SUPREME COURT

Southland Times, Issue 21091, 24 May 1930, Page 7

SUPREME COURT

daley v. McDonough. AN APPEAL ALLOWED. His Honour Mrs Justice Kennedy delivered his reserved judgment in the Supreme Court yesterday in an - appeal on a matter of law and of fact from a recent decision of the Magistrate’s Court sitting at Invercargill. The appellant (plaintiff in' the lower Court), was John Daley, of Grove Bueh, farmer (for whom Messrs H. J. Macalister and C. S. Longuet appeared), while James Cumming McDonough, of Invercargill, company representative (defendant below), cited at the respondent, was represented by Mr Eustace Russell.

The statement of" claim in the Magistrate’s Court action set forth that by an agreement made between the plaintiff and the defendant the plaintiff agreed to lease to the defendant and the defendant accepted as tenant the plaintiff’s land and tenement at Seaward Bush, for the term of five years from October 1, 1924, the conditions of the agreement being “Landlord to put fences and gates in order and tenant to keep same in order, property to be left in grass at end of term.” The defendant it was alleged, did not keep the fences in order and did not leave the property in grass at the end of the term. The plaintiff, therefore, claimed the sum of £6O as damages for such default. The Magistrate held that, before the plaintiff, by his solicitors, Messrs Longuet and Robertson, wrote to the defendant that he would not be released from the lease in question, he (Daley) did in fact verbally release such defendant, for whom his Worship accordingly gave judgment. It was from such decision that the appeal was brought. In the course of a lengthy reserved judgment, his Honour exhaustively reviewed the evidence tendered in the Court below, and came to the conclusion that the respondent had not, in fact, been released by the appellant. Continuing, his Honour said the evidence showed that there was an intimation by Daley of his willingness to release should a “reliable” tenant be obtained. The landlord, and not the respondent, in the case in question, was the judge of the reliability of the tenant taking over. His Honour allowed the appeal with £9 9/- costs and disbursements, and directed the case to'be remitted to the Magistrate to enter up judgment for the plaintiff for such damages as he finds are proved, together with such costs, on the Magistrate’s Court scale, either for the plaintiff or defendant as is proper. “The case is so remitted,” concluded the judgment, “because the learned Magistrate’s view as to damages (if any) in respect of the fences may, no doubt, depend on his view of the credibility of the plaintiff and of the defendant, and whether consequently he found that the plaintiff had himself: failed to discharge his initial obligation of putting fences and gates in order.” '