February 18, 1899.
THE ESTATES GAZETTE
262
NEWTON COUNTY COURT.
February 10.
(Before His Honour Judge Woodfall.)
ACTION FOE DILAPIDATIONS.
WATSON Y. EDDY.
Mr. John Watson, architect, of Torquay, sued Mr. William John Eddy, lodging house keeper, of the same place, for damages for breach of contract to keep the interior of No. 2, Portland-place, Torquay, in good and substantial repair.
Mr. T. W. B. Hutchings (Teignmouth) appeared for the plaintiff, and Mr. Isodore Carter (Torquay) for the defendant.
The case for the plaintiff was that in September, 1889, a lease for six years was entered into between the parties, defendant agreeing to keep the interior of the house in substantial repair and condition. The rent for the first three years was £35, and for the remaining three years £40. At the expiration of the lease defendant was told that if he continued in occupation the rent would be increased to £45, and the terms be the same as those in the old lease. He remained as the yearly tenant of 2, Portland-place, and also of the adjoining house, which he also took at a rental of £50 on the same terms. On March 25 of last year he received notice to quit, and left at Michaelmas. Plaintiff subsequently wrote defendant informing him that the house was open to the inspection of himself and his surveyor with a view to seeing what repairs were required. No response was received, and Mr. E. Richards, plaintiffs architect, offered to act also for defendant to save expense. Then defendant repudiated his liability. Mr. Richards adjudged the dilapidations and rent lost during the time the house was repaired at £5117s. 4d., but after abandoning an amount sufficient to allow the action to be heard in the County Court and the sum claimed for loss of rent, the claim was reduced to £46 14s. 6d. Defendant paid £5 into Court.
The plaintiff, in cross-examination, admitted that the house was not in good condition when defendant at first occupied it, but he let it at £10 less than was usual in order that defendant might do what repairs were necessary. When defendant left the house it was in a worse condition than when he entered into occupation. He (plaintiff) subsequently spent £30 upon the house and let it again for £45 a year.
Evidence for the plaintiff was also given by Messrs. Galt, E. Richards, architect, and E. P. Bovey, builder.
The defence was that after the expiration of the lease defendant declined to continue any tenancy under a document which did not provide for fair wear and tear, and that the tenancy was subsequently continued under a verbal agreement. It was also contended that the lease in question was nothing more than a general covenant of repair, and must be read in accordance with the age and condition of the premises when they were let. They were then in a poor state of repair, but all the necessary repairs during the tenancy were done, and when defendant left they were in better repair than when he entered. Before he left he had everything done that was necessary, and, Mr. Carter said, the claim was a monstrous one. The £5 was paid into Court by defendant because he wished to be on the safe side.
Evidence as to the repairs done by the defendant during his tenancy and the state in which he left the house was given by the Rev.
H. M. Downton, who lodged with plaintiff for 10 years ; Mr. T. Leaman, builder, who valued the dilapidations when defendant left at £1 3s. 7d. ; Mr. George Hill, painter; and Mr. and Mrs. Eddy.
His Honour said it seemed to be a common practice in this neighbourhood to try to make a profit out of dilapidations. He had come to the conclusion that under the covenant the defendant was not liable. He had kept the covenant and committed no breach of it, but left the premises in good and substantial repair. When defendant gave up the tenancy he was not a tenant under the lease at all. The lease came to an end at Michaelmas in 1895. It was a grossly exaggerated claim, and had it not been for the payment into Court of the £5 he should have given judgment for only £1 8s. 7d. Defendant having paid £5 into Court, judgment would be for the defendant.
