LANDLORD AND TENANT.

Timaru Herald, Volume LXXXIII, Issue 12904, 15 February 1906, Page 6

LANDLORD AND TENANT.

"A DISPUTE ABOUT-GORSE

At the r; Magistrate! s Court... at Timaru yesterday,' a case *6f-"eome/.xniteres.t to far-mers-was heard. This waS a suit WiUkni Henry v. Donald Bell, claim £ls—dam=breach.. Rayaaan4|f|%#amf4ffjjy[r idr|de| fendant. ■ . ""' """' »~--=-•-.-« *

Mr Raymond? stated^theTcase?~-On 10th. August 1904, plaintiff toofe/ifpm a, lease of a farm of 96 acres at Qaremont, for five years. " The lease contained the usual covenants about keeping fences iainmed, gorse grubbed, and buildings in .good order. When plaintiff saw the farm withT -there--was-"a" overgrown fences and stray aiese rectified. ""This "proSse i?i the previous tenant left, -and defendiwwk ISwSSJNIsS keep'Hnw s promisef"plamS - ttir%m to- i -ctrfr^Ke^enc«S ;a^a fSiS M' conld.work certain jpaMocks, "and' 0 j: j for^lre^wages-.and keejp4f JfiSela tiangasput anto thg, kitcheife iy, with; V tjupi ¥§l.rlQ? for of tip , request" of: "lobking^alte¥ a terests. Mr Raymond anticipated that'.the" i~ i^? u W he that the ..written-leassv-toj' •w&^i^amtiffii.innMfJnnderiookl jfo amfc«oj?e,., mobbed* *be plaintiff. The reply to such a defence ; agreementt-toy r defendant ~toJaave the gorse grubbed at the ontset was an .addrtiqnal agreement, enforceable independ-: *rr ut > Mr."«a!rmonds^6Lstate.&;tiie «taer items. Regarding the thistle?, deiendants brother said he intended to send men economy's"- sake pla&fif? offered to with ais men to cut them and that was accepted. Plaintiff ga¥e evidence regarding the «3iree items in the claim. Mr PlaintrfiE.,said that defendthe time .«f signing tlie lease;-^f a would have 2 J° T l e = rubbed - Nothing was *aid seen at tbartime of Vear. " "- W. Harper, who did the gorse work domed for m the need ty for at, and the varne. He heard defend .S.»^S. I,e ,r: K "* ,h ' , .? rc ™» in a copy"of tTbe' r- e '^}%Mm t^r J iease,. agreement, recurred the tenaiit to seelo tlie goTse K Probyn, farmervrGleniti, a neigi'bour Save evidence that the fences neede-i ?t----fention very when pkbtiff took it

Hfe 1 that cohiiition^ l^;;^^- ;;■- v :; '■■■-}- ■'■■■ '■*' Arch. ? Davrej'r.lafidtiTer,- Timarn> stated that, difeii,tla I n*t i s li f_brother saw him about goil^: :^;: to*''ttie ;: farm to cut Calif ornian ?iustl6sj' and 1 ' lat'eWpn 1 hei gaid 'he' was gomgjto/ptitf on. Bteffly's s ;men-. ; ;r j Jj:Heilryrplamtjfri.Son,' 'and-'H:.' Quinn, lift "'employee, testified'! that they .heard defendant'sbrother" •undertake to pay for cutting ,the ■'' thistles; another W. Ryder, '\, who did' .the;. s work' gave' 1 fbur,:'days a's : °nfs time" at'that 'job. '"'" '\ '•'..'' .Simpson, farmer, Waitaki, .who had fi.eiL tile farm before''Henry took it, deScribed -some oF'the fences on. BeU's side a"s 'from -three .yards wide to '" groves -of .. .They,•bad'been improved, since. This'closed'plaihtifFs'case. the defence, there: was'l spinel conflict of evidence, as to the : condition, of the farm and fences, but the defence ,mainly that" the evidence for the plaintiff ought not to"'"have b^efl^':a"oiiitte<i .j. , ;<S(;-the"' ground that the written agreement s iw&sfcomplete" and cbnclusive."*;'lt' was' aN'-drfferent sort of agree-ment-frbiii "that deferred to in 'the -author- % 9?.?t e &-" by-«iMi« Raymprid,. in which the of the adtlitiPnal agreement was something not mentioned in the -'lease.' In i&£rS?se}now-before.:the Court,.th&r.caie of grubbing,pf: gorse were among £he matters- bargained .about, and plaintiff ha:d-:only; rJ dpl)e.what, by his agremeat, he sequent payments of rent were made without ?any suggestion/of a deduction Hor gPrse cutting: " -He-qnUt'ed"a, 'letter "from "plaih: tiffvctoj defendant, 5 of-August: 1905-c'wiii"h •fkPHSfI-thajb^lamtifi ? at t that- notdo:' theLwark. ■^sr—-tie--same - date"- he wrote —about, the stove ia a different strain fiom that he adopted in Court.: There was no definite agreement about it' As thistles it was plaintiff's dutv-to rand 'DTbther had S& authority to incur ~e.viiease on that work. The first cause of ueiion |ras stale, the second and third premature,: as the claims for stove and thistles, would -ceme-ui p ro p er i y jf a t-. all, at the ecd of. the : ease. -_, >-^-

