CLAIM FOR POSSESSION

Chronicle (Levin), 8 June 1946, Page 2

CLAIM FOR POSSESSION

LENGTHY CASE IN OTAKI A case- which occupied over three hours at tne utaxi uourt was heard on Tnursday when a elaim was maae oy ju. J. burn (Mr. Tripej uscnnst Wiiiium lvicKinnon (Mr. fxaiiriaj for possession oi a awelling, wiiue tiiere wcis u cuunter Ciauil oi £-±u ior services renaerea. Mr. a. M. vjTuuiuiiig wus tne presiumg Magistrate. xt was stated that plaintiff owned |a lariii at jr'aiaparauiiiu, • together | wiuxx ti euttctgu, cviiu mai deiendant j naa oeen einpioyea to do necessary [ w o l x sucii as autending to the gar|uen, pouitry ana oaa juDs. aii wenu j weii ior a tiiiie untn a uispute arose j vviiieii causeu a oreak in tne irienasinp. it was consiaerea oy counsei jiwx piaintiii tnao aeienaant naa ! "sacKea" mmsen oy temiig plam- ! tin tnat he aesired to worK ior him jno ionger. it was submitted that ' piaintiii was entitlea to an order, ufcienaant naving raiied in nis duty j to iook aiter tne piace, resuitmg ixi pxaniuin sunermg damage. I xtuin staiea in eViaeiioe that he ! was tui eiigmeer, out ior tne greatei I portion oi nis tune resiaea au 1 x-axaparaamu where he nvea witn nis wne, out irequentiy went into wellington ior nis worK. ne pos- ; ocsseu puuitry 011 nis land among utiior tiiiiigs, out oy negiect hau ios. i iiioney -m tne detenoration oi it. On ai i'x v ai at paraparaumu he hau uaiven McKmnon aria nis wife over I uixe property, wuen tney nad ex^iusoea aatisiactiun at tne position uixerea. Accommodation was also consiaered suhicient. It was pointed ! out, however, that the cottage was ! smali, but that it was hoped at an eany dace to build or add to the prciiilses. McKmnon anct his wife iuppeared denghtea with what had oetii olt ered them, and an agreement was entered into. Later deieiiaant s wne had a baby, but prior to eonfinement the mother was taken to Mrs. Burn's residence, wnere both were carea for. Some time later plamtiff stated that he had cause to complain at the work being done by deiendant. The latter was oil-hanaed when told and refused to carry on. Mrs. McKinnon later entered hospital. He asked McKinnon when ne was vacating tne av/enmg, and McKinnon replied that he was enaeavouring to make arrangements. Later more trouble occurred. He found a tyre puncturea, eviaentiy by an instrument in the garage. McKinnon had come to him an4 asked for a wood split•ting gun. He toid .McKinnon that he aia not haV'e it, ana McKinnon then uecame excited. To Mr. Hanna, Burn said he made overtures to McKinnon to work for him, iicivmg been told that he was a good worxer. McKinnon was entoxtoc.u, ana when questioned later J sta ueu that he was quite comiort- ! ixuie m the dweiling he occupied Vvitn nis wife and family. Wnen ; trouoie arose he asked McKinnon to : leave. He had toid McKinnon that Wxitn material was available bet- i ter accommodation wouid be pro- i vided, stating that he wouid make : tne necessary alterations as soon as pussiDie. He nad never told McKinnon that it wouid not pay to build. He contended that McKinnon had "slacxed" on his work. Personally he toox a pride in his property, iooking upon it as a means of relaxation. When McKinnon had told him that he had broken an axie, ; hf m n rl p. no r.nmnlaint. simnlv stat- I

