DAMAGES CLAIMED

Rotorua Morning Post, Volume 2, Issue 274, 14 July 1932, Page 6

DAMAGES CLAIMED

INVOLVED POSITION CAUSES LENGTHY LEGAL ARGUMENT. DECISION RESERVED. Both morning and afternoon sittings of the Magistrate's Court yesterday were occupied in the continued hearing of the case in which John Madsen, plaintiff, sued Martha Lee, married woman of separate estate, for the sum of £300 general and special damages for wrongful distraint, and the seizure of chattels belonging to the company. The 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 laek 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. On the resumption of the court in the morning Mr. Roe put in the. books of the company which had not been produced on the previous day. The first witness called was Mrs. Rosalind M. Mewburn, daughter of the defendant, who stated that she overheard conversation between her mother and plaintiff, in which she heard Madsen say that if Mrs. Lee let him off the erection of the feneing he would give them the houses he had built on the propertv. Ivy Brady, housekeeper for Mr. and Mrs. Lee, said she heard Madsen say that he was going to sell the cottages, stoves and timber. Mrs. Lee said that the cottages were hers and should not be sold, and his reply was that . he needed the money to get away. Mrs. Lee threatened to stop the sale and declared the houses were fixtures. John William Lee, husband of the defendant, said Madsen asked for the property on a rental of £1 a week when the first lease expired. Argument followed. They finally agreed to 25/- a week, but Madsen refused to go to the expense of an agreement. Under the first lease Madsen was to do 60 chains of fencing, but could not do it, not having the money. In

view of the fact that he had built houses on the place Madsen thought t'hey should forego the fencing. They agreed to do so provided he left the houses. At a later stage, when Madsen arranged the sale, he asked Mrs. Lee to put in her houses in the sale, but she refused. She claimed all the houses and threatened to prevent the sale. Distraint was made because they feared that Madsen intended to leave the district. Legal Argument, The case pioved an intricate one and legal argument at considerable length was advanced by counsel. Mr. Roe contended that the distraint had been illegal, and that the wrong chattels had been taken. The distraint had been for rent when no rent was owing. Credit had already been given for timber as a portion of the rent, and there was, therefore, agreement to a set-off. If rent was payable every four weeks it would have to have been owing four weeks before distraint could be legally made. Accounts showed this money was not due. Further, distraint had been excessive and was a cause of action for damages. The actions of defendant had also served to coerce and intimidate the * auctioneer and prevent a satisfactory sale. Mr. Davys, in reply, contended that the claim was not based on whether the rent was 25/- or £1, and no question of a set-off for timber had been raised until after the distress. If Mrs. Lee had been prepared to waive a portion of the amount distrained for, she was entitled to do so. She might distrain for £12 10s and do what she liked about the balance. Referring to the terms of the original lease he said it was not unreasonable to suppose. that those terms had been incorporated in the new agreement between the parties, the principal points covering the fences and houses. It was clear that the fencing had been postponed on Madsen's request. In the first place' Madsen had the right to the houses, and in the second Mrs. Lee had a right to insist upon the fencing. It was only reasonable to think that there had been an arrangement to set-off the houses against the fences. Madsen had refused to pay for an agreement and was prepared to take the risk. Mr Paterson deserved his decision.