SUPREME COURT.

Globe, Volume V, Issue 543, 15 March 1876, Page 2

SUPREME COURT.

SITTINGS IN CHAMBERS. Tuesday. March 14. (Before his Honor Mr Justice Johnston.) His Honor sat in Chambers at 11 am. GILMOUR V BRUCE. His Honor delivered judgment as follows in this case : In this case there are demurrers to the first and last counts of the declaration. The first count sets out an agreement in writing, entered into between the plaintiff and the defendant, on the 3rd January, 1874, whereby the defendant let to the plaintiff ceitain sawmills, premises, machinery, and tools for twelve mouths from the 3rd January, 1874, on certain terms aod conditions. The provision in the agreement on which the demurrer to the first count is founded is in

these terms :—Bruce (the defendant) shall at any time during the term of this agreement, upon the request in writing of the said James Gilmour and upon the said James Gil t our, giving one month's previous notice of such his desire, execute to him a lease of the premises hereby agreed to be taken for the remainder of the said term, or for a further term of one or two years, as the said James Gilmour shall request, such lease to be, &c. The first count subsequently alleges—" That in pursuance of the stipulation in that behalf contained in the said agreement, and for the purpose of obtaining from the defendant a lease of the premises mentioned in the said agreement, for a further term of two years, from and after the expiration of the term of one year mentioned in the said agreement, according to the terms and conditions of the said agreement, the plaintiff, on or about the 29th day of August, 1874, gave to the defendant a notice in writing, which was in the words and figures following, that is to say : James Bruce, Esq., Waimate.—Sir,—Take notice, that it is my intention to avail myself of the clause in the agreement between us bearing date the 3rd day of January, 1874, wherein it is agreed that on my giving you notice in writing of.my desire to that effect you will execute to me a lease of the Waitangi sawmills for a term of one or two years beyond the term granted in the said agreement ; and take notice that I elect to take a lease of the said premises for a term of two years from the date granted in the said agreement. Dated at Waimate this 29th day of August, 1874—James Gilmoub. The count further- alleges, that after the expiration of one month from the time of the giving of the said notice by the plaintiff to the defendant as aforesaid, that is to s*y on or about the 13th day of November, 1874, the plaintiff caused a lease of the said premises for a further term of two years from the expiration of the said term of one year mentioned in the said agreement, to be prepared in accordance with the provisions of the said agreement, and with the terms of the said notice, and to be tendered to the defendant for execution by him. And the plaintiff has always been ready and willing to fulfil the said agreement on his part, and to execute a counterpart of the said lease, whereof the defendant had notice ; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to have a lease of the said premises executed to him by the defen dant according to the provisions of the said agreement, yet the defendant refused to perform the said agreement on his part, and to execute a lease of the said premises to the plaintiff in accordance with the said agreement. And the defendant has not executed such lease to the plaintiff, whereby the plaintiff wholly lost the profits which would have accrued to him from the working of the said mill during the said further term of two years, and incurred great expense and loss." The grounds of demurrer to the first count, relied upon at the argument, are substantially these—First.