South Australian Register (Adelaide, SA : 1839 – 1900) Thu 24 Jun 1852 Page 3 LAW AND POLICE COURTS
Kent v. Torrens.
Replevin.
For the plaintiff Mr. Fisher and the Crown Solicitor; for the defendant: the Advocate-General and Mr. Gwynne.
The real questions at issue in this case were at what rental the defendant, Dr Kent, holds the section adjoining the eastern part of the Park Land from Colonel Torrens, and whether or not he had made a legal tender of the amount due. The agreement between the plaintiff and Mr. R. R. Torrens, on behalf of his father, dated 20th March 1846, fixed the rent at £134 per annum, but contained the following clause, ‘Provided lastly and it is hereby agreed between the said Robert Torrens and Benjamin Archer Kent that if the said Robert Torrens shall have departed this life before the execution of the said intended indenture of lease for twenty-one years, or shall have been from any other cause or contingency whatsoever prevented from such execution then the indenture of lease shall be held to have operation for a term of seven years from the said 25th day of March, 1846, and in such case the said B. A. Kent shall receive back from the heirs, executors, administrators, or assigns of the said Robert Torrens or their agents in South Australia such sum of money as shall amount and be in the whole at and after the rate of 25 per cent, upon all or any rent which at the rate of £134 per annum he the said B. A. Kent shall have paid for and in respect of the said premises from the said 25th March 1846 and also that for the remainder of the said term of ‘seven years he the said B. A. Kent shall pay for the said premises the annual rent or sum of £100 10s. only being at the rateable reduction aforesaid instead of the said full rent of £134 per annum.’
The defendant had refused to execute a lease and wished to fix the rent at £100 10s. per annum, but to this arrangement the plaintiff would not assent.
Charles Mann, plaintiff’s attorney, proved that the costs of the replevin bond, &c, were £3 103.; produced some letters from Messrs. Gwynne and Lawrence, who formerly acted for the defendant, demanding rent ; had an interview with Mr. Charles Robin, the defendant’s agent, in presence of Mr. Hanson, his solicitor, and the plaintiff; made a tender of £335 for rent, which was refused.
By Mr. Fisher— Tendered the money as rent; Mr. Hanson said he would take it as cash; Dr Kent said it must be taken as rent, upon which Mr. Hanson shook his head.
Dr Kent said ‘ Then, I won’t pay it.’ Witness then took back the notes and left the room with the plaintiff. The entire rent for five and a half years at £134 amounted at the time to £737, of which £402 had been paid ; the balance was the amount tendered; Gwynne and Lawrence had claimed £48, which was the balance at £100 10s. per annum.
By the Advocate-General — Mr. Robin was willing to receive the amount tendered, and to leave to the Court to say whether or not it was for rent. Had seen the agreement between the plaintiff and the defendant; understood from the former that the latter had refused to execute a lease under that agreement.
By Mr. Fisher — The reason Dr Kent told him Colonel Torrens had assigned for not signing the lease under the agreement was that Mr. R. R. Torrens, his son and agent, had written to him to suggest that he had an alternative, and advising him to adopt that alternative, and not to carry out the agreement into which he (Mr. R. R. Torrens) had entered on his behalf. Had seen letters from Colonel Torrens, in which he stated that he repudiated the agreement under his son’s advice, and that Dr Kent was to receive back the balance of £33 10s. per annum rent.
This was the plaintiff’s case.
The Advocate-General addressed the Jury. He could not understand how a man could repudiate an agreement by accepting an alternative contained in it. He said so much in justice to Mr. it. R. Torrens, who was represented as having advised his father to repudiate an agreement into which he had entered for him, when, in fact, the advice he had given him was only to act upon any of the conditions contained in it.
He would put in that agreement, which they would see was for a lease for 21 years at £134 per annum, with right of purchase during the entire term ; but there was a proviso that if Colonel Torrens should die, or if, for any reason he were prevented from executing a lease, the agreement should operate as a lease for seven years at £100 10s. a year, and that, in such case, Dr Kent should receive back the balance of the higher rent.
His Honor — But an unwillingness to confirm would not amount to a prevention. The Advocate-General would apply for leave to amend by stating the avowry of the demise at £134, instead of £100 10s.
