RESERVED JUDGMENT

Hokitika Guardian, 27 July 1925, Page 3

RESERVED JUDGMENT

THOMAS JOHNSTONE V. LILLIAN FITZSIMMONS. .1 COMMENT FOR PLAINTIFF. Ills Donor Justice Alpers lias given the following reserved judgment 111 the ease heard at Hokitika on June 215th : The iilaintiiT asks for eaneellation of a lease or in the alternative lor damages on the ground of fraudulent misrepresentation. At the eoiiiTusioii of the bearing I stated that I found the fraud to be abundantly proved and that the plaintill' was entitled to judgment lor damage'. Decision by order ol the Court was admittedly out of the question ill li;.- eiroilin-tain-os. but as roeision by agreement would obviously be ill Lite best interests ot both parties I suggested that thev should conler on settlement before I proceeded to assess

damages. I now learn that negotiations lor set tleireii! on the basis of defentlanl accepting a surrender ol the lease and 10111 ja'tis;' ting th" plaintiff for bis improvements have I a lieu through and I accordingly proceed to complete my judgment by computing the damages to lie awarded. I’lallitill entered into a lease ol deletiila'it’s picture theatre at llokilika know o as the (Inora I louse for a term ol live year- from September Ist. 1021. at a rental of L’7S per year lor the lies I Iwo years ami of CRT! lor the remaining three, lie covenanted to expend not less than Cl2o during the first twelve months ol lhe term noon reti'ivatious and repairs. Bv a collateral agreement lie required in consideration of the sum of L'.T an opliou to purchase Die premis"- demised at any lime during Die currency of the l-ase for l: lAt Ml. The pi ire ai lii's| asked was L‘2.0110 but the defendant agreed to reduce it l" Cl.uOO on a til'ninixe by the plaintiff to spend up to L'llilO in improvements. For several years Ike tlma lre had been under lease in one McLean who I oinlliel I'll c-illeiil.il'igrapli ('Uteri a 1 11mrii'.s on Tne-days and Fridays in rack week. In order to induce the plaintiff to enter into the lease now sued on the defendant represented to him both orally and by letters that McLean’s takings on Tuesday nights averaged enough to pay expenses for the week ; that Friday's takings were consequently (Tear profit and "averaged 1 from C.TD to 0(50 and over. This representation was a gross fraud which the defendant sought to

support in the witness-box by evidence that was palpably and shamelessly false. .McLean’s takings, as defendant, perfectly well knew, never on any single occasion approached the sum said bv defendant to be bis "average. ” lie stated, and bis statement was fully corroborated by documentary evidence that the takings on Tuesday nights averaged t’3 and always showed a loss on the evening and on Friday nights tlcv ranged from !M6 to CIS. On the fail!> of defendant’s representations the plaiutilf before opening the Theatre, made extensive alterations, and improvements; intending no doubt, in due course, to exercise bis option to purchase. The defendant "stood bv" and allowed this moiiev to be exuonded on her properly ; she nflered to advance him £6OO if he wished to spend up to that amount; and she look an active pari in the matter of alterations by applying in her own name to the Borough Council for building permits. fl is clear upon the evidence Unit the Opera House can never be made to yj t ,|,| the returns represented by the defendant. It is in the wrong locality for a business of that kind and nimt'-er picture theatre in a quarter ol tintown more favoured appears to draw (lie public. So far from the lease being of anv value fo 0- ehimtdl n is m'7 onerous con tract worth considerably less than mulling to him. As tor the out ion to purchase at £1509 Hi' - is m:t. worth that even alter plaint ill |,-,s spent 2700 in renovations and improvements. if i ■ ■•'' vf,n . l . tlu : Plain.ilf the full sum of ''llM l ilaimed hv him he would still he at a loss brought about, bv his inoitsh reliance, without independent eitqinrv. on do-f,-ml.Hit’s wicked fraud. But I « limited in the allowance ot damage.- by a long settled doctrine as h’ the mea.snre of damage- m such eases. kins v. Easterhrook" IMS. ii.L R. P- •>-<)) After taking into consideration alf the'items covered hv He doctrine ~( . f( o -i-ed to 1 adjudge defendant to pay ta | |,e plaiutilf the sum ol £<>-'0 wiLU (i) s|s on that amount according ,-le '■]() Ills P i for second counsel: \vitnefi'es" expenses and disbursements IO be settled by the Regtslrsir. _ The defendant counter-claims K' l "‘b monevs lent l-> the blMutilf and for ;-g<) 1,,.- ivrt unpaid at the rate ot 'mV IDs per month. The olaintilf in In* o' i(k‘i»cc* tFvit ws\* 'vamed as part of the £6OO promised to help him |>av for improvements he was m*d;i 1 1 ,r . and this was not aiqmrenlly to bo" re-paid till the lease expired or the plaiutilf exercised his option. As to the rent the plaintiff admits owing l»i live weeks not six. On l >oth matteta, eep. his evidence. ’P-e £7,i ,- not i-epavabie till the expiry ot too term, and 'will bear interest m the men”t mie. The defaudant i- entitled lo iuduulent on the counter-claim for rent tor live weeks £32 10s Oil. with <--•«> on that amount according to toe s< a t o costs in the Magistrate > •°”' • , . Solicitors: Park and Murdoch, link - tika. for plaintiff: Hannan and Seddon. Greymouth. for defendant.