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Decisions of the Superior Courts of New South Wales, 1788-1899

Kemp v. Dobson [1829] NSWSupC 80

tenancy - distress for rent - partnership - quantum meruit

Supreme Court of New South Wales

Trial, 16 December 1829

Source: Sydney Gazette, 17 December 1829[1 ]

This action was brought to recover £62 10s. being one quarter's rent of certain premises in George-street, the property of Mr, [sic] J. D. Nichols, demised to the plaintiff.  The defendant pleaded the general issue.

Mr. Norton stated the plaintiff's case.

Mr. Isaac Nichols examined. -- The instrument now produced is a lease from me of certain premises in George-street, to the plaintiff, at the yearly rent of £250, to be paid quarterly; plaintiff entered into possession and paid me rent; defendant occupied the premises some time after that, and paid me rent at the same rate; formerly there was a partnership between plaintiff and defendant, but when defendant paid me rent, his name only was then over the door; I distrained of the premises for the quarter's rent ending the 11th October last, having first applied to defendant who referred me to plaintiff, who in turn referred me to defendant; I distrained on some chain cables, and defendant paid me the rent on the day they were to be sold; at the time I went to levy, defendant's men were in the act of taking away the chain cables; this, I think was on the 13th of July, but I am sure it was after I had applied to both parties for the rent; when the cables were formally released, on the 18th or 19th of July, defendant's men removed them from the stores.  [A paper to the following effect, in the hand-writing of the defendant was here put in and read:--  "Mr. Kemp, I hereby return you the keys of the stores rented by you from Mr. J. D. Nichols, having no longer any occasion for the same." (Signed) ``E. Dobson."]

Cross-examined by Dr. Wardell -- I gave defendant a receipt, when he paid me rent, on behalf of plaintiff; I considered either of the parties as my tenant; I took the rent from whomsoever would pay me; I do not know that the partnership between plaintiff and defendant is dissolved; I have heard it is; I do not know whether this tenantcy is in behalf of the partnership.

Bryan Murray -- I am a labourer and live opposite the new Custom-House in George-street; I know the premises formerly occupied by plaintiff and defendant; the names of Kemp and Dobson were over the door; sometime after, the name of Kemp was taken down, and that of Dobson only remained; while the two names were over the door, Mr. Kemp used to be constantly there, but after his name was taken down, I did not see Mr. Kemp so frequently; Kemp's name was also over a loft at the back of the premises, and was taken down shortly after the name was taken down from the front; his name was never put up after to my knowledge, and I do not believe it is up now.

Mr. Robert Jones -- I know defendant; I live at No.7, George-street; defendant was in partnership with plaintiff, and lived in some premises belonging to Mr. Nichols; the names of Kemp and Dobson were over the door, but since the dissolution of partnership, the name of the defendant only remained up; defendant now lives at the opposite side of the street, in Captain Thompson's premises; I have heard defendant say he had saved £100 or £150 a year by removing; I think it was in the beginning of April last that the partnership was dissolved.

Cross-examined -- I understood that the premises in question are let now, but they are not yet occupied; I do not know by whom they were let; after the dissolution of the partnership the defendant was to wind up the affairs; I heard plaintiff say, that he was ready to assign over the lease of the premises on certain conditions to be performed by defendant; I have heard something about an arbitration between the parties, but I have not understood that plaintiff refused to comply with the terms of the award; I do not recollect that I ever heard that he did.

This was the plaintiff's case.

Dr. Wardell addressed the assessors on behalf of the defendant, and contended that there was no proof whatever of use and occupation by the defendant from the 11th of July to the 11th of October. 

The following witnesses were called for the defence.

Mr. Henry Donnison -- I am a merchant in Sydney; I know of a partnership having subsisted between the plaintiff and defendant, which is now dissolved; I have heard that the premises in question were to be assigned to the defendant, but that plaintiff refused to comply with that portion of the award, unless defendant gave him security for the debts of the firm; I had some chain cables in the stores of Kemp and Dobson when they were in partnership, which were removed at my instance when I heard they were quarrelling; I believe, from having seen the partnership books, that defendant paid £100 more than the award made by the arbitrator at the dissolution of partnership.

Cross-examined. -- The award is in the hand-writing of Mr. Gregson, and I think I saw the agreement by both parties to go to arbitration; plaintiff said he would not give up the lease unless he had security for the payment of the debts of the firm.

Mr. Joseph Thompson.-- I have been pretty well acquainted with the affairs of Kemp and Dobson, and the matters that led to a dissolution of partnership; I have heard that there was an award made by the arbitrator, and shortly after I heard plaintiff say he would not abide by it; the partnership had been dissolved at this time; plaintiff told me that Mr. Gregson had awarded him less than defendant was willing to allow him; I had a particular reason for knowing the state of the partnership affairs; there were executions lodged in the house for private debts of the plaintiff, and being apprehensive that property I had sold to the firm would be sacrificed, I consulted the defendant of the subject, who informed me, that there was plenty to pay all the creditors, but if the property were sold by the Sheriff it would not produce half-a-crown in the pound, in consequence of which I assisted defendant to pay off the claims; it took upwards of £400 to pay off the executions; I also know that defendant paid a bill of £100 for plaintiff; it was plaintiff's private debts which embarrassed the firm.

Mr. Norton replied to the defendant's case.

The Chief Justice summed up, and left it to the jury to say, whether the defendant had entered on the premises in virtue of a promise made him by the plaintiff to assign over the lease; and if so, whether such promise had been broken.  If the undertaking had been violated, the defendant was entitled to leave at any moment.  If , on the other hand, they were not satisfied of such breach of agreement by the plaintiff, the defendant was then in the nature of a tenant at will, and liable to the plaintiff, if he had entered on a new quarter at the time he gave up possession: The case, however, was one of quantum meruit, and it was for the Jury to say what compensation they would award to the plaintiff for such time as it appeared to them there had been an occupancy by the defendant, subsequent to the expiration of the last quarter for which he paid rent.

Verdict for the plaintiff, -- damages £31 5s.

 

Notes

[1 ] See also Australian, 18 December 1829.

Published by the Division of Law, Macquarie University