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tioned sum had not become a charge because there was no evidence of any express demand for payment having been made upon the plaintiffs. But it seems to me that the notice of June 9 was all that was necessary to constitute the £112 6s. 7d. a charge upon the owners. By virtue of section 77 of the Act of 1862 the owners of premises abutting on a new street are made liable to the expenses or estimated expenses of paving, and! the section directs that the costs of paving shall be apportioned by the vestry and shall be recoverable either before the work shall be commenced or during its progress or after its completion, and such amount shall be recoverable from the owner of the premises either by action at law or in a summary manner before a justice of the peace. As soon as the vestry, by a formal act or resolution, charged the owners of the houses abutting on the new street with the expenses and apportioned and charged the particular sum of £112 6s. 7d. in respect of the premises of the plaintiffs and gave notice to the plaintiffs of the apportionment and charge, I think the charge became operative and the plaintiffs became Table to pay the same. And if they paid it after they became liable to pay it I think they are entitled to recover it from the defendant by virtue of his covenant. The plaintiffs were under no obligation to wait for any formal demand or for any threat of proceedings. Nothing further was necessary beyond the service of the notice of June 9 to render the plaintiffs liable to pay the sum apportioned and charged. The cases decided on the provisions of the Public Health Act, 1875, seem to me to have no application to the present case, because the provisions of that Act and the machinery provided by it are altogether different. 1 was impressed with the argument on behalf of the defendant that section 96 of the Metropolis Management Amendment Act, 1862, seems to require a demand to be made before the amount charged could be recovered. But when that section is carefully considered in connection with the repealed sections 217, 218, and 219 of the Metropolis Management Act, 1855, I think it is clear that the object of the section is merely to give the local authority a discretion to require payment of any costs or expenses which the owner may be liable to pay, either from the owner or from the occupier, subject to certain provisions which are inserted for the protection of the occupier. It does not impose any new demand as a condition of the owner’s liability. The plaintiffs, in my opinion, were liable to pay immediately after the service of the notice of June 9, 1898. They did pay the amount on July 14, 1898, and I cannot find any valid reason for exempting the defendant from the burden of the covenant they have entered into. There is one other point I should^ mention. On May 19 the plaintiffs agreed with certain persons to sell the property in question. The day fixed for the completion of the purchase was August 11, and until that date the plaintiffs were by the terms of the agreement to be entitled to the rents, and were to bear all outgoings. I think it is quite clear that until August 11 the plaintiffs were owners within the meaning of the interpretation clause of the Act of 1855. In the result, I must give judgment for the plaintiffs for £112 6s. 7d., with costs.
(Before Mr. Justice Darling.)
ACTION BY QDANTIIY SQEVnYOBS.
RAVEN AND ANOTHER V. MONDAY AND SONS.
The plaintiffs in this case were quantity surveyors, and the defendants were builders and contractors. In 1894 the City of London wanted some buildings constructed at the Deptford Meat Market, and the defendants carried out the work at a cost of about £20,000. In reference to the work differences arose, and claims were made upon the one side and the other. There were also additions and omissions in reference to the contract, and the plaintiffs did a good deal of work as quantity surveyors in connection with the work. In this condition of things the City solicitor offered to recommend the City Committee to settle the whole matters in dispute by a payment of £5,000, and this proposal was accepted by the defendants, and the money was paid to them. The plaintiffs now sued the defendants for money had and received upon their account, their contention being that the amount paid to defendants to settle the whole of the matters in dispute must be taken to include the amount due to the plaintiffs for the work they had done in the course of the building operations as quantity surveyors. The defendants, on their parts, denied that in the course of the settlement of the various claims they had incurred any responsibility to pay the amount claimed by the plaintiffs.
Mr. Hudson was for the plaintiffs; and Mr. Jelf, Q.C., and Mr. Hugh Fraser for the defendants.
His Lordship, having heard evidence upon the one side and the other, gave judgment for the plaintiffs for £299 14s. 3d.
unnecessarily long time over the work; and that a pile of soil impregnated with sewage matter was left in the back yard. The plaintiff fell ill, and her business suffered in consequence, as was alleged, of the manner in which the work was done.
The defendants’ case was that the pipe opened up by them was a sewer within the meaning of the sections referred to, and that the work was done without unnecessary delay or any nuisance being caused.
