CASE AGAINST A LESSEE.

Shannon News, 27 January 1928, Page 3

CASE AGAINST A LESSEE.

NEGLECT OF PROPERTY ALLEGED JUDGMENT GIVEN FOR PORTIONS OF CLAIM. A case arising out of the tenancy of a farm at lhakara was heard before Mr. J. H. Salmon, S.M., in the Magistrate’s Court, Levin, on Friday, when S. W. Carter claimed £l2B 6s 4d from C. Bacon, his former lessee. Mr. Moody appeared for the plaintiff, and Mr. Harper for the defendant. It was set out in the statement ot claim that, by an agreement dated July Bth, 1924, -the plaintiff leased, to the defendant certain land comprising • 100 acres 18 perches, subject to certain conditions; that the terms of the lease expired on July Ist, 1926, but by mutual arrangeim ut the tenancy was extended to January Ist, 1927; that by Clause 3 of the agreement, the defend-' ant agreed to pay all rates payable in respect of the lana, but that the Horo- * whenua County rates for' the years ending March 31st, 1925. 1926 and 1927, had not been paid; that the defendant, under Clause 5, agreed to repair, maintain and keep in good, substantial and tenatable repair, order and condition all buildings, erections and fences; that the defendant had not repaired or kept in repair the fences, stockyard, cowshed and pig-sty,, and that such repairs had been carried out by the plaintiff after due notice to the defendant; that tire lessee had not complied with the provisions-of the Noxious Weeds Act, 1908, as required by the agreement, and as a result thereof injury had resulted to the land. The plaintiff’s claim, after the deduction of £l6 19s for County rates to March 31st, 1925, admitted to have been paid, amounted to £lll 7s 4d, made up as follows; —Rates for year ended March 31st, 1926, £l6 19s; rates from July Ist, 1926, to January Ist, 1927, £7 11s lOd; 100 posts for fences, etc/, at 2s 9d each, £l3 15s; three strainers at 10s 6d each, required for fences, £1 Us 6d; new roof, repairs to pig sty, £5; two lengths of spouting for roof of cowshed, fixing same and repairing door of shed and tank, £1 10s; labour incidental to carrying out repairs to fences, gate, and cowshed, £ls; general damages for breach of contract and for injury resulting to land owing to failure to eradicate noxioiis weeds, £SO.

/Mr. Moody stated that there was a clause in the agreement for lease that the lessee should keep the buildings and fences in good repair and field them up in good order, “reasonable wear and tear excepted.” That was rather a -peculiar clause, owing to' the exception for fair wear and tear; but it was* submitted that Bacon must do something to keep the place in repair, otherwise that clause was a nullity. On the expiration of the term, the lessor after inspection, notified the lessee that certain repairs were required. Numerous notices were sent to him, anu lastly, owing to his default, the iessoi did the majority of the work. Bacon did attempt to do something, but L was not satisfactory.

EVIDENCE OF PLAINTIFF. The plaintiff, Samuel William Carter, farmer, Levin, stated in evidence that he leased certain land to Bacon in--1924 for a term of two years. Thi defendant under that lease, Clause 3 undertook to pay rates. There wen 18 months’ rates not paid. The tern ran out on July 19tlr, 1926, but there was an extension for a further six months on the same terms and condit ions; and defendant asked that, in tin event of getting the native lease, the plaintiff would lease him the whole property thereafter. The sum £l6 19 in rates for 1925.-26 was paid by plaintiff, also the rate demand for £ls 9s foi 1926-27. Defendant had not repaid these sums to plaintiff . Bacon contend ed that he was only owing 18 months rates; he had promised on several oe casions to give witness a cheque foi the amount due for rates. Prior t< this lease Bacon had the land under lease from 1922 to 1924; he took this following a share-milking agreement with Bacon Bros. The defendant had been negotiating for the purchase of the property, but the negotiations fell through and he took a further lease. In 1922 all the boundary fences were in. good order. Bacon’s last lease, ran out in January, 1927. Witness did no', inspect the property during thq, term of the lease. Some time in February he went over the property. It was not until he called on defendant, to collect the vent, after the ot January; that- defendant -told him that he had' given, the place up as from the beginning of January. Witness found the. fences to'be in a very bad state, especially the boundary fence next to Mr. Egginton’g. The boundary fence next., to Mr. McMillan’s was not so

