DAMAGES CLAIMED

Rotorua Morning Post, Volume 2, Issue 273, 13 July 1932, Page 6

DAMAGES CLAIMED

loss by distraint COMPANY DECLARES THAT SALE POSTPONEMENT CAUSES LOSS. CASE PROCEEDING. An action in which damages to the amount of £300 were claimed, occupide a lengthy hearing before Mr. S. L. Paterson, S.M., yesterday. The parties to the case were John Madsen Ltd., sawmillers, plaintiffs,- and Martha Lee, of Rotorua, married woman of separate estate, defandant. The company was operating a mill seven miles out of Rotorua on Clayton Road. The statement of claim set forth

that on May, 1932, the defendant, by her bailiff, distrained on plaintiff for rent, claiming the sum of £12 10s and seized chattels belonging to the company to the value of £45. These chattels were not the property of the tenant. Special and general damage for annoyance and loss of credit and reputation were assessed at £50; damage for wrongful seizure and detention, £25; estimated loss on account of lack of buyers at sale, £25. In addition the company claimed loss and damage to the extent of £50 by the postponement of the sale and £150 loss on account of lack of buyers at the' sale, making a total claim of £300. Mr. E. Roe, who appeared for the plaintiff company, dealing with the question of unlawful distraint for rent, said that Madsen had occupied a property under agreement to lease until May, 1931. After that date he continued in occupation at a rental of £1 a week, with the right of a month's notice. Since then there had been various dealings among the parties. Mrs. Lee had bought timber and Mr. Madsen had paid rent. There had also been matters of grazing. In May, 1932, when distress was made for rent, Madsen was in credit £5 8s lld on his rent account, though he admitted owing something for grazing, and for wages to a worlcman named Deem. There had been no proper adjustment. The bailiff had seized goods the property of John Madsen, Ltd. He took five ranges, one copper and stand, three horses and 10,000 feet of timber. There had been a fire at the mill and the company had decided to sell its effects. Madsen offered other goods not the property of the company so that the sale could go on, but the bailiff refused. The value of the goods seized amounted to £45. When the auctioneer arrived he had to postpone the sale for a week. On the first day there was an attendanee of 132 people, but on the second occasions only 30. As a result timber and other articles were bought at reduced prices. Wrong Goods Seized. Mr. Roe said that in claiming damages they proposed to prove that there was no rent owing; that the chattels seized were the property of the company; and, assuming that rent was owing distraint was exeess-

ive. When the company went on the property there were some workers' cottages, but not enough, so new ones were placed alongside the existing ones on skids, but not legally attached. On Thursday before the sale, Lee approached Madsen and told him the company had no right to sell the cottages. After seeing the huts, however, Lee said he was satisfied that they were not fixtures. On the Sunday, Mrs. Lee offered Madsen £2 10s each for the huts, but he preferred to sell at the auction. He was unaware that there was to be any attempt to interfere with the sale. The day before the sale the auctioneer was informed that Mrs. Less claimed the huts as affixed to the ground. Owing to the postponement of the sale it was a complete failure. Sale Affected. The auctioneer, P. J. Sherriff, thought that at least £100 had been lost by the postponement of the sale. He had turned the sale down on the first day owing to the dispute over the huts. H. P. Basley, retired solicitor, said he had attended the sale and found the bidding adversely affected by the dispute. W. A. Nixon, a farmer, stated that he had attended the sale, but was not inclined to purchase owing to the uncertainty. William Berryman, carpenter, of Rotorua, said he had examined the huts and found they were on skids and not nailed to other similar buildings. The plaintiff, John Madsen, swore that the company's huts were not nailed to Lee's buildings. He inspected the huts with Lee and the latter said he was quite satisfied they were not attached. He (witness) offered the bailiff other chattels to the value of £150 to hold as security to enable the sale to proceed, but the offer was declined. The timber at the mill was sold for £33 and should have brought £70. Taken altogether the company lost £150 on the sale. Attitude of Defence. For the defence, Mr. J. D. Davys pointed out that the evidence would show by the arrangement with Madsen that he was to have the right to remove all buildings only on consideration of doing the fencing. Madsen had asked that the erection of ( the fencing be allowed to stand down. As a result of an interview Madsen was accepted as a tenant of 30 acres on a definite basis of 25/a week. The rent had been paid from time to time in such sums as Madsen could find. At this meeting the question of fencing cropped up, and he agreed to hand over his cottages in lieu of doing the fences. The 60 chains of fencing required would cost about the same as the cottages on a fair deal. The next development was that Mr. Lee had. cause to think that Madsen was contemplat-

ing clearing out. An advertisement appeared in the "Morning Post" over Madsen's name showing that certain chattels were to be sold. Lee knew that Madsen had no money. There was no set-off allowed in law against rent as between landlord and tenant. At 25/- a week the amount of £17 12s 4d was due, but by making a credit allowance the sum claimed was £12 10s. As to the question of distraint: Who was Mrs. Lee to distrain against? Madsen had led defendant to believe that he was the tenant, but apparently both Madsen and the company were tenants, because he was practically the company. The distraint was against Madsen personally, and also as agent of the company. Obviously it was Madsen's duty to say who was the tenant. The set-off of timber against the rent clearly went to show that the company was the tenant. There was also the indisputable fact that Madsen was managing-director of the company, and also agent. The notice with regard to the houses was served to try and prevent a sale. If, to recover the money due, the company had been sued, Mrs. Lee would have been faced with the prior claim of the debenture issued by the company; if she sued Madsen she would get nothing. Fencing Agreement. The defendant, Martha Madsen had seen her and asked to be allowed a renewal of his tenancy at £1 per week. She could not agree to this,: but was prepared to accept 25/-, j Madsen had agreed to leave the cot- I tages when he left in lieu of doing the fencing. Ten cottages wefe advertised, but Madsen only owned four. Thirty acres were to be fenced, but Madsen had never dono I the work. At this stage the court ; adjourned until 10.30 o'cloclc this j morning.