REMOVAL OF SHED

Waikato Times, Volume 124, Issue 20832, 16 June 1939, Page 8

REMOVAL OF SHED

EXCHANOE OF PROPERTIES CLAIM AGAINST TWO DEFENDANTS PLAINTIFF NON-SUITED Arising out of the exchange of two properties and the removal of a shed from one of them, a civil case was heard before Mr S. L. Paterson, S.M., in the Magistrate's Court, Hamilton, to-day. Edward Earle Yaile, retired farmer, of Rotorua, claimed £BS from James Cochrane Cleland, farmer, of Reporoa, and Allan McLaren, contractor, of Hamilton East.

Plaintiff was represented by Mr J. D. Daveys Rotorua . Cleland by Mr T. J. Fleming Auckland, and McLaren by Mr W. J. King.

Outlining the case, Mr Daveys said that on March 31, 1936, plaintiff and Cleland entered into an agreement for the exchange of their properties in Rotorua and Hamilton East respectively. The undertaking under which Yaile took over the Hamilton East property provided for his becoming the owner of the improvements and buildings. On the land was a shed which, in July, 1937, was removed hv the tenant McLaren, who told Yaile that he had a right to remove the building as it had been built by his father and brother-in-law and had been bought by him. The shed was used as a coal depot and McLaren said he always regarded it as his own. It was not until Cleland became the owner of the property that the shed was included in the land dealings. Fraud Not Suggested Evidence concerning the agreement with Cleland was given by Yaile. Stating that there was no suggestion of fraud by cleland, Mr Fleming asked for a non-suit for his client. The evidence of plaintiff made it clear that for the purposes of the agreement the building was regarded as a fixture, and nut a chattel. While he was the owner of the land Cleland paid insurances, including a cover on the shed, which he regarded as part of the land. As the building was erected on studs and was not attached to the land in any way, apart from its own weight, Mr King maintained, the shed was a chattel, and not a fixture. When the business partnership between McLaren and his brother-in-law was dissolved McLaren paid his brother-in-law £45 for the shed. When McLaren sold the business in 1937 he sold the shed with it. Evidence concerning the history of the shed was given by McLaren, and Frederic!: John Cleeve, defendant’s brother-in-law, who built the shed, said that the ’building was not in any way attached to the soil. The magistrate held that the building was a chattel and Cleland, who had gone into the matter with his eyes open, should make some settlement with regard to it. Yaile could ask for compensation against Cleland on the ground of failure of consideration.

Plaintiff was non-suited in the claim against McLaren, and decision was reserved on the other claim.