DISTRICT COURT

Wairarapa Daily Times, 29 March 1889, Page 2

DISTRICT COURT

masterton.-thursday; i

MARCH 28th.

(Before District Judge H. W.Robin- ■ . son). ;■ : 0/

G. W. Phillips v - Alfredton Road Board.—Continued.

His Honor in summing up said it appeared that plaintiff worked on a bridge erected on the deviation by the Alfredton Board, and had also erected a gate for his benefit across the road, whiol) the Board" had paid for. The question was, did these acts constitute acquiescence. With regard to the gate, the chairman of the Board had said," If you erect it, I will remove it or throw it down," and from this it might he concluded that in erecting the gate the plaintiff was asserting a right, aud not conceding the right ot road. The road having been originally laid off by the Masterton Board, lie considered the Alfredton Board could not be held responsible for the original wrong dohig, if any, but merely for a continuance of the wrong after plaintiff had urged his couiplaint. They had also to consider whether in neglecting to seek his remedy earlier the plaintiff had disentitled himself to redress through contributory negligenoe. The jury found on the first issue for plaintiff, damages £6O. • James Bentley v Donald Donald, Captain of the Masterton Rifle Volunteers.

The following were the Jury Messrs L. Evans, (foreman), G. E. Chamberlain-, J. W, Taplin, and Hagley. ■ - Mr Pownall for plaintiff, Mr Beard for defendant.

The plaintiff claimed'(l). that on or about the first day of June, 1888, the defendant let to the plaintiff, and the plaintiff took from the defendant a tenancy of the building known as the Masterton Volunteer Drill Hall, situate in Hall-street, in the borough of Masterton for the term of twelve calendar monthß, from the first day of Jung, 1888, at the rental of £BO for the year. (2). That the defendant , let the said Hall to the plaintiff, and the plaintiff took the same from the defendant for the express purpose of skating and dancing being carried on therein, (8). That relying upon such tenancy the plaintiff went to great expense in buying skates, and in other incidental expensos in connection witli the matter." (4). That about the eighth day of August, 1888, proceedings were commenced in the Supreme Court by the occupiers of the premises adjoining the said Hall to obtain an injunction against the plaintiff to prevent him carrying on such skating and dancing therein, and on the 22nd day of September, 1888, an injunction was issued stopping same(s). That the plaintiff defended the said suit for injunction to the best of his ability, and in doing so was put to a cost of £GO and over. (6). That in creating the tenancy aforesaid the defendant impliedly guaranteed quiet enjoyment of the premises to the plaintiff, for the purposes alleged in the second paragraph, and that the injunction and ouster of the plaintiff was a breach of such implied covenant on the part of defendant, by reason of which the plaintiff, put to the above expense of defence, lost the benefit of the balance of his term and had a large stock of skates thrown upon his hands, and was generally put to great loss, damage, and expense, wherefore the plaiotiff claims to recover from the defendant the sum of £IBO by .way of damages. The defence set up was (1.) That the defendant denies all and every of the material allegations contained in tho | Plaintiff's particulars of olaim. And, as a further ground of defence the defendant says—(2.) That the injunction referred toby the plaintiff: in his particulars of claim was issued by reason on account of the wrongful aols of the plaintiff. (3.) That on or about the 29th day of September, 1888, the premises referred to in the plaintiff's particulars, of claim, and all the residue of any terra tlion to come and unexpired were duly surrendered by act and operation of law that is to say by the plaintiff then giving up the possession of the said premises with the intention of putting an end to any term then unexpired. The following questions were agreed upon between counsel to submit to the jury (1) Whether the defendant did or did not let tho premises as mentioned in the first paragraph of the statement of olaim. (2) If so whether the premises were let for the express purpose of skating and dancing being conducted therein. (4) Admitted. (5) Did the plaintiff in returning the key to the defendant intend to release and give up all claim with reference to suoh alleged breaoh. (6) What damage if any has the defendant suffered,