bad as this, but was not as good as when,defendant went in. There was a feitce dividing the leasehold from the freehold, put- up 10 years ago, and that was found to be in a bad state of repair; the gateposts had been put in, %ut not the gates, and the strainer posts that had been replaced were of inferior material. Defendant denied that the fences -had deteriorated, but subsequently he consented to make repairs to them. It was months before the defendant commenced to do any- : thing; except that the ragwort was topped after the seed had matured, and the stalks were left lying about all over the place. On one occasion one of the neighbours,complained to the inspector about the ragwort on the property. The property was now one mass of ragwort. He had had three men on for three days, and one man engaged between milkings for two niSntha, in pulling ragwort. They had cut one portion of three or four acres. The only time that he knew Bacon to cut the ragwort was after the lease had expired. Ther.e were only two bushes of blackberry on the property when Bacon took possession, one near each boundary, to witness’s knowledge; he could not say what was in the bush. Now there would be 1C acres dotted; over with .blackberry. Witness had had uome of it eradicated, but work was

still being carried on in this respect. In the winter Eaeon had caused blackberry to be cut with a slasher and left lying about, with the result that the stock scattered it about and trod it in, which had the effect of transplanting it. Blackberry should be grubbed from underneath and burnt. A start was made by Bacon on the fence repairing, after the lease, but the work was done intermittently. In eases where posts were required .rotten wood was being used and the posts put in only a foot deep. Witness was going to put a herd of cows in, and waited as long as he could; eventually he told Bacon that he would have the woik done and charged to him. Witness employed a man to fix up the road fence, which Was the only one repaired so far. Over 100 posts would be required to put the fences in order, at a cost of about 2s •9d each. The ground was too hard at present to sink post-holes, but as'soon as it was practicable this would have to be done. The strainers cost from 12s 0d to £1; he was charging defendant 10s 6d for them. A year before Bacon first, took-posscssion a new pig-sty was .put up; it was a building transferred from Shannon, and structed.- in February, 1927, the roof and pen had gone, and the four wails of the sty were lying down as though someone had intended to move the building. They could not have fallen down. The defendant made an attempt at mending the sty, but the first gale that came took the roof off.. Witness had the work done again, paying a man to do it. At the cow-shed the doors 'were off the hinges, and the spouting was damaged, two lengths of it being on the ground, twisted up. .There was a good tank there when Bacon went ijn. Afterwards the down-pipe was broken, the tap wanted repairing, and there was a bullet hole through the tank. Witness had had these matters attended to. The cost of doing all the work required at the shed would be £4O, but he was only claiming £ls. He estimated the damage to the pig-sty at £5, but that would not replace it. The land had. depreciated through noxious weeds extent of the cost of eradication. It would be necessary to plough the land in order to get rid of the ragwort. The cost of eradication would be anything up to £IOO. The proper time to eut ragwort was in November and December.

Cross-examined by Mr Harper, witness stated that 50 acres of the land was native leasehold and the other 50 was his own freehold. Witness had been paying 30s an acre to the Native owners and letting it at £2 10s to Bacon; but he took it unfenced, then fenced it and improved it before letting it to Bacon, after having held it for five years. Urdcr the existing lease he was paying £2 per acre, plus rates and taxes. He had to take this lease because his own piece of freehold was not sufficient. The Natives had told him that Bacon had offered 35s an acre. It was'iiot a fact that this circumstance was responsible for the present action. In 1921 witness had a share-milking arrangement with Bacon’s sons. The boundary fences then were good, and there was a good dividing fence between the freehold and leasehold. After Bacon gave the place up, witness put some heifers on it. also some bulls and draught-horses. He had 38 head of dairy stock, a bull, three draught horses and a light horse on the property now. It was good land, though the grass had not been renewed for ten years and only a small portion had been ploughed.

NEIGHBOURS’ TESTIMONY. John McMillan, farmer. Levin, stated that he-knew Carter’s land at lhakara. Witness had land adjoining the leasehold. He remembered Carter entering into possession, as previously witness had the fifty-acre-'leasehold. The fence on witness’s side was then in good repair. Trie fence on Egginten’s side was a first-class one. He had not been over the property .lately; the fence on his own side was in good order. Wit ness was over the properly when Bacon rook over, and there were then one or two plants of ragwort in front of the cowshed. He, did not know how much ragwort was on the property now. When Bacon took possession there were two -mall blackberry bushes on the property.

