ALLEGED BREACH OF CONTRACT

Star (Christchurch), Issue 16737, 19 May 1922, Page 8

ALLEGED BREACH OF CONTRACT

DISPUTE OVER UNITED SERVICE DIVE. The case in which Nimo de Somma, watchmaker, of Christchurch, is suing James Charles Lamb, licensee of the United Service Hotel, for the sum of £IOOO 16s 6d damages (£SOO 16s 6d special and £■‘soo general) for an alleged breach of contract, was continued at the Supreme Court this morning before his Honor Mr Justice Adams and a jury of twelve. The statement of claim set out that on March 16, 1922. defendant agreed to lease to plaintiff the dive of the United Service Hotel for £4 a week for three years, and that after alterations had been commenced on the building objection was raised to plaintiff’s occupation of it, and he vacated under protest- As an alternative cause of action plaintiff claimed that defendant represented to plaintiff that defendant was empowered to sub lease the premises for conversion into a. shop and that this representation was false. On this cause of action plaintiff claimed £9BS 16s 6cl damages.

The defence was that plaintiff’s proposal at first was to use the premises for occupation as n working jeweller and that he did not make it known to defendant that ho intended to use them for selling jewellery or advertising the sale of it. Defendant was unable to give plaintiff a sub lease for the purpose for which he required the premises because of the owner s refusal to consent to the sub lease, hut defendant had bona fide throughout in connection with the matter, and had good reason to believe that consent was assured. Mr TT. K. M’Don gall appeared for the plaintiff and Mr A. T. Donnelly for the defendant.

Mary Josephine Gargaro. a widow', said she had acted as an interpreter for plaintiff in his negotiations with defendant.

To Mr Donnelly . She did not understand plaintiff to tell Lamb that he wanted the cellar to carry on a business of a working jeweller. Witness thought that Lamb was told that plaintiff wished to open a jeweller s shop. . Tetro Antonio Dim, cabinetmaker, said he was present when plaintiff signed a document in the office of defendant’s lawyer. Mr Stringer. After the document was signed Mr Stringer informed plaintiff that the document was as good as a lease and that plaintiff could go on with the work of making alterations. Mr Stringer said that later he would draw up a proper lease to be signed by both parties. Later witness worked at the dive making alterations. He heard several conversations between defendant and Ingram, the builder, who was carrying out the alterations. On one occasion he heard Lamb say that he had signed nothing. INIr Donnelly cross-examined witness as to how he remembered that particular part of the conversation and no other.

Witness replied that when he heard this he thought. “ What, are they going to do the little fellow (meaning plaintiff; out of the place?” George Tngram, the builder who carried out the alterations to the dive, said that the morning after the work was started defendant came to him and said he had received a letter from the owners of the building objecting to the place being used as a jeweller’s shop. However, defendant said the work had better proceed in the meantime. Two days later defendant told witness that he had received another letter from the owners objecting to the place being used as a jeweller's shop, because exception to such a shop was taken by Butcher, jeweller, an old tenant in the building. Next morning, however, defendant said the work could proceed. On one occasion defendant told witness that he could have got more for the shop had he not leased it to di Somma. an 1 also that he had not signed any lease. To Mr Donnelly : He ceased work at the dive on instructions from di Somma. Defendant had acted in a straightforward manner throughout and seemed to be doing his best to let witness get on with his work. The difficulty was with the owners of the building. In opening the case for the defence Mr Donnelly said there was not a tittle of evidence to support the allegation of fraud that had been made. His Honor supported Mr Donnelly in this, and remarked that it was a most reprehensible thing that a charge of fraud should be levelled in this way when there was apparently not the slightest ground for making it. Mr Donnelly said that although ,t was an unusual course, he thought th it under the circumstances he was entitled to call upon plaintiff to state ids cause of action. His Honor upheld this contention. Mr M’Dougall said that the statements of claim and defence and the evidence showed that there had been an absolute breach of contract and th :t there was a lease between the parties. There was no provision in the contract that the consent of the owner to the lease must he obtained, and in any case it was the duty of the lessor to obtain this consent. (Proceeding.)