James Bentley, the plaintiff, gave evidence in accordance with the particulars set forth in his claim. He said his tender was accepted by the 1 Committee. Lieut. Thompson was Chairman, aod he told him he could take possession of the Hall. Thompson gave him possession, Did not particularly see Captain Donald, but looked upon him as landlord to whom lie was liable for rent, i'hey tried to put a trap upon him and presented a! dooument for him .to sign. Told Captain Douald that - the document did not protect him, and he offered to have one prepared. Had seen Mr Pownall whon lie spoke to Captain Donald. Had used the building for the purpose for which it was let to him. Was put to the expense of £6O in defending the oaseinthe Supreme Court, and paid £7O for skates that were only worth 120 when the rink closed. Paid £5 for gasfitting, and other moneys for 'repairs, &c.. Henry Bentley, father of plaintiff, deposed tliat he gave up the keys of the . Drill Hall to Captain Donald together with a letter from his son to to defendant. -

Cross-examined: Laid the keys on the table in front of Captain Donald, Did not know whether Captain Donald took up the keys, Would not swear he did not refuse to accept the keys. I Joseph Hooper stated he remembered the time Mr Bentley took the Hall, Did not know for what object, Thero was ai disoußsion as to roller skates. If the Captain! were .present he would' be the one to let the Hall on behalf of the corps. Could not say who let the Hall tc plaintiff. Had been asked jf he would let the Hall and said lie had no power of himself. Would have to see Lieutenant Thompson or Captain Donald, Whon the discussion .took; place it was at ft meeting of the Company. Could not say what the Hall was to be let to Bentley for. Could not say that 'the /Volunteers contemplated letting the Hall for skating.' Could not explain the resolution of the "Volunteers in reference to roller skates. vJ y ;.: Cross-examined: Hsd not seen Mr Bentldy's Did not know the

conditions on Svbioli the Hall was let;/.'■ ;.;v ; i. "Re-examined: Was present 'at a mooting; at'whioh Captain Donald presided on May 3rd. Mr Beard objected tbit the minutes of what took place before the Hall was let were not evidence. His Honor allowed the objection. Mr Pownall said he was seeking to show the purport of the conditions, He could produce authorityfor allowing that evidence, and quoted Fisher's Digest 880 in support of his contention. • Mr Beard said skating was not an expressed condition.

'Mr Pownall said it was thepurpose fori wliioh the tenancy existed.' The expressed conditions were bearing upon it. Tho plaintiff was only carrying out the purport of his bargain. The conditions' had reference to keeping the floot in repair, fa, His client took the Hall for a certain object, and the conditions arose out of that object. He contended the jury had to consider! Did the plaintiff in conducting the Hall 'jj as a skating rink do so with the ■' consent of the landlord ? He quoted other authorities showing that if the lessee did acts that we a nuisance the' lessor was liable as being responsible for his premise's. He claimed that where a man took premises for a certain uSe he was entitled to that uso, and if that usage was stopped the landlord was liable, -' His object was .to show the premises were let for the purpose of a rink "■ and his client was disturbed in his ; occupation. His Honor said they were sticking at,the point as' to whether itwas possible to show the object of the contract outside of tUe written conditions. If it could be shown that it was contemplated between the parties, although not expressed in the contract, was yetsomething thatmust Wk, have been contemplated, then he ™ thought . the evidence might be received. Mr Pownall said he was not seeking to impart a new condition, but wished to show the purpose of- the tenancy. He was prepared to" show v tho building was licensed as a publio } Hall. Mr Beard said it was a private Drill Hall.

'Mr Pownall, to witness—Don't you hold a license for the Drill Hall 1 I do not. Has not the corps a licenso ? I don't know. •His Honor said the'license would not prevent it being served with an injunction, He intimated that ho could not receive evidence as to'what took place before the oontract was entered into, No discussion would be binding on the two parties that took place before the conditions were ' ' put in writing. Mr Pownall applied that the word " "express" be Btruck out of his bill of particulars where it said the hall was let for the express purpose of skating. W His Worship said he would not make the amendment for the moment ■ butif necessary would reserve the right to do so, .