D. Bell, defendant, Stated'thai the previous tenant, Bairdfleft?the good jgrder, and all gbrseSgrnbteedi? Tliere was to burn, "that Plain, ; v^?S?^feni ade claim, -when%a-ving rent ever , ; Instructed ' , cury ;; or authorreply to^^>i^kymond s ;C;defeidant stated poskively^that: thereS;'wasVnQvgorse to require the lease was taken, a^@^^Jj@Sr S only complaint, about aK about burning, so far and he-wrote to denied ■that he had authorised? plaintiff to put in a new range. As t6~the* I thistles he had thought, of cutting them down himself, m his.-spare time,-.but plaintiff said he would jut' on his own men. His brother was a-sEea to look, after the place in witness's willing to pay ■comoensa\&m {iit the end of the lease:

■•-■ the'brother; of-defendant who had been-referred; to,- stated that he went to the farm last December, at his brother's request, to see about the" Californian thistles, and plaintiff ordered him off the place. Told plaintiff they ought to be cut i!S&J*.J^ € 3 r seeded and plaintiff said he would'^ee':tn'at J thSy did hot' seed. ToMi -^J^?d.L. If Henry had not promised to do it. Did notTngage~l)iavie7''toTd ~'iwn thatghe (wStness) had to-see Henrv, and if not cut the. thistles" he must •■rjiuf £ome line on. W ' ;;

KviF* B'aird, the previous tenant, gave evidence ttat all, the ..fences were cut and albgors* grubbed before he left; one corner of|a paddock" Sir rough Splice' that been ploughed. « He admitted *?®Tae left somefgprse-nnbui-nedi- but it '•would only takeuii i'br ;opi&a!ji and a halfsto b%rn it. Henry had never comv plained tdjhim ; .-about,.the;,state,.of s th.e .farm, iexcept about the" b'ufhing of some' gorse .on.^ J he l rqadside :f; that. . «i?%Tj , pPfe^-M r denied -having made certain"stal*ments : 'to ; one 'McBell had said do some) idea. He believed it referred to -Heudenied: -that there, was any overorowth hi "the fences. ~ ~-vj.: e~ ■' :--°-- > - i

nJfebis,#^orship_-, ri /The; farm., was quite it^~Z^"~; " " ', | ing WSr4dW^tn'ess%rubbing ; 'gorse, jand described theiyfarm; V .as r K:lean.of. gorse "and &'^^ l^^^§? ,i ' l^!:^'s^s for to-sjpend seven fe^iegEakbiiigso^-the.. i annj&tween August .and„December 1904. ' —--'.-•

Andrew McClintock, farmer, Claremont, on the adjoining the fence on his side -was in good" order when Baird left. Mr~ Raymond- said there was question about that fence. Witness had not taken any notice' of the' 1 otlierrfences.'

Henry McMillan called for Mr Raymond, -'stated-that - Baird told nini he had" had a letter' J from- Bell--threatening, proceedings, but it did not mention grubbing. Ifc referred to some 'wife and repairs of a "■> ■'■•'"-•■'■• ; . This? concluded -the evidence.

Counsel addressed the Court on the facts brought out, and his- Worship gave judgment. After hearing both sides, he said, the plaintiff had failed to satisfy the Court that defendant had made any such

agreement as,.plaintiff asserted. Plaintiffs! statements appeared to be : corroborated toJ some degree,-ibu&that might be explained if the real contention, w^is,. as it seemed to be, aboutthe burningiof gorse. Bystanders hearing; part of a conversation about burning might suppose that it referred to grubbing also-; He ••concluded that ; it referred only to the burning of gorse already grubbed, : therefore the first claim fell toi the ground. With, xegard to the second item it lay upon plaintiff.to prove that ha was authorised by defendant to place a range in the kitchen and to receive remuneration 4>r it, and he had failed.to do that. The old range had served the previous tenant though it had no boiler; it served the ordinary purposes of cookery. The third claim" seemed to be founded on a simple misapprehension. As defendant said, rather than;see the thistles go to seed he would have, cut them himself, and he sent his brother to do it but he -was prevented by plaintiff saying he would attend to it himself, and under the circumstances he could not expect to recover. The evidence was: conflicting; but on the -whole plaintiff had failed to prove his. claims, judgment must be for defendant, with costs £2 ils.