To Mr- Harper. —In s&ise sections in the lhakara district ' ' had spread considerably in recent year's. .. John West Eggintony farmer, Heatherha, stated that he owned land adeeming .Carter's He had H.i.e up the boundary fence from time ,o time, and when Macon took over the property the feVico was in good order, liaron had not repaired the fence but witness had" always maintained it. When Bacon left it required posts, but the wires were good. Witness, after doing-up the fence six or seven years ago, charged half the cost to Carter, who paid him. Witness knew there was ragwort on the properly —a fair quantity when Bacon took it over, and it had .not become less. Ragwort was common in the district. To Mr Harper. —The boundary fence at the beginning of 1927 was not in as good repair as when Bacon went in. Witness had counted the number of posts required with a view to approaching Baeon, but he did not interview him on finding that ho was giving-up the place. James Eyrie, farmer, Shannon, stated that be knew the plaintiff’s properly at lhakara, having been employed there from 1919 for seven or eight years. When Bacon took the lease of it the boundary fence was in good condition all round. There was then about a quarter-acre of ragwort, 'where a stack had been, and a few patches elsewhere. He had not inspected the property for the last two years. Albert H. Hill, farmer,-Shannon, stated that he knew the land concerned in this case, having once had a farm opposite it. He remembered Bacon taking possession; at that time he did not notice any dilapidation of the fences, and there was only a little ragwort about. He saw the land in October, 1927. Eagwort then practically had control of the farm. He came across several patches of blackberry. .In the

fences there were posts down in placesHe put some new posts m and stiamed the wires; he did not do all the fences. Witness also gave evidence as. to the condition of the cowshed and pig-sties. James P. Ilemmingson, laboiuei, Shannon, stated that, he had worked for the plaintiff, off and on, for a considerable time. Last September lie was on the property, repairing the cowshed, fixing the gates, and puttmg-up a new cow-yard. He noticed a lot or holes where posts had been lifted out. He detailed repairs which he had made about the place. THE DEFENCE. • Mr Harper said that, with regard to the claim for rates, iff, would be necessary to go back to the time when Bacon originally took a lease oi this property and show what he actually paid up to the time that he gave up possession, showing that during that period he had overpaid £ol os 2d to In answer to the Magistrate, who asked why Bacon had over paid, Mi Harper stated that the quarterly rent, was £62 10s. At various times Bacon paid more than this amount. In Octoter, 1922, ho paid- £7l 15s. The next year he made four payments of £62 lUs. In 1924 he made three payments, including a deposit of £l5O, when endeavouring to buy 50 acres, the purchase falling through. Bacon took a fresh lease and it was arranged that what, was overpaid should go towards the rent. The £l5O was. taken as rent m advance. Counsel wished to show that there was nothing owing for rent because Bacon had paid Cm anmunt. His. total payments had been niU 0s 2d, when lie should have paid £l. S2o as rctu. Therefore it was submitted that Bacon did not owe anything for rates, as the overpayment of £si 2d was more Ilian the "amount claimed for rates. Wiih regard to repairs, if they were not in quite as good order at the end of the term as Uu-y were at the beoinniivs then the lessee was to he allowed "fair wear and- tear under the agreement' and he was exempted from liability on that head. In lelerence to noxious weeds., it was contended th.it Ilic defendant had done all iliat he could toe suitably be expected to do to comply with the Noxious Weeds Act. The propeitv was often inspected, and the Inspector' never had any fauit to find with the defendant on that account. Counsel submitted that the plaintiff should have- taken earlier steps to brng IPs claim. It was now a year since the del'c ndary'pare up possession of the property, and lie maintained that he wr- m l approached or asked to* do anything for a considerable time after he gave up possession. in the witness box the defendant stated that he was a farmer at Iha-ka>-a He first eniered into occupation of .Carter’.? property in 1921-22, when his bovs wC ! e share-milking thcie.. The ar ran go me ms then were that plaintiff supplied the land and witness put in the stock and plant. '1 he share milkmilking was not a success, and witness decided upon a lease.' The boys saw plaintiff in July, 1922, and him. if he would lease the property. Under this witness was to pay £250 a year, payable quarterly in advance. He paid the first instalment of £62 10s on securing the lease. There was only one gateway; the fences were in fair order, and so they were when he left. In addition to the boundary fences there was a short fence running down to the swamp, between the freehold and leasehold land. Previous to witness’s boys going on the place there was no dividing fence; it was buried in the ground, and cattle used to: be driven across it. Witness kept the fences in good order. There was a rough stockyard, put up by witness’s boys. They also put-up a pig-sty, which was blown dowmnftei’wards. For the last 30 years there had been plenty of ragwort in the lhakara district. As to the quantity on Carter’s, he could not see any difference in it between the time that he went on to the place and the time lie left it. Witness cut the ragwort regularly, and the inspector, who had visited the place at intervals, had not complained to him. When he went in, the ragwort was patchy all over the place Some blackberry was growing by the swamp. They . used to 'chop it and burn it before it seeded. He doubted whOther ragwort could be pulled up. He cut the ragwort early in January. The fences were in better order than when he took the place over. About six months after he went out he received a letter from Mr Moodie calling attention to certain requirements. Witness saw Mr Carter, and could not satisfy him. Plaintiff only mentioned the straining of wires, putting up seme fence posts, and mending the cow-yard. Defendant’s sons commenced renewing the cowryard, but plaintiff stopped them. Plaintiff never said anything to"him about the ragwort. Defendant considered that he had paid too much for the farm. Carter had since had an up-to-date stock yard put up; witness did not know whether lie was expected to pay for it. He considered that the fences were better when-he left the property than when he went in, because there was in the first place no dividing fence. To Mr Harper.—Witness paid £i;>o