Samuel Minifie stated that he was one of the tenderers for the hall at the time it was let to the plaintiff.. He was present at a meeting of Volunteers previously when it was decided to call for tenders for leasing the hall, He tendered without seeing thß conditions, He understood from the meeting that the hall was to be used for skating. . Mr Beard pointed out that the meeting was prior to the contract, and was not evidence.

Cross-examined: The tender produced 'was in his brother's handwriting. It -was not the tender .he' sent in, although it bore liis signature, There was another one Bont in for £BS. The second one was put in after lie gained fresh information, tit He vi'as led to believe from Kibblewhite that the hall was to be let for skating. He was told what the conditions wero. Did not see them in writing. His Honor intimated that oould not exclude evidence where it was ■ shown that plaintiff was induced to tender by defendant's agent stating what the object was for whioh the Hall was to be let.

A lengthy discussion took place, and a note of Mr Beard's objection to the ruling was taken. Mr Pownall, from the rough minutes of a meeting on May Brd, read a resolution that was passed that roller skates only be used. Witness stated he was presont at that meeting - and that tho moeting was correot. Mr Pownall read a motion whioh was negatived "That the Hall be not let for skating." Another resolution was read " That the Hall be to any member of the Corps on the;!|pmost favorable terms.

Mr Beard produced tie offioial minute book in which no mention was recorded as to.the objectfor wbioli the Hall was to be let.. A comparison ■ of tho ;books showed that the entry of tho minutes from the rough .minute book had not been copied in full. Thomas Charles D'Arcy stated he was requested by Lieut. Thompson to draw an agreement to be signed ■ between James Bentloy and his guarantor and Captain Donald. Cross-examined: Lieut Thompson instructed- him, Kibblewhite was also present when Bentloy signed it. It embodied all the conditions given to him, and was agreed to by Mr Bentley. This, concluded the case for the . . plaintiff. Mr Beard submitted plaintiff must be nonsuited, as thore was no case to go before a jury. He never remembered a case on the part of a plaintiff so trumped up than the present one. jfc. Had liia learned friend known what would have come out in evidence ha would never have thought of coming . - ■ • into Court. Plaintiff was endeavoring ' to reoover £l6O, a very moderate sum! because as he complained he had been injured in the property let to him. There was no attempt to show Captain Donald was the party who had entered into the contract, or was mixed up at all in the matter except that he was present at the annual meeting when the. question of authorising skating \yas 'disoussed, That meeting rolegated to a Committee the letting of the Hall, and that Committee as delegates of the meet* ■■■' ing drew up certain conditions and called for tenders. The plaintiff admitted the only conditions were those entered in the minute book and ; ' contained in a certain document put ' in. The letting may have been by the Committee but was cai'tainly not by Captain Donald. Captain Donald f/ was not the owner, or even the person - in whom the property was vested, and plaintiff was sueing him aa captain of the Yolunteers, The Defence Act provided that all property, when not vested in Trustees, should be in the * - Commanding Officer of the Corps. The lease of the Drill Hall was vested in Trustees and they we the proper i' rparties .to let the building. Assuming CaptainDqnald wa# the proper p»rty,* Bectiou 115 'oi the .

