RESIDENT MAGISTRATE'S COURT

Nelson Evening Mail, Volume XII, Issue 130, 4 June 1877, Page 2

RESIDENT MAGISTRATE'S COURT

i J [Before L. Broad, Esq., R.M.] I Warren v. Sharp and Others. I His Worship gave judgment in this case \ as follows: — The defendants are the lessees of section 104 Waimea East, and certain buildings thereupon, and the plaintiff is the owner of the reversion. He sues defendants for damages for n breach of the following covenant:— "And also that they the said Carles Hadey.J. Sharp, J. A. Harley.and l. a. Harley, their executors, administrators, assigns, shall and will at all times during the said term at their own costs and charges keep and maintain the said demised premises in good and substantial repair, and so leave the same at the end of the terra; and that in

case any messoaga or tenement or buildings erected or to be erected upon the said demised land shall at any time during the aaid term b« destroyed or damaged by flre or otherwise, then and in every auch case the said C. Harley, J. Sharp, J. A. Harley, and T. H. Harley, eheir executors, administrators, or assigns shall and will forthwith at their own coats and charges rebuild, repair, or reinstate the same in a like good and substantial manner, &c." lam of opinion that the above words "destroyed or damaged by fire or otherwise" do not include destruction by the ordinary natural decay of the fabric, but relate only to destruction or damage from some unusual and active causa, such as fire, tempest, or earthquake. But supposing these premises had been altogether destroyed by fire, what would the defendants have been liable to do ? They would, under their covenant, have been compelled to rebuild them in as good and substantial a state as they were in at the time they laased them, or to pay their value at that time (Butcher v. Mclntosh, 8 C and P, 723, and Yates v. Dunster, 24 L J., Ex. 226). But the defendants were clearly bound by their covenant to keep and maintain the demised premises in good and substantial repair, and so far as the evidence goes they did nothing ; but, of coursa, no claim can be maintained for any damages which do not flow immediately from the defendants' neglect. It is in evidence that the premises were in decent order when they were leased to the defendants in 1871, but there is the evidence also of the plaintiff's expert witness that' in 1873 the building was in very bad order, and th«fe when he saw it again twelve months ago the worm was completely through it, and it was in * thoroughly rotten state. He also added that an old white-pine building like this might have been patched up so as to last * little longer by putting in a new stud here and there, or a board, or a pile, or some shingles. It was the duty of the defendant* to have done this. The amount of repairs must, however, in all cases depend upon the age and^ class of the building. Here was a white-pine building, fourteen years old' when demised, and within five or ais years after the damise absolutely rotten. I am of opinion that defendants were under this covenant only compelled to make such good and substantial repairs as that class of building would permit of. I dissent from the contention of the learned counsel for the plaintiff that the measure of damage in this case should be what it would co3t to erect a new and substantial structure, because defendants are not bound in any case to erect or pay for a new and substantial structure, but simply aa good and substantial a building as they got. JFor no man is bound, as was said in Yates v. Dunster, to give hie landlord a new house for an old one. But as the destruction of the building might have been averted for some little time longer, had the defendants done anything substantial towards repairing it, I think they are liable to pay the plaintiff the value of the building as it stood when demised to them. The learned counsel for the plaintiff laid some stress upon the fact that a covenant to keep and maintain in good and substantial repair involves a covenant to " put " in such repair. Admitting that it does, and the defendants have not done anything, the measure of the damage would still be the value of such a building as this (supposing it to be in such substantial repair as it was capable of standing) at the time of the demise. Now, as we have evidence that a new building can be erected for from £40 to £45, 1 believe that £20 represents the full value of the building at th« time it was demised to the defendants, for it was then fourteen years old, and within two years after showed strong signs of natural and speedy decay. The judgment will therefore be for the plaictiff for £20. and, as I think he ought to have accepted that .sum when it was offered to him by the defendants, there will be no costs.