—That the plaintiff has put a wrong construction on the language of the agreement with respect to the lease for a further term ; secondly—that the notice in writing set out in the count was insufficient to comply with the provisions of the agreement; and thirdly—that the tender of the lease for execution by the defendant so late as the 13th November was not a sufficient performance of a condition precedent, necessary to maintain the action. On the first question, the dispute between the parties lies between two constructions of the agreement. The construction put upon it by the plaintiff in the declaration assumes that the plaintiff is entitled at any time during the first twelve months, on giving notice, to a lease for the remainder of that term, or to a lease for a term of one or two years, at his option, to commence at the termination of the first term of twelve months. The other construction, which is contended for by the defendant, is that the plaintiff was entitled either to a lease for the remainder of the first term of twelve n onths held under the agreement, or a lease for one or two years, including the remainder of the first term. The plaintiff contends that the grammatical and ordinary meaning of the language of the agreement supports his construction, and that there is nothing in the circumstances of the case, nor in the probable consequences of such construction, which renders it necessary to have recourse to any other interpretation or construction of which the words and phrases employed may be capable. The defendant contends that the words are susceptible of the construction on which he relies, and that such construction ought to be adopted as being more consistent with the probable intention of the parties, and not leading to inconveniences and difficulties which might accrue from the other. There was no suggestion made at the argument that the agreement is open to a third construction—viz, that the lease was to be for the remainder of the term, and one or two years more. Now, what does the agreement actually say? The time at which, subject to the request in writing and a month's notice, the defendant is to execute a lease, is "at any time during the term of this agreement." That term must be the period of twelve months from the date of the agreement. Then the lease, which the defendant is bound to execute, is to be either for the remainder of the " said term" (which can only be the said term of twelve months), or for a further term of one or two years at the plaintiff's election. Now it seems to me that two terms are here contemplated ; the former, the term from 3rd January, 1874, to 3rd January, 1875, and the other, a further term ; that is, not another term of longer duration, beginning from the date of the lease, and extending for one or two years, but a term the whole of which was further than any part of the first term, and therefore to begin at the end of it. In other words it seems to me that on the reasonable construction of the agreement, according to the true etymological meaning of the words, and the grammatical as well as popular construction of the language, the agreemeut manifests a common intention of the parties that the relation between them should subsist for twelve months at all events, or for two or three years more, if the plaintiff should desire it. No doubt there are inconveniences and difficulties which may be suggested as probable or possible consequences of this construction in respect of tho plaintiff holding under the agreement only, between the date of the lease and the commencement of the term granted by it, and his being liable to forfeit his interest under the agreement, before the commencement of the lease; but a similar inconvenience, as was suggested by the plaintiff's counsel, might arise

