SHARE-MILKING AGREEMENT.

Manawatu Herald, Volume XXXVIII, Issue 1638, 16 November 1916, Page 3

SHARE-MILKING AGREEMENT.

ALLEGED BLEACH,

EHRHOHN V. CHRYSTALL.

The following is the Magistrate s judgment in the case Ehrhorn v. Chrystall, a claim for £<•() for breaking in (50 heifers and .450 damages for breach of a share-milking agreement, hoard til last month's sitting of the Court locally: His Worship said plaintiff and defendant in 1915 entered into a share-milking agreement, defendant to line! the land and cows and plaintiff to do the milking. Defendant alleged several breaches of the agreement, and on July Ist last gave plaintiff notice that the agreement would not be renewed and demanded possession. The agreement contained a provision (hat if all was satisfactory it was to be renewed annually for three years. The plaintiff disputes the defendant’s right to terminate the agreement in the way it was done, and claims £SO damages for that, and also £(i(l for an alleged agreement made by defendant with him to allow him £1 per head for breaking in sixty-six heifers. By terms of the verbal agreement before it was reduced to writing defendant was to supply cows, but afterwards finding a dif-* fieulty in doing so told plaintiff that he would be compelled to get some heifers instead, and in consideration of the lesser yield from heifers and the trouble in breaking them in to milking, he would allow plaintiff £1 per head, should the share-milk-ing agreement not be renewed or bo

ended through no fault of plaintaiff. This additional agreement by defendant, and it is contended on his behalf that tlie evidence of it is not admissable, as after it. is alleged to have been made a written contract embodying (lie whole of the agreement between the parties was entered into, an agreement which gave the defendant the right, to direct as to the jn’oportion of cows and heifers that should be in plaintiffs herd. If the evidence as to this agreement is admissable, I think a jury would find as a fact on the evidence given that it was arranged as stated by plaintiff. Plaintiff contends that the breaches if any, were trivial, andtwcrc waived, and further, that I lie milking agreenienl, giving as,it does exclusive occupation or possession of an area of land, is a tenancy and could not he put an end to in (he way chosen hy the defendant. Two points arc therefore vital to plaintiffs case. (1) Is the agreement as to the heifers provable? and (2) was his right under the share-milk-ing agreement a tenancy?

The rule of law is (dear that when a contract is reduced into writing it, is presumed that the writing contains all the terms of it, and evidence will not he admitted of any previous or contemporaneous oral agreement which would have (ho effect of adding to or varying it in any way. But there are cases in which an oral agreement may exist between the parties to a written one on a matter collateral and superadded to it, so that both may well subsist together. In such cases oral evidence of the collateral matter is admissible for the original contract is unaffected by it. TTis Worship then quoted a number of authorities bearing on different aspects of the case. The verbal agreement about the heifers was made in August, and the writing was not signed till the following December. The heifers had by that time been broken in, and the consideration, if any, for ihc breaking in, earned. Both plaintiff and his wife say that, the offer of defendant to take this payment of £1 per head was an inducement for them to continue' milking. After defendant informed them that: lie could not get all Vows and would bo obliged to make the required number up with heifers instead. When the document was signed in December, the heifers were talked about. Defendant admitted this, but says it was plaint iff who said they need not be mentioned in the writing, as they were broken in and done with. Plaintiff and bis wife say it was defendant, who made the itemark. Whoever it was, it is clear that the heifers were discussed (hen. The part of the document referring to the number of cows and heifers to be milked reads; “The contractor .shall and will carefully milk from .90 to 100 cows and heifers, tho number to be at the employers discretion from the Ist August, 1915, ±o Ist August,, 1910, being a period of one year, etc.” This provision, can be read in two halves. Either it. refers only to Hie total number of animals to be milked or as conferring in addition discretion on the employer’s part as to the proportion of heifers to cows in the herd. I do not think it matters .which interpretation is put upon it. If he said the whole of the 90 to 120 milkers were to be heifers it would not affect the matter. It seems to me that having already completed the work of breaking in 66 heifers, plaintiff’s contingent right had attached, and the omission to re-state the promise of £1 per head in the written contract does not deprive him of this right. Judgment will therefore be fqr plaintiff on this P ar t lu claim for £66. Regarding the second part of the claim, plaintiff’s contention that the agreement is a tenancy has weight} authority to support it. In Palmer v. King (N.Z.L.E. 26, page 510) it was held that a similar share-milk-ing agreement was■ an agreement to lease, and before the employer would obtain a forfeiture for alleg-

£■■l breaches of it and get possession of the ground on which the cows were kept he must comply with the provisions of the Property Law A el. Pood,Landlord, and Tenant, Id, p 3, says; “A lease is a conveyance hy whicdi a person having 1 an estate in hereditaments transfers a portion of his interests therein to another, usually in consideration of a certain periodical rent or other recompense, . . .” The words in this document relating to (lie land are: ‘■The contractors (plaintiff) shall have the sole use of at least 140 acres to graze cows upon whicdi lie ,is milking." He had (he use of the 140 acres fur a year before his occupation of it was ended, as stated above. The alleged breaches of the contract were such as could have been compensated in money vain.' 1 , and as lino authorities quoted herein show that it was a lease, the formalities required hy section 04 of the Properly Law Act, 1008, should have been complied with. . The notice of Ist July last alleging breaches and demanding possession did not follow (bis section. Tin? plaintiff was doing well under (he milking agreement, and by putting an end to it. defendant bits caused him damage and loss. I think the amount sued for under (bis bead is not excessive. .Judgment will be for ibe £SO claimed, with costs. Security for appeal was fixed at £ls 15s, phis amount of judgment and costs.