to Carter as a, deposit for a purchase which did not eventuate. This money went as rent, witness taking »a lease later on. Witness’s sons went round the fences, before the lease was up. and put in posts. He had not carted away the ragwort after cutting it, but. left it as other people did. There had always been some blackberiy near the bush; he did not think it had spread while he was in occupation. The. cowyard that he took over might have kept a dead cow in.

Kenneth Adams, solicitor, Levin, stared that in 1922 hs received instrue tions to prepare a lease for two years. He wrote a draft in the Shannon office at the time, and it was initialled by both parties and signed, in 1924- he received instructions to prepaie a further lease for two years. WORK ON THE FARM.

GedTge Bacon, labourer, Paremata, son of the defendant, gave evidence ss to sharemiiking in 1921. Tue arrangement proved unsatisfactory, ana a lease followed. The boundary fences then were sufficient to keep stock out. A stock yard was put up by witness and the others on the farm, and Carter was satisfied with it. Carter was also satisfied with their work on the fences. To Mr Moody.—Witness was on Carter’s place most of the time after 1921, being away from it only about nine months. There was a great deni of ragwort on the property when he first went on to it. The practice on the place was to chop it with a reap-hook. Ernest Charles Bacon, farmer, Ihakara, son of the defendant, stated that he was; working under a sharemilking agreement in 1921 for about nine months, with liis brother. At the end of that time they decided to try to lease the place. The arrangement was that their father, the defendant, was to lease the property. Witness continued to work for his father until the end of 1926. When defendant took' over the place the dividing fence was ly'ng flat. The stockyard which they put, up when they were share-milking was made of white pine saplings out of the bush, and the plaintiff was satisfied with it. The fences were in good order on the boundaries when defendant took over, and they were renewed with some posts by the defendant at the end of his lease. There was plenty of ragwort when they

went on to the property. - One season they paid a man to cut it. He did not think that the ragwort had increase*] when they left, and there were only two or three blackberry bushes. Gaiter expressed satisfaction with the condition of tlie farm when they were about to leave, but requested one or two repairs. Subsequently plaintiff would not, lot them go on to the property to finish the repairs. The fences had suffered since the defendant went out.

To Mr Moody.—lt was not true that they left blackberry growing under prat tie. ally every log. Hector Bacon, farmer, Jhakara, stated that he remembered what the property was like when his father took it over. The boundary fences were in medium order; the dividing fence had been knocked down; and was lying fiat. To Mt Moody. —Witness was not share-milking w.rh his. brothers.

Leonard T. Asluviu, eari/eoter, Shannon. stated that lie d-d some work for Car Ur in Svpiember, 3.921, on the property, 'ereMing a cow-shed wUii ire assistance of iwo oilier men. The fences were in a very bad'condition, so much so that they had to -tether their horse ill liie paddock. There was rngworc both on this and adjoining pjopo's ;os. Frederick Joseph Gray, who was assoc‘a tod with Ashwin on the carpeliter, ng job, stated that posts weic inn in for the stockyard and The Bacon brothers brought up baUens. Witness had previously been aha:e-mTk:ng :u Shannon and knew then whc-ie the property. was. He told the boys that if he Yieie in their place he wou.'u want the fences fixed up before taking the property over. Edward T. Exton, .carpenter, Shannon, stated that he was employed by the plaintiff to help to build the cowshed, with Ashwin and Grey. In 1219 or 1920, with two others, he was engaged for three days cutting ragwort for Carter. The seed was ripe then, and blowing about.

