CLAIM FOR CARTAGE.

Hauraki Plains Gazette, Volume XXXII, Issue 4311, 31 August 1921, Page 2

CLAIM FOR CARTAGE.

DECISION RESERVED. Before Mr J. Salmon, S.M., .at Paer(oa on Monday, a claim of £5O ’damages was made by Jakob Bertelsen, Paeroa, brewer, against John Endean, of Auckland, hotelkeeper.. Mr E. Jj Clendon appeared for plaintiff and Mi- A. B. Graham, of Auckland, for defendant. The statement of claim comprised cartage on 200 .tons of firewood, .at ss, £5O. The plaintiff claimed .to recover £5O damages from defendant for failure to carry out a written, agreement to cart 200 tons of firewood from defendants farm to the railway line at Tirohia. Mr Clendon said defendant had n farm at Tirohia, and had a manager named Kerr. It was arranged between the parties that Mr Bertelsen was to root up and stack all the timber on the place, and that defendant was to cart it. £5O was a fair and reasonable measure of the loss sustained.

Jakob Bertelsen, brewer, Paeroa, entered the box.

At this point Mr Clendon put in a document purporting .to be the agreement between the parties. Mr Graham pointed put that the document was liable to Is 3d duty, and as this was not put on a fine of £5 was leviable against Bertelsen. The point was held in abeyance.

Witness, Bertelsen,, said he had employed two men for twelve months to clear the land, and had paid them £345. The timber had been cleared and stacked into heaps, but Mr Endean had not had the timber carted to the station. Excuses had been made by Mr Kerr., and a subsequent manager, Mr Menzies, that there was no benzine to run the tractor. He had then employed two teams and four men four, weeks to cart .the timber to the railway line. Kerr had rung him up during the time when he was gathering the wood and said Endean had instructed him to tell witness to put more men on, or he would do so and charge witness with the cost. He put more men on, and got-out 40.0 or 500 tons pf wood. To Mr Graham; Mr Kerr had carted 300 tons out, and would have cart" ed the rest out if he had been left alone. Mr Kerr told him that he car,ted 30 tons per day. He sold some of the timber, but used vinost of it. To Mr Graham: Witness sold some of the wood to Mr Percy Vuglar, but could not state the price. His clerk had made' the estimate of £345 spent in clearing the land. This did not include cartage. His price for wood was th.e same, whether there was a coal famine or not. The contract gave the sole right to all the firewood on .the ploughed land. He could only go on to the ploughed land in March and April. Mr Graham: Hpw many acres are in 'the ploughed land ?—I do not know. Mr Graham : Did you enter the paddock behind the ploughed land and take .timber off that ?—I don’t think I did. If any of my men .took it off it was done so unknown to me. In reply to a question from Mr Graham, witness said he had made frequent applications to have the matter remedied. Mr Graham • Did Mr Kerr receive any reward from you by a supply of free beer or otherwise ?—He received nothing from me. Mr Graham : Has Collett ? —He received his wages. Mr Clendon : Collett was your fore? man ? —Yes.

Mr Clendon: Ho.w far is it frpm the depot to your place ?—About two miles. David Kerr, on being called into the witness box, said that he was Mr Endean’s manager., operating with the bank accounts. Mr Endean came down about every three months. The ground required ploughing and the timber had to be taken off the grpund by a .tractor., Witness had been told to do the best he cpuld with the wood. He approached two Paeroa firms, who could not purchase i’t. He eventually made arrangements with Mr BerteLsen to take the wood, .witness having to find a tractor, sledges, and one man, and Bertelsen to find two men. the later to load the sledges and witness’ men tp drive the tractor. The timber was all collected by Bertelsen’s men before the tractor started. The agreement was produced, and witness admitted making an alteration, which bore witness’ signature. Witness : There was a stopping in the carting because I could not get the benzine to .carry pn, and the wood was left there. Witness lef.t in December, last year. When he left some of the timber .was left there. Mr Clendon: Wliat would be a fair thing to cart the wood put of that place *, —it is a hard thing tc estimate that. Witness said th.at Mr Endean was fully aware of th.e position. Mr Graham: I suppose you know the wood is valuable. —I don’t think it is, considering the price of labour then.

Mr Graham: Didn’t you give Mr Durbin permission to take the wood, off ’—Yes, but I did not help him. Mr Graham: Dpn’.t you think you could get people to take the wood away if you offered it for nothing ?— No.

