GRAY V. PARISH.

Manawatu Herald, Volume XXX, Issue 380, 20 February 1908, Page 4

GRAY V. PARISH.

Magistrate’s Judgment. Magistrate Thomson delivered judgment on Tuesday in the above case, which was reserved Irom last Court day:—Mr Read for plaintiff; Mr Moore for defendant. —The first, and in my view, the main question in this case, is whether the lessee (the present plaintiff) is bound under the covenants in his lease to do, at his own expense, the works at the hotel, which it is not disputed he did do. He claims that he is not, and says that the defendant knew he was doing them and sanctioned the expenditure. The liability of lessees of hotels under their covenants was very fully considered in the two reported cases Baker v. Johnston and Co., 4 G.R. 270, and Messiter v. Wollerman and another, 10 G.R. 58,and in them the same question was involved as in the piesent case, viz., was the lessee liable under his covenants for the cost of the work? In the present case the lessee’s covenants are, shortly, as follows : (x) That the lessee will pay rates and taxes ; (2) will keep in repair and paint; (3) will not sub-let, etc. without consent; (4) shall and will during the said term hereby granted keep the hotel and buildings open or used for a licensed hotel and victualling house, and will at all times during the said term carry on the business of a licensed publican therein . . . and will from time to time, and at all times during the said term, make all applications, give all notices, do all acts, and pay all moneys necessary for effecting and keeping on foot a publican’s license. .... (6) Shall and

'will at all times during the said term keep and conduct the said hotel in a quiet, orderly, and respectable manner, obey all the provisions of the Licensing laws in force in New Zealand, and all the directions given by the Licensing Committee acting in the district in which the said hotel is situated, and all the directions and requirements of the Police and all other rules and regulations relating to the conduct of licensed hotels and victualling houses for the time being in force in the said district.” (7). Will personally reside on the premises, etc. (8). “ Will not, nor shall do nor suffer to be done any act which may cause or teud to cause a withdrawal, or suspension of the publican’s license for the same or endanger a renewal thereof.’ ’ (^. W ill not assign the dcense without roasent. (10). Sha.l! and rr'Vat the expiration or other sooner determination of the term hereby granted, assign the then current publican’s license granted for or in respect of the said hotel hereby leased to the lessors or to 1 uch person or persons as the lessor may direct, (n). Will insure. The important covenants for the purposes of this case are Nos. 4,6, 8, and 10. The wording of them is not precisely the same, as similar covenants in the two cases already referred to, but after a careful consideration of those cases I am satisfied that the effect is the same. The plaintiff has covenanted to keep the premises during the term as a licensed hotel, and at the termination thereof assign it to the lessors; and from time to time to make all applications, give all notices, do all acts an 1 pay all moneys necessary for electing and kte, iug on foot a publican’s license, "inis, it seems to me, is in the words ot His Honor Mr Justice Cooper, a coveuaut to do all acts, matters or things necessary to obtain a renewal of the license, and includes therefore an obligation to maintain the house at ,the required standard. The work done was in order to maintain the house at that standardpart of it, in fact on the express requisition of the Licensing Committee. It may be as well to state here, for the purpose of comparison, the covenants considered in the two cases referred to. In Baker v. Johnson and Go,, they were (1) The lessee will keep or cause to be kept the said hotel and buildings, or any other hotel or buildings that may hereafter be erected upon the said lauds in lieu thereof as a public house. (2). Will at all times do or cause to be done all acts and things necessary to obtain renewals from time to time of the license thereof and to keep the same in full force. (3). Will not do or commit or suffer to be done or committed any act, deed,matter or thing whereby or by means whereof the license for the time being subsisting for the said hotel and premises may be forfeited or become void. In Messiter vWollerman, and another they were (1) The lessee will during the currency of the lease keep the premises open as a licensed house. (2) Will not do, commit or suffer or permit to be done or committed any act, matter or thing whatsoever, whereby or by means whereof the license shall be liable to be taken away or suspended in any manner whatever. (3). Will from time to time during the continuance of the term apply for and endeavour to obtain at his own expense the necessary license. (4). Will sign and give all notices necessary to enable a renewal or transfer of the license at the expiration of the term to be obtained. In both these cases it was held that the' covenants cast on the lessee an obligation to satisfy all the lawful requirements of the Licensing Committee, compliance with which was necessary to obtain a renewal of the license—in other words, an obligation to maintain the premises at the required standard, In my opinion, the lessee’s covenants in the present case have the same effect. It is clear that the work done, except the supply of a new tank, was work which it was accessory to do in order to

maintain the house at the required standard and the cost of it therefore falls on the lessee. As to the tank, it is admitted that the lessee, the plaintiff, supplied that without consulting the owners and without any requisition from any Incensing authority. It may be that it is still his own property —it is not necessary for me to say whether it is or not —but he cannot, under these circumstances recover the cost from the defendant. The plaintiff, in his evidence, says that when he was called on to do the drainage, he spoke to all the owners, and they agreed to bear their share. The defendant denies this, and no claim was made on her for two years after the work was done. 1 should, therefore, feel bound to hold that the promise by her to pay was not proved, but even if it were, it would, on my construction of the covenants in the lease, have been a promise without consideration, as the plaintiff was already bound to do at his own expense all that he was being called on to do. The same applies to the later work done with regard to which the plaintiff says the defendant's husband told him it would be alright, that there would be no trouble about it. Judgment is for the defendant with costs ; but as the question is an important one to the plaintiff, and may be even more so in the future, he can, if he desires it. have leave to appeal. Costs £2 19s.