uig tnat accidents were unavoidaoie. He certainly was not angry o\ur tne breax. He did not get angry and say, "You are no goua to me." Neither had he said simiiar words. McKinnon, by saying he had 110 further intention of Vvonung ior him, had done the equivaxent to giving notice. He had never dismissed McKinnon, but the latter was very emphatic about ieavmg. He had said that he wouid Jixe McKinnon to carry on with his job. McKinnon had declined, so he nad asked him to vacate the premises. McKinnon had not told him tnat he had nowhere to go, neither had he said he was in difficulties oii account of the new baoy. He admitted that he had taxed him with not doing nis work, considering it was not up to the standard. Pouitry, he considered, had been neglected, whiie it was through his careiessness that he had struck a power post. When questioned about the splitting gun he had told him that he thought it was at Rewi Howell's. To Mr. Tripe: My place at Paraparaumu is looked upon as my mme, and most of my time is spent there. ivxi's. Doris Burn, wife of plaintiff, stated that McKinnon- seemed quite pieased with the accommodation ' pro vided for him, but during an argument she had heard him say that he wouid tear her husban'd to pieces. McKinnon was a very excitable person. Malcolm Maclellan stated that he had worked for piaintiif who appeared quite satisfied with his work. He knew that plans had been drawn up for a new hoase and alterations to the cottage occupied by defendant. Mr. Hanna submitted that McKinnon had been summarily dismissed and that on account of his dismissal had lost a good deal of work, being obliged to look for fresh accommodation. He contended that McKinnon was a tenant at will, and was entitled to a monLh's notice. The accommodation provided was inadequate. William McKinnon stated that he was a farm labourer living at Paraparaumu, previous to which he had

! lived at Pukerua Bay, working under contract to the P.W.D. He had been reasonably comfortable in the dweiling there, but believed that accommodation and circumstances in general wouid be better at Para-

paraumu. ne naa poinrea out to Burn that the cottage was too small and the floor and appointments unsuitable. Burn had said that improvements wouid be effected within a space of six weeks. He continued to press the matter, stating that winter time was approaching and the place was inadequate and far too smali for his family. Later (Burn had said that he had no intention of building. He had never complained about his work not being satisfactory. McKinnon stated that Mrs. Burn had proved very kind during his wife's eonfinement, assisting in all ways. He appreciatea her kindness. In regard to the wrecked power post, that day was the first time he had heard a complaint, and he was not aware that the responsibility of striking it was put down to his careiessness. When he had told Burn about the -.ivxen axle, Burn had told him not to worry as he himself had broken several. Burn on that occasjon had proved very amiable. At a later ■late Burn had become wild and had told him "that he was no good to him — he had finished." McKinnon stated that he had-then walked away, considering that he had been "sacked." Burn also asked him when he intended vacating the cottage and he had replied that he wouid do 'so as soon as possible. McKinnon stated that pouitry had never been neglected, but tfiat Burn had spoken highly of the work of Mrs. McKin'non. He1 had asked Burn for the splitting gun, and was told that a little girl had taken it to Rewi Howell's. He rang Howell and in reply came the answer that Burn had it. He had then seen Burn, stating that Howell had said the gun had been sent back. Burn -said he doubted. if he (McKinnon) had ever had one and then told him to go away and not to worry him. Cross-examined, McKinnon stated that he was not in a position to leave the cottage, but if he had to give up possession by order of the

Court he wouid not attempt to try and get accommodation with his married daughter. He did not consider this wouid be right. He had never said he wouid tear Burn to pieces, neither had he given him any trouble. On one occasion Burn had made certain uncompiimentary remarks, and he had' retaliated by telling Burn that he wouid not make such remarks if out on the road. He admitted that on one occasion he had suddenly given up contract work because it was not paying, considering that he had lost £100 over the work. In giving judgment Mr. Gouiding stated that Burn had required the services of McKinnon to look after the propertv and to do general work such as milking, care of ooultry, etc. This made it clear that Burn requir- , ed his services and that therp was no need for a notice to quit. Under the circumstances an order wouid be made for possession. Relative to the counter claim, he was satisfied that employment had been justly brought to an -end, but he had to admit that he had had to listen to two contradictory staterxients. Under ; the cireumstahcgs £ he..^foi|ld &ceept the evidence Of Burir* wheir he stated that McKinnon had said he wouid work no more for him. Judgment for possession Lof the .premises , was ordered fortfiwRh, jblie order to remain in the Gourt for 21 days, and on the counter c1aim judgment, wouid be for plaintiff* for the amount claimed, with costs. (