Mr Graham : Will you swear on ypur oath that B.ertelsen’s men did not take firewood off that piece at dhe back ’—There- is no area at the back. The ploughed land goes right tp the boundary. Witness: Bertelsen did no.t take any wood .off any part that was not ploughed. Witness said that Mr, Endean and he were the best of friends, but it came as a surprise when witness was discharged. He admitted afterwards writing a lette" to Mr Endean in which he had included words to the effect that Mr Endean would not have treated a dog as he had treated witness. Witness did not think he had been treated fairly towards the finish by Mr Endean. In reply .to a question by Mr Graham witness said the paddock in question was about a mile from the house.

Witness said the statement that he said he could get as much beer as he wanted from the brewery, free, was

an absolute lie. Bertelsen had not threatened legal proceeding in October, 1920. It was in October or. November that '-he work started after the winter months, and ploughing commenced. He had not raised any objection to Bertelsen carting the timber away. It would have been, removed but for the benzine shortage. Mr Endean knew all about the circumstances.

To His Worship: He had omitted, in, his statement of accounts due, to make an entry of Bertelsen’s dues for cartage. Mr Graham: Could you not say that there was not 100 tons stocked during the months June 13 to July. Resuming after the adjournment for tea, Stanley Kerr, aged 17, son of the previous witness, stated hi answer .to Mr Clendon that he went to the Paeroa District High School for four years including 1919. He remembered the arrangement between the parties to the dispute, and saw Mr Bertelsen and t.wo men stacking the timber when the ploughing was going on, and a little off the surface before that, .commencing early in June. * He had heard Mr Endean say it was a good idea for Mr Bertelsen to take .thg wood away;. it was a good way to get rid of it? Mr Endean said Mr Bertelspn was getting the wood for 'the carting of it away. He had heard Mr Endean say he was Quite willing to supply a man, .a tractor, and benzine to take the wood to hard ground, where Mr Bertelsen could cart it away, Mr Bertelsen agreed to this arrangement Mr Endean said that Mr Bertelsen was to collect the wood, and help 'the men to load the sled. To Mr Graham: Witness .thought there wpuld. be not more than 100 tons of wood stacked before the end of July. He repeated that "Mr Endean said it was a good idea to let Mr Bertelsen have the wood for the carting of it.” It .was 15 yards from the dining-room dppr to the teltephone. where a conversatipn alluded to in the cas.e had taken place.- His father had not given him any "points” in x respec.t to the case. To Mr Clendon: Witness meant 15 feet instead of 15 yards in regard to the distance of -the telephone from the dining-room. He could not say how n.ear. his estimate was to the actual.

His Worship: Oh, I don’t see how anyone could estimate irregular heaps of sodden wood. Thomas Grant, labourer, Paeroa, said he was employed at Tirphia on the wood gathering and engaged by Mr Kerr, manager for Mr Endean. He drew off 300 or 400 tons of wood altogether.

Summing up, Mr Graham drew attentipn to the statement of claim, cartage of 200 tons ~at *ss per ton. There was not really any evidence ofany agreement to pay, 5s per ton for cartage. There was nothing in the letter which mentioned 200 tons of firewood. The evidence did not prove .•the existence of .a contract; he applied for a non-suit on that grpund, and that there was no suggestion that Kerr or- Collett were acting as agents. It was a contract let Kerr and one Collett, and not let Bertelsen and Endean. What- was tp r prevent Collett coming forward and suing under his own right. There was another feature to consider. The contract as submitted amounted t’g a license from Kerr to W. Collett to take the wood. Had not Bertelsen got all the wood he was entitled to or more?

Mr Ciendon saify “ his friend ” was hard put to it to find an answer Vo the case. A contract was entered, into by Mr Kerr, pn behalf of Mr Endean, and Mr Bertelsen of the other part. Mr Collett represented Mr Bertelsen, and these things were all quite clear, and known to Mr Endean before the contract started. The work was stopped because of the stoppage of "benzine.. Mr Graham: Perhaps there was no beer.

Mr Ciendon: Mr Endean, of the Waitemata Hotel, would not run short of beer.'

Mr Ciendon submitted that Mr Endean had failed to complete his part of the contract; on an implied contract, therefore, plaintiff was entitled *to judgment. The measure of that breach was what i.t cost Bertelsen to cart the wood. Mr Graham said there was no privity of contract, but no amount of the evidence, “viva voce,” could prove it more clearly.. The existence of the .contract was proven by all witnesses. The letter .was not the contract, .but merely evidence of the existence of such, Mr Graham: It is not a contract, then, because all its provisions are not in writing.

Mr Ciendon : It is sufficient,' in that it does not refer .to a sale pf goods, but to work ,tp be done. It was not a license either, but evidence of a contractual relationship between the parties. Mr Bertelsen had spent hundreds of pounds carrying out the work, and had a just claim. The position was monstrous.

Mr Graham: I agree in respect to the monstrosity.