provided no prosecution against an ) . officer in pursuance of the Act should • ■ be Commenced after the expiration of three months,. nor. till after due J noticed been given in writing "' BO tbfS'in any case plaintiff must ; ' fail. Iri addition, evidence weht to ; ", show that the key was handed .'over : and a surrender made of the balance of the lease. Plaintiff also was suing for damages arising by reason -• ofhis' own default. Plaintiff after Mailing possession of. tho premises !' - deliberately went and committed a JjK liuisanco and was restrained by an injunction of the Supreme Court. I Plaintiff was seeking to recover |is.': . damages for a wrong not done by I , defendant but by himself. The s: District Court Aot decided if His ■ Honor considered thero was not a ! < -■'j sufficiently strong case to go to a ' jury it was lawful for the. Judge to „ i enter a nonsuit, none of the points J raised lwd been proved and it would be a waste of time of the Court for to go beyond the present staged , , Mwßkmall submitted that unless evidenra'was produced to the contrary there was a case for the jury ( • on the first count. He had shown in evidence that Captain Donald was present at the meeting when it was resolved to let the Hall, and upon certair conditions. tenders were called, In reforence to remarks by bis' learned friend that the case was trumped up, be had never listened to such a trumped up -v.. 'endeavor as the present, where the Captain attempted to avoid the actions of subordinates. The person who put his client in possession was the Captain of the Masterton Volunteer Company, and it was no uso taking action against anyone else. I Captain Donald was also one of the Trustees in whom the property was , vested. There was nothing to show that tliA|Trusteo3 appeared in the matter™ all and he could only proceed against Captain Douald. Sworn evidence had been tendered | that Captain Donald was the landlord, and unless rebutting evidence was nroduced it must go to the jury. . also swore the premises iferolfltto liirn by Captain Donald forllfe purpose of skating, and had it not been for that he would never ; have gone in for the Hall at all, and unless evidence was produced to the contrary that must be considered to have been part of the bargain. As proof that Captain Donald was : the landlord nvidence had proved the 1 key of thopremises had been returned to him. What the surrender had to do with the claim he could not see, Ifcwa3 a question for the jury to ' decide whether the plaintiff in giving 1 tip the key surrendered his claim,He considered he had shown there was a case for the jury. His Honor said there was no case to go to a jury.. There was nothing , in the evidence to show that defendant ] was lessor to the plaintiff, and unless I that c(jM<be shown it would be use- < less toWbmit any question as to , terms. It was manifest the property ' "' was vested in Trustees, and it was 1 competent only for them to let it. It was useless wasting the time of, the jury in pointing out to them the extrinsic evidence as to the object in | letting tho hall when there was no evidence of oontract between the parties, f Hejould record a nonsuit, Adocu- 3 mejLhad been put in, but it was not . sig&ti and if put in as a contract it j was unstamped, There was nothing 8 to connect Captain Donald with the , contract, and he would have to tell e I the Jury so..' - i > Plaintiff was non-suited with costs, 6 . £lO 7s. «

FRIDAY. William Ely v. H. \V. Erigga.— Mr Tosawill for plaintiff, Mr Bunny for defendant. Claim £l9B for breach ofconM; also misrepresentation. ' . MrTosfPJll, in opening the oase, said i. the defendant claimed for a piece of land containing 100 acres, section 20, in the Tiraumea Block valued at .£Blos an acre. In February or Maroh the plaintiff oamo up to defon dant, and informed him that he wished to buy the property. The 'defendant ultimately agreed to sell the property to plaintiff. Tbe mis- ' representation was contained in a letter of the 24th May, iu which defendant stated that everything was settled, and there would be no further trouble in taking possession, His client after taken the land had been forcibly exjected by William Hull. SBly, sworn, stated he was a in Pahiatua. He came from g to Pahiatua in February or March last, Briggs took him out to the land and showed him round saying it wjua splendid piece of ground, and herald like to have it himself. When he came to Pahiatua be signed anagreement which was subsequently cancelled. After tbe receipt of a letter from plaintiff he signed the agreement dated Gth April, He took - possession of tbe land and put stock on it in consequence'of the letter . dated 24th May. Did not know who owned the land, Did not know Hull •had any claim on it until he heard the decision of tbe District Court.

Ho built a house and made other

improvements, Was forcibly ejected by Hull who presented aloadodgun at him, Hull also impounded his cattle. Went to Mr Briggs after Hull drove the cattlo away, When lie went back to the house Mr Hull was insido ami had a gun in his band and threatened he would blowanyones brains out that came there, • Briggs told him he had a good claim against the assignee. Witness said - the claim he would have was £2OO, Mr Briggs advised him to go in for £BOO. Witness prosecuted Hull for forctilontry and presenting a gun atjMpoodville Court. The J.P's rulea they had no jurisdiction, Mr Briggs told liira to keep going on , ; v ' with the improvements bo woultl ' make the section all right. Mr Briggs asked him if he would be il, willing to take tbe section over to* again if ho could get it for Ll5O or mu to,