COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4273, 30 November 1874, Page 2

COURT OF APPEAL.

Friday, November 27. (Before their Honors Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman.) DODSON V. MACANDREW.

Mr. Macassey for the plaintiff [; the AttorneyGeneral, Mr. Jas. Smith, and Mr. Stout' for the defendant. This case was moved into the Court of Appeal from the Supreme Court, Dunedin, where the defendant obtained a rule nisi, which was now moved absolute by his counsel. Mr. Macassey showed cause. The facts of the case are these. The plaintiff Dodson was the lessee of the refreshment rooms at the Port Chalmers railway station, which were leased to him by Messrs. Proudfoot and Olliver, the former proprietors of the railway, at the rental of £251 a-year. The railway was afterwards purchased by the General Government, the management being handed over to the Provincial Government, in accordance with the terms of the Public Works and Immigration Act. After the railway was taken over Dodson paid rent to the Superintendent, until the expiry of his term, the 31st Dec, 1873, but he then refused to give up possession until he was paid for his fixtures, stock-in-trade, &c. The Government had let the refreshment rooms to Mr. George Proudfoot, and as Dodson still refused to give up possession Mr. Turton, the then Provincial Solicitor, went to Port Chalmers early one morning and asked the barman to come outside to look at a photograph. The barman went outside and the door was immediately closed upon him by the bailiffs, who put Dodson's stock-in-trade and fixtures outside the refreshment rooms. Dodson thereupon commenced an action against the Superintendent, claiming £IOOO damages. The declaration in the action recapitulated the above facts, to which the defendant pleaded a general denial. The jury gave a verdict for £2OO, and tho defendant thereupon applied for, and obtained a rule nisi, calling upon the plaintiff to show cause why he Bhould not bo nonsuited, or a verdict entered for the defendant on twelve grounds ; and why, also, in the alternative, there should not be_ a new trial on seven alleged grounds of _ misdirection, and because of the wrongful reception of evidence. Mr. Macassey, in showing cause againßt the rule, said the declaration really disclosed three. cauto3 of action—lst. A breach of contract on the part of the Superintendent in not providing that a valuation should bo paid to Dobson fcr his stock-in-trade, as Proudfoot and Olhver had agreed to do. 2nd. That the Superintendent was a wrong-doer for breaking an entry. 3rd. That, granting he was colorably right in entering, he was guilty of excess in not handling the

