CLAIM FAILS

Bay of Plenty Beacon, Volume 2, Issue 112, 19 January 1940, Page 5

CLAIM FAILS

CARE OF CATTLE WHEN GRAZING COUNTER-CLAIM SUCCEEDS The question of whether a farmer who has agreed to graze ■another's stock on his property is responsible for their care or whether the owner of the cattle has to exercise supervision over his stock during that period was decided by Mr E. L. Walton, S.M., in the Magistrate's Court on Wednesday after hearing a •claim by Denis James Denneliy, farmer, of Manawahe, against John Dunne, farmer, also of Manawahe, and a counter claim { for £104 by the defendant. "When ;i person takes in cnltlc to graze." said the Magistrate, "lie also undertakes to exercise reasonable «. of the cattle. In this case the Ltiff did not perform the duties osed on him. When the cattle ilied or got poor in condition plaintiff should have notified Dunne. That was where lie failed." Claiming £20 8s 2d as the balance of grazing fees due to him, D. J. Dcnnehy was represented by Mr R. F. Smith. Mr B. S. Barry appeared .for defendant. Denis James Denneliy, farmer, of * "Manawahe, said that lie was suing Dunne for grazing last winter. Examined by Mr Smith, plaintiff said that he had a property of 70S acres, 100 acres of which were cleared and the balance all heavy bush. He had arranged to graze Dunne's cattle at .the back of his property. in November, IfKiß, he had taken nineteen head of defendant's stock and had grazed them until May, when Dunne brought a further sev-enty-one. In May lie was paid right 'lip to date lor the grazing since November. Dunne had asked for grazing because his cows were short of feed. Mortality Among Cattle. Continuing under examination by "Mr Smith, plaintiff said that he s - charged a grazing rate of 0d a head for heifers and 9d a head for cows. He had never agreed to muster or

deliver nor had Dunne ever been : along to assist Avitli mustering. It was alleged by defendant that thirteen head were missing. He knew that seven or eight were dead and he had told Dunne, who had appeared to expect it. Dunne had never been to investigate the deaths. Plaintiff explained that it Avas difficult to muster in the bush. In a hard winter all the farmers at Manawahe had lost cattle. Cross-examined by Mr Barry, plaintiff said that Dunne's stock had died because they were in poor conr dition. Mr Barry: Did you tell Dunne that they were dying? Plaintiff: I told him to come out and see for himself. Answering a question concerning other stock grazed on his farm, Dennehy said that Mr Flynn had lost about twelve. Mr Barry asked whether the number lost by Flynn was not greater and suggested that 24 was a better estimate. Plaintiff reiterated that the loss in this instance was only twelve. Mr Barry: Were some of them not fit to drive back to the farm? Plaintiff: Only two. Mr Barry: Did Dunne stipulate that no one else's cattle were to be on the property? Plaintiff said that he had told Dunne that thirty or forty of Flynn's stock were also going to be on the property. Dunne had told him that his cattle might as well die there as any where else. Dunne had lent him a horse but not for «ii» 'Qfring. The first tiling he knew of arrangement to muster Dunne's cattle was when lie got the counter-claim. Continuing under cross-examina-tion by Mr Barry, plaintiff denied that Mr Gartshore, Farmers' Auctioneering representative, had ever asked him to muster defendant's cattle. He had never said that he would go out every day.

Difficulties in Mustering 1 . Harold Rimmer, neighbour of plain tiff, said that Donnelly's property Avas fairly rough bush and -was steep in places. Mustering -was problematical in that type of country. He liad been Avitli Dennehy in July when -were mustered and brought out of the bush. He had seen some of Dunne's dead. Some of Dunne's cattle were in good condition and others .were not. He could give no idea of how long it would take to muster fifty head of cattle.'it might take a month.

11 was usual for the farmers of the district to help each other, saio witness, and there was no question of payment between them. However, if a farmer were to be engaged alone, solely on mustering he should receive wages for it. It was possible to Mo through the bush and never see cattle. Cross-examined by Mr I>aiT.v, witness was not. prepared to say tl\at Denneliy had too many cattle on hi* property. At that time Iheie wa>; an average bush feed. Thirteen out of a total of 71 \\as a fa'rly heavy loss. Defendant's Case. Mr Harry said that the claim for grazing was defended because Denneliy had not carried out Vis obligations. Dennehy had made r« definite arrangement to muster. John Dunne said that he, was a farmer of Manawahe. The first arrangements were made in April when he heard that Dennehy had. grazing to let. He knew that Fly mi's heifers were on the farm but Dennehy had promised that no more cows would be going on.

Defendant and an employee had driA'on the stock to Donnelly's. Tho cattle Avere then in good condition and Avere counted three times by Dennehy Avho had mentioned that one cow Avas a bit luwy. Defendant had cerfainly not made the remark that the cattle migh!: as Avell die there as any where else. He had asked Dennehy about bringing the cattle out and plaintiff had said that lie Avould muster them. He heard later that his cattle Avere staiwing and Dennehy had informed him that three Avere dead. In response to Mr Smith's questions, defendant said that he kneAV where the cattle Avere going but had not been over the property. Stock Agent's EA'idence. Frank James Gartshore, F.A.C. re-presentatiA-e in Whakatane, said that he saw Dunne's cattle before they Avent on to Donnelly's farm and they Avere then in good condition. Dennehy had assured him that he Avas not taking any more cattle. About a month aftenvards a man approached him at a sale he Avas attending and told him that unless the cattle Avere taken aAvay they Avould die. He informed Dunne. Witness said that it was understood that Avhen a man grazed stock he must also muster them. Dennehy had told him that he Avould get the cattle in. It seemed as though there had been upwards of two hundred head on Dennehy's property. Replying to Mr Smith. Avitness said t'hat his firm had no financial interest in Dunne's farm. The price of grazing varied and the price paid by Dunne Avas not excessive. H'c understood that there Avere no other cattle going on Dennehy's place. He had never agreed to send trvvo men out from Whakatane to assist plaintilf in mustering. Witness admitted that it is possible to miss cattle Avhen mustering in the bush.

Further Evidence for Defendant. Clare Mcllroy, neice of the defendant, said that she was in Donnelly's house when the arrangements concerning the cattle were made. PI-.sin tifT had promised to fetch the cattle out of the bush. "When Ave heard thai the stock were not doing any good, I went along to Mr Dennehy and told him that Ave wanted them back.'* said witness, who added that the cattle were in good condition Avhen they left her uncle's farm but much poorer when they Avere brought back. Dennehy had neA'er denied that he should look after the cattle. Replying to Mr Smith, witness said that the grazing was sought because her uncle Avanted tlie grass on his farm to 'get away.' "Witness further stated that Dennehy hac been pa ill £21 in May. that she has ne\*er been over Dennehv's properly and that plaintiff has never brought out the six cows he said were there, and that Dennehy had never been paid anything for mustering.

Magistrate's Decision. In giving judgment for defendant .■with costs, on the claim for £20 8s 2d, the Magistrate said that when a person takes in cattle to graze he also undertakes to use reasonable care of them. As far as mustering was concerned, a witness had said that mustering was part of the general arrangement. "I don't think it is,'* said the Magistrate, "and it would seem to be cause for a separate agreement." The Magistrate observed that plain tiff did not perform the imposed on him and when the cattle died or became poor in condition he should have notified defendant. That was where he failed. Judgment for defendant, was given on the counter-claim Tor £52 with costs also against plaintiff.