Mr Ciendon said that, owing to Mr Endean’s failure to complete his par:, the work could not be done within the two months.

Mr Graham submitted that the Sale of, Goods Act required that the whole of the terms, or none at all, must be in writing, and not merely a part. His Worship said that in regard to the question of privity of contract, he had to decide whether the parties had authority. Kerr, apparently, had authority, Mr Endean’s conduct ratified Kerr’s action. Collett had Mr Bertelsen’s authority for his action. The document need not have been in writing, and merely served as evidence of a contract. The point that there was no privity oLcontract must fail. The claim for £5O damages was properly a statement of the cost to plaintiff.

In regard to the question of a license, the agreement was very vague, but plaintiff had gone on collecting the wood so long as the ploughing continued, sb that the letter was something more than a mere license ; it was, with a verbal, arrangement, evidence of a contract. In respect to the time occupied, both parties oy .their action had waived the point. The application for a non-suit must fail. , ,

Mr Graham said the contract, if made, was a most improvident one. There was a coal shortage at the time, and many people would have ~ been glad to cart it away. Mr Ehdean’s manager was in the position of having given away hundreds v'f pounds’ worth of timber. Mr Endean, after giving the timber away, was met with an unreasonable demand. In the case of Bo’lingbroke v. Swinburne, 9 Common Pleas, 375, it was laid down that an agent was empowered to do only “necessary” things, unless specially authorised to do otherwise. In the present case Kerr was not specially authorised. The limit of his authority was that he was told he could give the wood away, provided anyone liked to cart it away. A witness, Kerr, junr., had stated that the arrangement was as stated herebefore, but Mr Clendon had got him to add something to the effect that the carting was .to take place from hard ground. Witness’ first version was the correct one. Kerr, senr., had a grievance against his late employer, and His Worship should seriously consider the evidence from that aspect. Had the agreement been honest and straightforward, surely it was the place of Kerr to have informed his principal of the conditions that had arisen. John Albert Endean, defendant, owner of a farm at Tiroh-a, said ne had told Mr Kerr that if he could get a man to take the wood away he could have it for the cartage; the natives could have wood under the same conditions. He had never before given timber away and had to pay for the carting of it. He. had not seen the letter, or "agreement” as it was called, until after the present action commenced. He had had trouble with Kerr, as things had no; gone well at the farm. Kerr had not disclosed to him that there had been any contract with Bertelsen. Kerr had said to him on one occasion, "If you have not brought any beer, I can always get some from B.ertelsenJ’ To Mr Clendon: Up Ip a certain period he had a lot of c.onfidence in Mr Kerr, who gave instructions for the making of milking contracts. Kerr operated bn his, witness’, banking account. He had a limit of £5OO, but soon got up to £BOO, at Mbrrinsvilfle.

Mr Graham: He operated with a free hand, top free. Witness told Mr Clendon he knew of two men in Auckland who, 20 years ago, cut and stacked 25 tons of wood per day. He would have stacked the wood on his place for £l5O. He did not know whether Kerr had offered the wood to the bakers in Paeroa. He had always sent benzine on request, except during a short period when it was not obtainable. To Mr Graham: Witness never at any time had any idea that he was liable for any cost of getting the wood away.

To His Worship: Witness denied having made the ffiphone instructions alleged in regard to demanding that Bertelsen should put men on, or he, witness, would have to do so and J

charge him. William David Keyes, farmer, Paeroa, said the wood was first-class, being heart of manuka, rimu, and maire. The usual thing was to charge a royalty for timber, but in exceptional cases it might be given away for the gathering and carting. He preferred to burn the l timber, rather than to give it away, as a cleaner job was made, and the ashes made good manorial potash for the ground ; it was a valuable fertiliser. He wpuld never think of making such an arrangement as had been made in the present case. He would want to be paid for Carting. To Mr Clendon: Two men should log up the area alluded to within a month, at a cost of, probably, 10s per acre. The timber would be worth from 5s to 7s per ton. It wpuld be preferable to cart .the timber straight off -the ploughed land, • rather than sledge it to a point and then load on to drays. Angus John Campbell, farmer, Tirohia Road, said Mr Kerr had allowed him to take the wood away for the carting of it. When he took wood which the tractor had hauled to high land he supplied the benzine. He had offered to pay a royalty to Mr Endean.

Mr Ciendon: How many drinks have you and Mr Endean had to-day ? —Only three. Was it not thirty-three ? I have been instructed that you have been “on the burst” for about four weeks.

Witness: I have been on a bit of a-holiday. (Laughter.)

Kenneth James Forgie, successor to Mr Kerr at the farm, said Kerr had never said a word about any liability to Bertelsen. His Worship reserved his decision.