goods properly in putting them out of the refreshment rooms. The grounds in the rule as to the nonsuit should be viewed from seven aspects. Generally, however, the mere fact, if it were said that the Superintendent was not liable either on the agreement or for the tort, was not a ground of nonsuit, but only for motion for arrest of judgment. The question really to be argued in cases of nonsuit was, was there any evidence to support the issues (Try and Moneton, 2 M. and 11. ; Lumby and Alday, 1 C. and J. 301 ; Winterbottom v. the Earl of Derby, L. K. Ex. 316 ; the Mayor of Kaiapoi v. Beswick, 1 Court of Appeal Reports.) Though some of the plaintiff's witnesses might have to be disbelieved before the jury could find in favor of the plaintiff, that also was no ground of nonsuit. (Briers v. Rust, 3 C. and K. 294) It might be said that there was nothing in the declaration showing excess. The sixth paragraph, however, sufficiently alleged excess, and no further particularity was required in New Zealand pleading, and though the cases might not be specifically put yet the Court could infer that the jury found it. (Roberts v. Drury, 2 Court of Appeal Reports, 258 ; Moorhouse v. Moore, Macassey's Reports.) As to the first point, which was that the agreement mentioned in the declaration had not been proved, the Court would observe that the plaintiff's case had been embarrassed through his not being allowed to give any evidence of the stipulations contained in the draft lease. However, Mr. Mansford had drawn notice of action after reading the draft lease, and the Court amst presume that he followed the terms of the draft lease when he drew the notice of action. Mr. Justice Richmond : Surely the maxim omnifi presumuntcr rite case acta will not apply in such a-case.. Mr. Macassey: Perhaps not. However, Davidson's evidence is sufficient. (Woodfall's " Landlord and Tenant," 736, 737 ; Cumberland v. Glamis, 24 L. J., C. P. 46; Carr v. Mostyn, 19 L. J., Ex. 249 ; Sadlier v. Bigg, 4 House of Lords Cases 435.) These cases showed that the draft lease ought to have been admitted in the evidence. The first ground taken in the rule necessarily assumes that the existence of the agreement formed an essential part of the plaintiff's cause of action, but, as had been already submitted, the declaration was susceptible of three interpretations ; but first as to the agreement he would submit confidently that the defendant was bound by it. Mr. Justice Richmond : Would it run with a reversal ? Mr. Macassey said he should contend that the defendant was bound by virtue of a novation or substitution; that by accepting rent, he became liable in so far as Proudfoot and Olliver were liable. The second ground was, that the defendant was a wrong-doer, because the terms of Dodson's holding were interfered with. (Harper v. Charlesworth, 4 B. and,C. 574.) Besides the defendant could not in the absence of pleading set up any title in himself. All that was necessary to be proved was proved by Dodson, namely, that Proudfoot and Olliver had agreed with him that he should be paid for his fixtures and valuation hefore a new tenant came into possession. The other statements in the declaration were necessarily inferences from that. It was not necessary that the defendant should prove every allegation in his declaration. In cases before the Privy Council and other courts, it had been held that even where fraud was alleged, if the facts were proved from which fraud might be inferred, that was sufficient to support the action. (London Chartered Bank v. Lenipriere, L.R., 4 P.O. 572 ; Swinfen v. Chelmsford, 39 L.J., Ex. 382.) The part not proved, namely, that the new tenant was not to be let-into possession till the valuation was paid was not a necessary inference from the other part proved. Roffey v. Henderson, 17 Q.B. 574, showed that if the new tenant had been let in, he could not be sued for valuation by Dodson. Dodson had a lien on his chattels till they were paid for. Mr. Justice Richmond : All that Proudfoot guaranteed was, according to Dodson, that certain money was to be paid. There was nothing alleged as to remaining in possession. Mr. Macassey said that if Dodson had gone out he would have lost his lien over his goods, (Leader v. Holmes, 27L.J.C.P. 316). Then if the defendant was bound by the agreement, the plaintiff was entitled to say, " You are bound to pay me the value of fittings, improvements, and stock." Another proposition he wished to bring under the notice of the Court was that every man impliedly stipulated when he made a contract that he would do nothing to violate his own agreement. (Mclntyre v. Belcher, 10 Jurist, N.S. 239; Sterling v. Maitland, 5. B. and S. 840 ; London and Westminster Loan and Discount Company v. Drake, 6 C. 8., N.S. 798). These cases supported his contention. The second ground included the fourth ground in the rule, namely, that as the agreement was not to be performed within the year it was not binding on either Proudfoot or Olliver, and consequently not on the defendant. The answer to that was, first, that the contract was executed, and hence the statute did not apply ; and, second, that it might have been performed within the year. (Ridley v. Ridley, 34 Beaven, 478). Mr. Justice Chapman : The other side will likely separate the condition for payment of valuation for the fixtures and stock from the agreement for the tenancy, and say that the agreement to pay valuation was not to be performed within a year. Mr. Macassey said that inasmuch as the contract was executed on the one side, there was part performance, hence the statute was inapplicable. (Cherry v. Hemming, i Exch. 631 ; Catling v. Perry, 2 F. and F. 140.) Again, the contract was performed on the one side within the year, and it would be inequitable if advantage were to be taken of the statute by the other side after such performance. Cases in which corporations were concerned were analogous to this case, and in such cases where a contract had not been properly sealed, the corporation was not allowed to take advantage of the absence of the seal. In Nicholas v. the Guardians of the Bradford Union, L.R., 1 C.P. 620 ; and in Young v. McKinnon (Macassey's Reports) the analogy of corporations was alluded to in the judgment of Mr. Justice Richmond. There were other cases bearing on the performance within a year, (Smith v. Neale, 26 L.J., C.P. I*3 ; Wells v. Haughton, i Bing. 40 ; Bracegirdle v. Heales, 1 B. and Aid. 722.) Again, where a partj received benefit under a contract he could not repudiate, and here both Proudfoot and Olliver and the Superintendent received rent from Dodson. The third ground embraced the eleventh ground of the rule, which was that a special agreement for valuation was not binding, not being under seal. The cases under the English statute on which the Conveyancing Ordinances were framed, showed that an agreement might be void as a lease, and yet good as an agreement for a tenancy. It was no ground to say that this was an unusual condition, for it was their duty to have asked Dodson what were the terms of his tenancy. (Martin v. Smith, L.R., 9 Ex. 50.) The fourth ground included the sixth and twelfth, that the Superintendent was riot the owner of the railway but only manager for the General Government. He submitted that the evidence did not show this. The provincial Appropriation Ordinance also showed that the provincial Legislature voted moneys for salaries and for the maintenance of the line, but the taking of rent as landlord bound the Superintendent, and he could not now say that he was not the owner of the property. (Morton v. Wood, L.R. 3, Q. B. 658; Jollie v. Arbuthnot, 28 L.J., Ch. 547 ; Dancer v. Hastings, i Bing, 2 and 12 B. Moore 34 ;' Evans v. Mathias, of Ell. and 81. 702; Downes v. Cooper, 2 Q.B. 256.) The fifth ground included the 2nd, 3rd, and sth, which »lled»ed that the agreement was a mere personaf agreement, and did not run with a reversion. It was admitted that the stipulation would not run with the land or with the reversion, but the Superintendent had made himself a party to the original agreement by the acceptance of rent. The contract was not severable. If the Superintendent was bound by one part he was bound by all. Cases analogous to tnis were where the agreement was partly for real estate and partly for personality. (Michaelen v. Wallace, 7 A. and E. 54 ; Broadwood v. Lozrao, 1 F. and F. 180; Kettle v. Dalrynipk>, Macassey's Reports 82 ; Tomlinson v. Day, 2 B. and B. 680; Vaughan v. Hancock, 3 C.B. 766.) The receipt of rent bound the Provincial Government to all the stipulations in the deed

