Metge v Kavanagh

• Jurisdiction: Ireland
• Judgment Date: 06 June 1877
• Date: 06 June 1877
• Court: Exchequer (Ireland)

Exchequer.

METGE

and

KAVANAGH.

Vivian v. ChampionENRENR 2 Ld. Raym. 1125; 1 Salk. 141.

Nixon v. DenhamUNK 1 Jebb & S. 416; 1 Ir. L. R. 100.

Mills v. The Guardians of the East London UnionELR L. R. 8 C. P. 79.

Davies v. UnderwoodENR 2 H. & N. 570.

Macnamara v. Vincent 2 Ir. Ch. R. 481.

Bell v. HaydenUNK 9 Ir. C. L. R. 301.

Williams v. WilliamsELR L. R. 9 C. P. 659.

Maddock v. MalletUNK 12 Ir. C. L. R. 173.

Smith v. PeatENR 9 Ex. 161.

Turner v. LambENR 14 M. & W. 412.

Moroney v. FergusonUNKIR I. R. 8 C. L. 551.

Luxmore v. RobsonENR 5 B. & Al. 584.

Nixon v. DenhamUNK 1 Jebb & S. 416; 1 Ir. L. R. 100.

Turner v. LambENR 14 M. & W. 412.

Smith v. PeatENR 9 Ex. 161.

Doe d. Trustees of Worcester School v. RowlandsENR 9 C. & P. 734.

Doherty v. Allman Ir. R. 10 Eq. 460.

Harrow School v. AldertonUNK 2 B. & P. 86.

Mills v. The Guardians of the East London UnionELR L. R. 8 C. P. 79.

Thelwell v. YelvertonUNK 14 Ir. C. L. R. 188.

Rawlings v. MorganENR 18 C. B. N. S. 776.

Vivian v. ChampionENRENR 1 Salk. 141; 2 Ld. Raym. 1125.

Nixon v. DenhamINTL 1 I. L. R. 100; 1 Jebb & Sy. 416.

Turner v. LambENR 14 M. & W. 412.

Doe d. Trustees of Worcester School v. RowlandsENR 9 C. & P. 734.

Smith v. PeatENR 9 Ex. 161.

Davies v. UnderwoodENR 2 H. & N. 570.

Mills v. The Guardians of the East London UnionELR L. R. 8 C. P. 79.

Williams v. WilliamsELR L. R. 9 C. P. 659.

Breach of covenant to repair Measure of damages.

Vol.. XI.] COMMON LAW SERIES. 431 J. J:- Q.1138767n.ch. BARRY, I also am of opinion that the decision of the Recorder should -be reversed. The reasons which have led me to that conclusion Tim (41, 'TEEN have been so fully stated by my LORD CHIEF JUSTICE and my RECORDER OF brethren that I shall not occupy time by repeating in weak form DUBLIN. -what they have so clearly expressed : I shall only add that I have not arrived at this conclusion without much doubt and hesiÂÂtation-doubt and hesitation largely increased by the fact that my able and. respected friend the Recorder has taken a different view. Orders of the Recorder quashed, and conditional order for writs of' mandamus made absolute. Attorney for Clitheroe : Kennedy Co. Attorney for the Crown : The Crown and Treasury Solicitor. METGE v. KAVANAGH. Breach of covenant to repair-Measure of damages. In an action for breach of covenant to keep in repair, brought by the lessor .or Ms assignee during the pendency of the term, the damages may, but need not necessarily, be the present value of a sum equal to the cost of repair, that sum being payable at the end of the term ; or the damages may, but need not necessarily, be the injury caused by the want of repair to the saleable value of the reversion ; and, save in very extreme cases, it is the province of the jury to 4Iecide which of these modes is, in the particular case, the appropriate one. ACTION tried before the LORD CHIEF BARON at the Sittings after Michaelmas Term, 1876. The plaint averred that one J. W., being seised of the lands and premises thereinafter mentioned, did by deed dated the 18th of September, 1831, let the said lands and premises to one A. R., his executors, administrators and assigns, for fifty-four years from the 25th of March, 1831, at the rent therein mentioned, and that by the said deed, the said A. R., for himself, his executors, administrators and assigns, covenanted with the said W., his heirs and assigns, that the said A. R., his executors, administrators and assigns, should and would from time to time, and at all times Exchequer. 1877. May 4, 5. June 6. THE IRISH REPORTS. [I. R. during the continuance of the said term, well and sufficiently preÂÂserve, support, uphold, maintain and keep the buildings then made or thereafter to be erected upon the said premises in good and sufficient tenantable order, repair and condition ; " that the reversion had become vested in the Plaintiff, and the interest in the lease in the Defendant, yet that " the Defendant did not well and sufficiently preserve, support, uphold, maintain or keep the buildings erected on said premises in good and sufficient tenantable order, repair and. condition," but suffered a certain dwelling-house, garden wall and offices thereon erected to fall into decay, and perÂÂmitted certain outhouses to be removed, and also stones and other building materials, contrary to the said covenant, and refused to put said premises in tenantable repair and condition, to the PlainÂÂtiff's damage of 400. The Defendant lodged one shilling in Court as sufficient to, satisfy the Plaintiff's claim. A great deal of evidence was given on behalf of both Plaintiff and Defendant as to the age of the buildings, their condition, and the sum it would take to put them in repair ; the nature of such portions of it as proved material to the decision of the Court is sufficiently shown by the subsequent portion of this report. It appeared also that in the year 1876, after the action was comÂÂmenced, and pending negotiations for a compromise, considerable repairs were done on the premises by the Defendant. At the close of the Defendant's case, his counsel asked for a direction, on the ground that there was no evidence of any injury to the Plaintiff's reversion, or of the rent being endangered. The CHIEF BARON declined to direct, and left to the jury twoÂÂquestions-(1) Excluding from consideration the repairs done in 1876, was one shilling enough to satisfy the Plaintiff's claim? (2) Taking these repairs into consideration, was the sum enough ? In summing up, he told the jury they might apply to the case whichÂÂever of two tests of damage they considered most applicable to it and just to the parties-either the depreciation in value of the reversion, or the present value of the sum requisite to put the preÂÂmises into the repair in, which they ought to be under the covenant. Both parties took objections to the summing up, but the Plaintiff did not move for a conditional order. Counsel for the Defendant VOL. XI.] COMMON LAW SERIES. asked the learned Judge to tell the jury that the only measure of damages was the injury to the reversion ; and that if the blocking up of two of the windows of the house, and the absence of sashes and glass was not a permanent injury to the house and could be set right before the end of the term, they should consider it a fair user of the house during the term, and should exclude it from consideration. The jury found the questions in the negative, and assessed the damages at 5. In answer to a...