R. Grumwald, labourer, stated that he was employed by defendant in January, 1926., to cut ragwort. This took him about three days. It was not quite ripe enough to seed, so there was no danger in leaving the cut ragwort on the ground.

Arthur James Wild bore, former, Ihakara, a son-in-law of defendant, stated that the fences were in fair condition

at the end of Bacon’s tenancy. They had put in a number of posts, straightened the battens, and strained the wires, and made quite a good job of it. They also carried out repairs to the cowshed and the pig-sty.

CLAIM ANALYSED IN JUDGMENT,

In giving judgment, Ilis Worship stated that where a person had entered into an agreement for a lease with unusual covenants and the term of the lease was extended by mutual consent , then the tenant held the land subjeei to the same covenant as was contained in the agreement. In the last six months, tlierefoie, Bacon must be deem ed to have held under all thg conditions of this lease. The-first of the items of the claim was for rates to March, 1926, £l6 19s, and forjthc half year to January, 1927, on which date the .extended term expired, £7 11s lOd. fit was eoutoinled for the defence that Bacon had overpaid, when an account was taken of all his payments back to the beginning of the,tenancy in 1922. Unfortunately there was no agreement in writing relating to that first lease of 1922-24, and the Court was driven to • rely on the evidence of the parties and all the ciicnmstances. It was very consistent with 'probability that ‘Bacon agieed to pay these rates on his fi:ai lease. There were some payments on that first period vhich could only be accounted tor as payments on account of rates.’ Bacon said that luuh'ng paid over and above his rent wnuid bo in respect of' rates. 1 h n y had had '.be evidence of Carter llr-ti after the e:qu : '-, at ion of the whole, term he approached Ba n on, thinkTig that the !:■. .n owed him two and a-half years’ rates; but Bacon said there were only IS mouths’ rates due. His Worship .bought that tlie agreement of 1922-24 must have been s.'mTar in terms —though not reduced into writing, except in the shape of a draft —to the agreement of 192426. He thought those rates were recoverable; and judgment vvril'd tucicfore be given for £l6 19s and £7 Hs Kid. The next serious item was in'regard to damages in jeripeckof repair of fences. There vras the usual coreiunT to keep them in repo’ ’, rnlreot to fair wear and tear. He- had cons dc: able doubt as to the condition of these fences when Bacon first toon over Jie lease. It seemed that those fences were in a very ncgle'eted state from the beginning, with the exception of the boundary fences, which.were practically in

as good condition when Bacon went out. His Worship was unable'to find that there had been any serious breach of covenant in that item, and it would be disallowed. The strainers for the gate were undoubtedly put in, and that Jem should be allowed, £1 11s 6d. With regard to the pig-sty,' there was no doubt that it was blown down and Bacon and his sons neglected to put it up properly/ Probably they did not use it much; it had been stated that the walls were lying flat and the roof was missing, and that they put on only a makeshift roof. Something should be allowed in respect of this item, and £5 was not an unreasonable claim. The lessee was bound to keep the sty in tenatiiable repair notwithstanding the accident‘of the gale. In regard to the spouting on the roof of the cowshed and the repairing of the door-and the tank, that was not contradicted,- and the claim of £1 10s must be allowed. The next serious item was alleged broach of contract to eradicate noxious weeds. This was a'covenant that was undertaken lightly bv many tenants, ;*it. it was a covenant that might I)6' imposed. In this case the tenant had undertaken to comply with, the provisions of.tlie Noxious Weeds Act, 1908, r.nd that meant, that he must do. his best to . keep the weeds down. The question was whether he had done''his best. There was evidence that in the lhakara district there was a good deal of ragwort; but- His Worship was satisfied that the defendant and his sons did not do all they might have done towards eradicating it, or keeping it down. -The difficulty was in determining the degree to which they allowed it to spread. His Worship arrived at the conclusion that, although it .was probably -a little more serious in 1922 than the plaintiff said, still it whs very much more serious in 1926-27. On that'head he proposed to allow £25 damages.

Judgment was accordingly entered for the plaintiff, for £57 12s 4d, with costs £lO 14s.