-u the defendant's construction, if a forfeiture should have taken place during the currency of the month's notice j and it seems

to me that, if the intention of the parties had been that the lease should be either for the original term or for a term which, with the remainder of the original term unexpired at the expiration of the month's notice, should amount to one or two years at the plaintiff 'a option, they would have used different language. The defendant's counsel argued at great length to the effect that the language of the agreement is capable of the construction which he put upon it, and that it is so much more probable, and leads to so much less inconsistency and inconvenience that it ought to be adopted in preference to the other. He contended that although there is no doubt that a lease may be made to commence in futnro, the intention of the parties to that effect must be made plainly manifest by their language ; and from an exhaustive search through reported cases for a long series of years, and the collation of precedents in standard works, he urged tipon the Court that it would appear to be the general or universal practice of conveyancers when they are drawing covenants for the renewal of a lease to commence from the expiration of a former lease, to use precise words stating the terminus from which the new lease is to run. I confess that this suggestion has little weight with me as a guide for the construction of an agreement like this. It seems to me only to indicate the proper form to adopt in the preparation of a lease, if the plaintiff's construction be established. I am not prepared to hold that the words of this agreement could not under any circumstances be capable of being construed as the defendant suggests, but I see no such absurdity or inconsistency in the plaintiff's construction as to render it necessary or proper to adopt the other. Apart from the question of the proper meaning to be put upon the words, it seems quite as probable that it should be the intention of the parties that the plaintiff should have a tenure of three years, if he wished it, as that he should have only an interest of more limited duration. The second question raised on the demurrer to the first count of the declaration is, whether a request in writing and a notice sufficient to comply with tbe terms of the ngreement are set out. Now the agreement srtvs that Bruce is to execute a lease at any time during the first term, upon the request in writing of Gilmour, and upon Gilmour's giving one month's previous notice " of such his desire." It is thus stipulated that at the time.when Bruce is to be bound to execute a lease, he shall have been requested in writing to do so by Gilmour, and that there shall have been a notice given by Gilmour a month before " of such his desire." It is plain that by this language the parties meant a request made by Gilmour, and a notice of his desire, that Bruce should execute a lease. Now, in the documents set out in the second paragraph of the first count, and objected to by the defendant, Gilmour begins by the words " Take notice," and intimates to Bruce that it is his intention to avail himself of the clause wherein it is provided Lhat on his giving notice in writing of his desire to that effect, Bruce should execute a lease; and he further gives notice that he elects to take the premises for the term of two years from the date granted in the agreement, and that must, I think, be- taken to mean from the termination of the term under the agreement. Surely there is implied, if not distinctly expressed, in this document, a request from Gilmour to Bruce to execute a lease according to the agreement, and an intimation and notice of Gilmour's desire that Bruce should do ho. It seems to have been suggested on the argument, that the request mentioned in the agreement was to be a request in writing to execute a particular lease tendered for execution after the month's notice. But it seema to me that 1 should be putting a forced —what I may call an unnatural—construction on the agreement if I were to adopt this suggestion. I am therefore of opinion that a request and a notice sufficient to comply with the terms of the agreement appear upon the face of the declaration. The last objection raised to the first count is, that it ought to have appeared that the lease was tendered for execution immediately on the expiration of the month—time being of the essence of the agreement. This argument might have great force if the true construction of the agreement were that the lease was to commence from the expiration of the month ; but the Court holds that the term of the lease must be taken to begin from the expiration of the term under the agreement. The month's notice expired on the 29fch September ; the lease was tendered on the 13th November, about six weeks after the expiration of the month, and the term under the lease was to commence on the 3rd of January following, he., about seven weeka afterwards. No authority has been cited tending to show that under such circum* stances the plaintiff ought to be held to have forfeited by his own laches his right to enforce the agreement. I come now to the demurrer to the last count of the declaration. The argument in support of it pro* ceeded entirely on the assumption that the count in question is an indebitatus count for money had and received ; and that it comes within the authority of the cases of Place V Potts, 8 Ex. 705, and Wilkinson v Sharland, 10 Ex. 724, as modified by Fagg v Nudd. I am glad I am not obliged to decide hjw far those cases could be supported as affecting a declaration in an action in this Court. I am not prepared to say that a count, such as was held to be bad on demurrer in those cases, might not be supported in this Court, even if it were irregular, and invited an application for amendment on the ground of its being embarrassing. Butthe last count in this case is not in the form of the indebitatus count held objectionable in England. It does not allege that the defendant is indebted to the plaintiff for money had and received, without averring that the money is already payable. It states that the defendant has received, for the use of the plaintiff, the several sums of money in that behalf stated and specified in the particulars of demand, and amounting in the whole to the sum of £l9O 7s 6 A ; and the particulars of demand (which by rule 186 are to be treated as part of the declaration) contain eight detailed items, which the plaintiff alleges that he seeks to recover under the last' paragraph (i.e. count) of the declaration. The particulars are annexed to the declaration in pursuance of rule 100, which provides that where a plaintiff seeks, as the plaintiff here does, to recover a sum of money made up of a number of distinct items, he shall set forth the particulars at the foot of the declaration} and it would therefore seem unnecessary or improper that the details should be set out in the declaration, if any of the items could be properly desciibed merely as money had and received for the use of the plaintiff. The real question is whether thelast countby itself, or alopg with the particulars to which it refers, isufficiently alleges a caui|e of action under