Mr. Fisher objected to this. It was not a sort of amendment which the Court would allow. In Gaylor v. Farrant, 6 Dowling, an amendment was allowed because the variance was immaterial to the merits of the case; but here there was an issue of non tenuit, and it would have altered their pleadings altogether had the avowry of the demise been at £134 a year.
The Advocate-General referred to the English rules which took from the plaintiff the right of making two avowries, on the express ground that the judge at nisi prius had power to allow an amendment.
His Honor — If you admit the tender I will give you leave to amend. The very question at issue is whether the proper rent is £335 or not.
The Advocate-General thought the Court should either allow the amendment without attaching any condition, or reserve the point for the consideration of the Court
Mr. Gwynne urged His Honor to allow the amendment, citing the cases of Prior v. Buckenham, 8 Woods, 354, and Doe v. Edwards, 3 M. and R.
His Honor thought the variance went to the merits of the case, and therefore refused to allow the amendment.
The Advocate-General asked His Honor to direct the jury to find the facts specially.
His Honor would direct the Jury to find that the agreement was entered into between the parties.
The Advocate-General then addressed the Jury. The only question left for them was whether a tender was made.
Mr. Fisher said they must also find whether it was a tenancy at £100 10s. or £134 per annum.
The Advocate-General considered that was a question for the Court. He then read a memorandum of the conversation between himself, Dr Kent, Mr. Mann, and Mr. Robin, and argued that no tender was legally made, seeing the offer of the money had been accompanied by a condition, and was refused because the condition did not meet a direct assent.
Richard Davis Hanson sworn, and examined by Mr. Gwynne — Was present at the interview referred to by Mr. Mann ; produced and proved a memorandum of the conversation taken at the time; Dr Kent said, ‘I tender the money as rent’ Witness replied, ‘ Very well, I take it.’
Dr Kent said, ‘But you must take it as rent’. Witness replied, ‘ I can say nothing further.’ Dr. Kent said, ‘Then I will not pay it,’ and left the office.
By Mr. Fisher— Had previously claimed £150 15s. as rent due; would have taken more if Dr Kent insisted that more was due as rent ; he did not ask for a receipt ; if one had been asked for, should have told him that a receipt would vitiate a legal tender ; offered to take it and held out his hand for it, but when Dr Kent saw the money was going he drew it back again— (a laugh)— did not refuse to take the money as rent; meant by shaking his head that he could say nothing further; did not consent to take the money as rent.
The Advocate-General then put in the agreement signed by Robert Richard Torrens, as attorney for the defendant, Robert Torrens, and by the plaintiff, Benjamin Archer Kent.
This was the defendant’s case.
Mr. Fisher addressed the Jury in reply. He thought they would have no difficulty in coming to the conclusion that the contract was a valid demise at £134 per annum, for there was no evidence to show that Colonel Torrens had been prevented from carrying it out. There was no provision to allow Colonel Torrens, after receiving the full rent [or three years, to alter the demise from 21 years to seven years upon his hearing that the value of property had risen and so by the sacrifice of £34 per annum to get rid of a pre-emption clause extending over the entire term.
That was the explanation of Dr Kent’s desire to pay a higher rent than was now demanded by Colonel Torrens. Then as to the tender. The learned Advocate seemed to argue that money must be tendered without any mention being made of what it was for. How this could be he could not understand. If £335 were really due it could be attaching no condition to the tender to say it was offered for the purpose of paying the amount. If therefore they found that £335 was due for rent, there could be no doubt it had been tendered and refused; for there was no substantial difference between the evidence of Mr. Mann and Mr. Hanson.
As regarded damages, he only sought for the nominal amount which had been proved to have been paid for the replevin bond.
His Honor directed the Jury to find specially, that the agreement of the 20th March, 1846, was the contract which constituted the relation of landlord and tenant between the parties. Then, if they believed that there had been an unqualified and unconditional tender of the amount due under that deed, they must find for the plaintiff for the amount proved, £3 10s. If there were any demand for a receipt in full, it would have been a qualified tender, and it was for them to say whether it were tendered without a condition, and accepted without a condition, as, if so, a subsequent refusal of the money, would destroy the tender.
The Jury, without retiring, found specially, as directed, relative to the deed, and also for the plaintiff, damages.