(Cornish v. Stubbs, L.R., 5 C.P. 336, and the ruling in this case had been followed in Mellor v. Watkins, L.R., Q.B. 400. Smith v. Eddington, L.R., 9 C.P. 1-15 was also an authority for the plaintiff, because the Superintendent had ratified the contract. The Attorney-General : Neither ratification nor novation is alleged in the declaration. Mr. Macassey said paragraphs 3 and 4 necessarily inferred that. As to decisions of courts of equity with reference to novation and substitution he cited tho case in re the International Life Assurance Company L.R., 9 Equity 316, and cases of tenancy between mortgagor and mortgagee. The sixth ground included the»7th and Bth, namely, that the plaintiff had no notice of the terms of the tenancy. Thi3 was a question of law to be inferred from the fact of Dodson's position and the Superintendent's receiving rent. Mr. Justice Richmond : I should think that possession was notice sufficient to put the Superintendent on inquiry. Mr. Macassey, to show that possession must bo regarded as notice, quoted Daniels v. Davidson, 16 Vesey 249 ; Phillips v. Miller, L.R., 9 C.P. 196. The seventh ground included the ninth and tenth, but it was difficult to understand what was meant by the ninth ground, namely, that the Superintendent was not liable to be sued for the wrongs of the plaintiff. Mr. Justice Richmond : They suggest that the Superintendent is not liable as Superintendent for tort. Mr. Macassey said that such an objection should have been taken in arrest of judgment. It was not a nonsuit point; but still he contended that the Superintendent was liable in tort. (Leathern v. Macandrew, 1, Court of Appeal Reports.) At any rate it had never yet been decided that the Superintendent was not liable in tort. Mr. Justice Chapman: My remarks in Jones v. Macandrew referred to mere personal torts. I never decided whether a Superintendent might or might not be liable for torts in connection with the public property belonging to the province. Mr. Justice Richmond : One of the torts alleged here, namely, the excess to which you refer, is surely a tort in connection with the property ? Mr. Macassey said that even the excess it was admitted was in connection with the property, as the province in this case was placed in great difficulty through the new tenant requiring possession and threatening to bring actions to recover £SO a day for the delay. Mr. Justice Richmond : If the Superintendent turned a man out of his office because he would not leave when told, could the Superintendent be sued a 3 Superintendent for assault ? Mr. Macassey said that would be an extreme case. Here the Superintendent was liable for the acts of his servant, as railway companies were liable for wrongs done by their employes. (Bailey v. The Manchester Railway Company, L.R., S C.P. 154). At this stage of Mr. Macassey's argument the Court adjourned till Monday.