rule 40, which requires that pleadings shall be in ordinary language, without useless repetitions, and that every declaration shall clearly and distinctly state all such matters of fact as are necessary to maintain the action. Now the allegation that the defendant received a certain amount of money for the use of the plaintiff would seem to be of itself a sufficient allegation of fact to raise an implication of a contract to pay the same on request, for a breach of which the defendant would be liable to an action ; and, if that allegation be supplemented by a sufficient statement in the particulars of facta of receiving on different occasions of different moneys for the plaintiff's use, that would be a further compliance with our rules of pleading. I confess that the statements in these particulars do not seem to me very clearly to indicate how the alleged transactions amounted to receipts of moDey for the use of the plaintiff. This matter was not xelied upon at the argument, and possibly the objection was one which might or ought to have been raised on an application to amend the particulars. But it is unnecessary for me to say more upon that point, as I consider I am bound to hold the count bad upon another ground, one which was not raised by the demurrer or directly alluded to at the argument. It seems to me that the plaintiff has treated the contract implied by the defendant's receipt of money to his use, as the cause of action, whereas it is the breach of such contract which constitutes the cause of action. It is not the right created by the contract, but the infraction of that right which is the cause of action. The pleader seems to have been misled by the form of the common counts fiven in the appendix to the Common Law rocedure Act, 1852. That Act provides that it shall be sufficient to allege that the plaintiff sues for money payable in respect of certain, matters, without any further averment of any breach of the implied contract to pay. But before the passing of that Act it was necessary in all indebitatus counts, as well as in special counts, to aver non-pay-ment as essential to give the right of action ; and the fact of non payment is not averred. I am therefore of opinion that the last count of the declaration is bad for the last mentioned reason. There will therefore be judgment with costs for the plaintiff on the demurrer to the first count, and for the defendant with costs on the demurrer to the last count. RE FINLAY FISHER, DECEASED. Mr Jameson applied for letters of administration to issue to Donald and Isabella Ross, as next of kin, Hiß Honor made the order as prayed. BE GOODS OF DONALD STEWART, DECEASED. Mr Slater applied for letters of administration to Christina Stewart, as widow of deceased. His Honor made the order as prayed. BE FREDERICK LANE, DECEASED. ' In this case Mr Slater moved for probate to issue to Charles Kiver, jun, and Willi-im White, as executors of the will of the said Frederick Lane, deceased. Order made. RE WILL OF THOMAS GEE, DECEASED. Mr Joynt applied for probate to issue to Alfred Gee, as sole executor unAer the will. His Honor made the order. SITTINGS IN BANCO. GOTTERMEYER V HAUCK. This was an action in which Martin Gottermeyer and Gottfried Schelka, of Governor's Bay, were plaintiffs, and Alax Hauck, of Lyttelton, spinster, defendant. The plaintiffs alleged that in June, 1874, the defendant was the owner of part of rural section No 126 and rural sections 5081 and 16703 at Governor's Bay. In June, 1874, the defendant entered into negociations with plaintiffs for the sale to them of rural section 16703 at £lO per acre; Before making any agreement the plaintiffs required defendant to show them the section, which she did, and stated that the lower boundary of rural section 16703 was below the springs of water on rural section 5081, and that it was bounded on one side by Parsons' gorse fence, on the other by the land with the hotel, and that the upper boundary was unsurveyed. On the faith of this assurance, which was repeated at the time of completing the purchase, the plaintiffs decided to purchase. Some few months after a Government surveyor made a survey to decide the boundaries of rural section 16703, and the plaintiffs then discovered that the representations of the defendant as to the springs of water were not correct. The plaintiffs therefore sought to recover damages to the amount of £3OO for loss and damage sustained by them through the false representations of defendant. The case was tried before his Honor Mr Justice Johnston and a common jury at the January Nisi PHits sittings, and a verdict entered for plaintiffs for £IOO. In Chambers, on January 21st, Mr J. B. Gresson, for defendant, obtained a rule nisi eilling on plaintiffs to show cause[why a new trial should not be had, or a verdict entered for defendant on the grounds that this was a case in which the maxim caveat emptor applied, inasmuch as plaintiff had the same means of ascertaining the alleged defect as the vendor (the defendant) ; and further, that the verdict was against the weight of evidence. The rule now came on for argument. Mr A. Thompson appeared for the plaintiffs, and to show cause against the rule being made absolute. Mr J. B. Greßson for the defendant, and in support of the rule. After hearing argument, his Honor reserved judgment. BE E. C. KENT. This case was further adjourned until Thursday, at 10 a.m. ___^__^^___^__