Feilding R.M. Court

Feilding Star, Volume IX, Issue 83, 11 February 1888, Page 3

Feilding R.M. Court

THURSDAY, .FEBRUARY 9, 1888. (Before R. Ward, Esq., R.M.) Charles O. Staite v. Chairman and "Secretary of the Awahuri and Pohangina Special Settlement Association. —-Claim £4 19s 6cL, for payment for bushfelling. Mr Staite for plaintiff and Mr Hankins for defendants. The contention for the defence was that there had been a breach of contract, and that thereby the plaintiff was not entitled to the claim. Alfred *John Mouatfort, survoyor, deposed to having, been engaged to superintend a contract with J. Turner fer felling certain bush (contract produced); it had never been fulfilled > about the middle of October received an order froth Turner for progress payment; was there about a week after the contract should have been completed ; did not give a certificate ' as the work was noe being done to his ; satisfaction ; about 25 acres were j done; sent a statement to the secretary of the Association, stating what had been done, aad saying he did not think they could complete it ; the contract was for 80 acres at -fil 5s 7£d per acre.. Cross- examined: Went to look at the work about the time Turner asked him to do bo ; did not find him there, and he had not been there for some days ; there was not so mnch done as Turner said there would be ; did not consider anything was due till the work was dona; remembered a man named Jones coming and telling him the men were waiting for money ; (Mr Hankins here objected to evidence as to any conversation between witness and contractor's wages men.) Reexamined : The bush was not to lie felled till the underscrubbing was cut, but this had not been done, and trees were left lying on the scrub. Mr Hankins addressed the Court, contending that there had been such a breach of contract that the defendants had been considerable sufferers, and might have brought a much larger claim than that in question, for damages against Turner, amounting at least to £14. Mr Staite submitted that according to the contraot certain money had been due to Turner at given stages of the work for progress payment, which not having received he could not pay his men, and could not therefore complete the work, and it was only fair the wages men should be paid. His Worship thought it a case of great importance to all concerned. His opinion must be based upon tbe law of the question. Ho quoted authority to show that under certain provisions workmen had a claim against a contractee. He held tbat according to the statute^the contractee Association were liable to the contractor's workmen, and he must give . judgment for the plaintiff and costs. Mr Hankins gave notice of appeal. MaL Joseph Smith v. Ernest S. Thynne and John R. Russell. — Claim £15. Mr Sandilands for plaintiff, and Mr Haukins for defendants, who were the President and Secretary respective! v of the Foxton Racing Club. One of the defendants, Mr J. Russell, only appeared, although it seemed the summons against him had not been delivered. Mr Sandilands quoted law to show tbat a case might be heard if a defendant who had not received a summons consented. The claim arose out of an alleged agreement between plaintiff and defendants for the privilege of selling the cards at the recent races at Foxton. The cards, were to have been delivered to plaintiff at a certain time and place, which had not been done. It appeared" the cards were printed and sent to the. Feilding railway station within the time. limited, and were lying there till after the races. Joseph Smith deposed : He was a bricklayer residing in Feilding; attended the sale of privileges for the Foxton races; the conditions were read out ; bought the cards (800) to be sold at Is each ; arranged with Mr Russell, who was to deliver the cards the following Saturday at the Feilding -railway station ; Mr Leary would print them, and he (witness) was to send any advertisements not later than Wednesday eyening ; Mr Russell said he would instruct Mr Leary to send them ; enquired for them at the railway station and was told they were not there ; wired Mr Leary, who replied the cards had been sent; enquired again, and was again told they were not there; when he returned from the Foxton races enquired again and was again told they had not come ; in about two hours after the porter came to him and told him the parcel had been there all the time ; at Foxton the stewards told him if it could . ■ be proved he had enquired and not received the cards at the Feilding station the club would give him £10. Cross -examined : Requested the cards to be delivered at Feilding ; asked for a parcel from Palmerston, and not from Foxton at any time. Re-examined : His only reason for offering to accept the £10 was to 3a ve any trouble to the porter from the Railway Department. The contention for the defence was that the cards ought to have been delivered at Foxton, and that it was only a gratuitous act On the part of Mr Russell to send them to Feilding. ■■; John R. Russell, Secretary of the Foxton Hacing Club, on being put into the box, said there was no contract on the part of the Club to deliver the cards at Feilding, and it was entirely at plaintiffs request that witness sent them there ; did not know of the auctioneer telling Mr Smith that he (witness) would arrauge with him where the cards were to be delivered. Cross-examined : Was present at the sale; considered the cards should be delivered at the place of head . quarters ofthe Club; Smith paid £7 L -^_ox ih» cards i did ooi stipulate to

send them to Feilding, but sent them simply to oblige the plaintiff. Mr Hankins submitted there was no contract 1 to deliver the cards at Feilding ; that the proper way would have been to take delivery at Foxton; Smith was made the consignee at his own request, and that the case was not one of Smith against the Club* but Smith against the Railway Department, as they were his agents and not the Club's. Mr Sandilands contended that where a contract is sileut Las to a place of delivery a consignor is liable for delivery to the place named by tho consignee. He held that the Club's Secretary having ordered the cards to be sent to Feilding rendered the Club liable. His Worship considered that the Railway Department were the carriers of the plaintiff as the freight was to be paid by bim. It was a most unfortunate case, but as the consignment to Feiiding was solely at the request of plaintiff, and was gratuitous on the part of Mr Russell, he could only give a judgment for the defendants. John Jones v. John Turner, junr.— Judgment summons for £9 0s 6d, Wm. Jones v. John Turner, junr.— Judgmeut summons for £7 lls9d. These cases appeared to have connection with C. O. Staite's case above reported. As it was not proved that defendant was in a position to pay both cases were dismissed. The Court then adjourned.