RESERVED JUDGMENT

Hokitika Guardian, 9 December 1925, Page 1

RESERVED JUDGMENT

OKARITO HOTEL. £2OO DAAI AGES AWARDED. Reserved judgment has been given by His Honor, Air Justice Reed, in the case of Joseph Rfahlert v. John Lewis iSwooney. concerning the Okurito Hotel dispute, which was heard in the Supreme Court at Groymouth in September last.

"This is a lessee’s action for damages fur breach of contract to lease an hotel,” stated His Honor, in the course of a lengthy judgment, ‘'there is a very marked conflict of testimony with regard to certain material questions, which conflict is not explainable as being due Id honest mistake. I have formed a definite opinion as to on which side the truth lies. . . 1 am perfectly satisfied, in spite of certain evidence to the contrary, that no question was raised, during the week that the plaintiff continued to live at lho hotel, as to the necessity of the consent of Mrs Mcduggage (the mortgagee) being obtained to the lease, nor was the plaintiff informed, nor did he know, that, any such consent' was necessary. . The delendant contends, first, that- there was a. (audit ion precedent, namely. that the agreement to lease was conditional upon the consent of the mortgagee being given in the least*. . . Ihe obligation of the lessor to obtain Hie consent of the mortgagee, is absolute, and a failure in do so constitutes a breach of 'contract. . . I decline to believe the defendant when he says lie only intended to sell to the plaintiff six sections, that, is the trochoid. I In* attempt to raise it question its to the identity of the property dealt with is, ] all) profeetly satisfied, for the purpose of assisting the technical defence of the Statute by making it appear that there is a doubt as to what was intended. ... I think the property is sufficiently described and the defence of the .'statute fails. "I think, therefore, that the contract and the breach of it are established, and the only question remaining ithat of damages. . . It is unnecessary for me to decide as to whether the circumstances prove collusion between the parties; it is sufficient to say that they satisfy me that the defendant- has made no honest endeavour to fulfil his contract with the plaintiff. . . 1 think that in the present case, the plaintiff Ts entitled to general damages for the loss of his bargain. The plaintiff claims £122 special damages and '£4oo general damages. The special damages consist of loss of wages, travelling expenses, and legal expenses. The rule with regard to damages appears to Ire as stated in 25 Halsbury 111. ns follows: ‘Where a purchaser recovers substantial damages for the hiss of his bargain on account of a breach of the contract, by the vendor, lie is not. it seems, entitled to lib expenses as well: otherwise he would actually benefit by the breach. He cannot. :n fact, have it. both ways. . . Considering all the circumstances, 1 think the damages suffered by the plnimifl may he fairly and reasonably assessed at £2OO. for which amount he will have judgment, with costs according to scale, disbursements and witnesses' expenses to he ascertained by the Registrar.” Mr AY. .T. Joyce. Grevnionth. represented the plaintiff, and .Alessrs Park and Murdoch. Hokitika, appeared for the defendant.