It having been proved that the sink and a water gully on the plaintiff’s premises drained into the pipe, the plaintiff's counsel abandoned the point that the pipe was a “ drain” and not a “ sewer.”
The jury ultimately found a verdict for the defendants.
February 13.
(Before Mr. Justice Bruce, without a Jury.)
CHARGES FOR PAVING NEW STREET: CON-
STRUOIION OF COVENANT.
WIX AND OTHERS Y. RUTSON.
In this case, Mr. Macmorran, Q.C., and Mr. George Wallace appeared for the plaintiffs ; and Mr. H. L. Manby for the defendant.
The defendant was assignee of a lease made in March, 1882, whereby the plaintiffs’ predecessor in title demised to one John Thomas Bonner certain land in Wandsworth for the term of 21 years. The lease was determinable by a six months’ notice, and contained a covenant by Bonner for himself and his assigns to bear, pay, and discharge during the said term all taxes, charges, rates, duties, tithes and tithe rent-charge, assessments, and impositions whatever which were then or might at any time thereafter be taxed, charged, rated", assessed, or imposed upon the premises or any part thereof, or upon the landlord or tenant in respect thereof (the landlord’s property tax only excepted). In April, 1898, notice was given by the plaintiffs to determine the tenancy. In May, 1898, the plaintiffs entered into an agreement to sell the property. In June, 1898, the Wandsworth Board of Works gave notice to the owners of the apportionment of the sum of £112 6s. 7d. for the expenses of paving a new street on which the premises abutted. The notice fixed no date for payment. In July the plaintiffs paid the sum due. In February, 1899, five months after the tenancy had expired, the works were commenced. The plaintiffs now demanded repayment of the amount of the assessment, and upon their behalf it was contended that the sum was a charge or a duty charged or imposed on the landlord in respect of the premises. “ Thompson v. Lapworth ” (L.R., 3 C.P., 149), “Allum v. Dickinson” (9 Q.B.D., 632), and “Brett r. Rogers" (1897,
1 Q.B., 52o) were referred to. It was contended for the defendant that the notice served by the local board was not a demand under section 96 of the Metropolis Management Amendment Act, 1862, but was only an estimated apportionment, and not taxed, rated, assessed, or imposed upon the premises within the meaning of the covenant sued upon. The plaintiffs, or those to whom they sold, would alone benefit by the improvement, and it would be a startling result of the law if the tenant had to pay under such circumstances, having ceased to be tenant months before the work began. Such a case was never contemplated by the covenant (“Wilkinson v. Collyer,” 13 Q.B.D., 1; " Baylis v. Jiggins,” 1898, Q.B. , 315; “ Batchelor v. Bigger,” 60 L.T., 416). In reply it was contended that, under the Metropolis Management Acts, the money became due as soon as notice of apportionment was given.
Mr. Justice Bruce read the following judgment :—In this case I entertain no doubt about the construction of the covenant. I think that the words clearly include charges made in.respect of paving a new street under section 77 of the Metropolis’ Management Act, 1862. The case of “ Thompson v. Lapworth ” seems to me to be an authority quite in point. But the case is one of apparent hardship, because the interest of the tenant was determinable by the landlord on giving six months’ notice. Such notice was given in April, 1898, so that the interest of the tenant came to an end in the following October. On June 9, 1898, the notice of apportionment was given by the local authority charging the owners of the premises in question with £112 6s. 7d. This charge was made before the work was commenced, indeed it was stated upon behalf of the defendant that the work was not commenced until February, 1899, and it was said to be very unreasonable that the tenant should be bound to pay the cost of the works from which he could derive no benefit. But my duty is only to give effect to the agreement the parties themselves have entered into, and I cannot give the defendant relief merely because he has entered into a covenant which bears hardly upon him. Upon behalf of the defendant it was contended that- the appor-
Mr. Humphreys-Davies then entered into a calculation based upon the supposition that the land was laid out for building.
