breach of warranty. If Barrett had been the original lessee his position would have been different; but being assignee only, for the reasons above stated. I am of opinion he cannot recover on the covenant in the lease.This action is founded on the covenant only, and I cannot in these proceedings consider a claim for damages for breach of warranty (if any). As to thp specific items of his claim he has failed to prove how much of tho amount claimed for bottled beer was loss, and in my view of th& case •he must fail on that ground. It has not been proved what quantity of beer ho poured out, and ho hod no right to pour it out; his right (if any) was to reject it: as to the £100 general damages he has failed to prove any general loss or falling off of business. Judgment will therefore bn for Harley and others for £48 rent (defendant ha vine; oaid £48 into plaintiff's account before the issue of the summons). The Magistrate gave Mr. Atkinson the option of tni'ino: a nonsuit or an adverse judgment in the claim for damages." Mr. Atkinson was allowed time to eonpider which he wou'd take. .Subsequently Mr. Atkinson said he would accept a 'ion suit on the olalnt for damages, and intimated that he in-

tended to appeal against the decision on the claim for rent.

Costs amounting to £7 Is ivero awarded plainti/i's on the claim for rent and against plaintiff for £15 2s on the claim for damages.