The case was adjourned.
Among the experts retained for the company are Mr. E. H. Bousfield! (Messrs. Edwin Fox and Bousfield, 99, Gresham-street, E.C.); Mr. A. L. Ryde, F.S.I., 29, Great George-street, S.W. ; and Mr. C. W. Willoughby, P.A.S.I. (of Messrs. Weatherall and Green, 22, Chancery-lane, W.C.).
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HIGH COURT OF JUSTICE.
QUEEN’S BENCH DIVISION.
February 10.
(Before the Lord Chief Justice and a Special Jury.)
DR ON OR S 4WER ?
DUNCAN V. THE FULHAM VESTRY.
This was an action brought by Miss Harriett Duncan, the plaintiff, against the defendants for damages for trespass to her premises and for causing a nuisance thereon, and for negligently and wrongfully taking up a certain drainage pipe on her premises.
Mr. Clavell Salter and Mr. A. Neilson appeared for the plaintiff ; and Mr. Witt, Q.C., and Mr. Mackaskie for the defendants.
The case was heard before Mr. Justice Law-rance and a special jury on November 28 last. Two questions were put to the jury : (1) Was the pipe a drain or a sewer? (2) Was the work reasonably carried on without unnecessary or avoidable annoyance? The jury found, in answer to the first question, that the pipe was a sewer, but they'were unable to agree as to the second question. The case now came on for a second trial.
Mr. Witt, Q.C., contended that the first issue—namely, whether the pipe was a drain or a sewer—having been determined by the former jury, could not be retried, but that the only question left was the question of annoyance. He cited “Marsh v. Isaacs” (45 L.J., Q.B., 505).
Mr. Salter said that there was no verdict in the action. The jury were only asked to assist the Judge by finding two questions of fact. Their answers to these questions did not bind, or would not have bound, either party.
Mr. Witt, Q.C., contended that there were two distinct causes of action. The first was trespass, depending upon the assumption that the pipe was a drain. The jury found a verdict for the defendants with regard to that cause of action. The second cause of action, which was an alternative cause, was that the defendants did work, which they were empowered by statute to do, so negligently that it caused an unnecessary nuisance. As to this cause of action the jury were unable to agree. This question only could be retried.
Mr. Salter : There is only one cause of action —namely, trespass. The defence is—The pipe is a sewer, and the Metropolis Management Act, 1855, section 69, authorises the defendants to enter the plaintiff’s premises for the purpose of repairing the sewer. The reply is, The statute only authorises the defendants to enter and do the work under certain limitations. One of these is that the work “ shall be so done as not to create a nuisance.” They did, in fact, create a nuisance.
The Lord Chief Justice retired to confer with Mr. Justice Lawrance. On his return he said that he had conferred with both Mr. Justice Lawrance and Mr. Justice Channell. They both concurred with him in thinking that, if the defendants had applied to have judgment entered with regard to the issue determined by the jury, it might have been entered ; but that, no such application having been made, the safer course was to try the issue again.
The trial then proceeded.
It appeared that the plaintiff was a dressmaker. She occupied No. 653, Fulham-road. On October 15, 1897, the defendants sent men to open up a pipe running under the plaintiff’s premises. The pipe carried the drainage of the neighbouring house, No. 651, to the main sewer in the Fulham-road. The plaintiff’s case was thaïthe pipe was not connected with the drains of her premises, nor with those of any other premises ; that it■ was, therefore, a “ drain ” within the meaning of section 250 of the Metropolis Management Act, 1855, and section 112 of the Metropolis Management Act, 1862, and not a “ sewer ” ; and that consequently the defendants, having no statutory power to enter for the purpose of repairing “drains,” were trespassers. The plaintiff complained that, even if the pipe was a sewer and the defendants had a right to enter, they created a nuisance within the meaning of section 69 of the Act of 1855, inasmuch as they gave her no notice of their intention to open up the pipe prior to October 14; that the men took an