DISTRICT COURT.

Manawatu Standard, Volume X, Issue 50, 28 July 1885, Page 2

DISTRICT COURT.

YESTERDAYvi Vj: *■ (Before Judtjo Rawson .)''.- > Wnittier v. Sykos!— "-Claim Mr Baker ior plaintiff and Mr Hankins f^or defendant. ' : \ G. Fulton said : lam the Resident Engineer of the Manawatu Railway Company. I a copy of the con . tract for felling bush entered into by William Sykes with the Company. . -Mr Hankins, objected to a copy of contract being put m, the original should \te produced;, m the absence of sufficient proof being ! given °£ contents and of loss of original, secondary Evidence cannot be given. . - „■ : Mr Baker : T^here id no law. to vcompel"the Company to produce any agree^ ment. ■■ . -•' - • ■''■-■■■' i ■■ :: ...- .■; Mr Hankins: They suffer the •' penalty; then.- • ; •.-•' >j .-' ■ i ' ';■•,.■'■ )'. Mr Baker : I submit your "honor where we have 'done. >all m our "power to have document produced may. give ssecpndary'evidence. ..., , '.-, '■■; '■•/'• - \ \ 'Mt Hankins : All' m your power ? How. c&h my I friend presume* it say he has done all m hid power to haye 1 original produce^?.: Why the subpoena* was '■'■ only . taken out about 10 minutes ago!: > \s?-u ' Mrl,B>ker elected lo. proceed without COiij;ijae> ,\ „- ■ i'-.?' i/\^:x-y : i** '"••'•<vv s - ■'■ J. Olf .; Fulton examined, /continued : I paid Sykesa'sum of money on account; of a. certain contract entered into \-by Syke"! witlr Raif^ray Company, butr canhot telbanipunt 6* ■ same without looking at contract. •- , Mrßaker here handed a copy,, o^ contract, to •/ „: t (.../■ • v '.' Mr,HanKins objected to same being put into .witness 1 ' hands.'. ■;..:■ ;;. V"; # .^ 5 M^'Bdker cbtiteiided witness nii'^Kt refer to notes. . .■■•■•■' ;" l "■•■- --i His Honor r-- If made at iibe time 'witness may refer, tp^sagae. !'" The witness .Cmi; : being asked if he Uhade notes at \wne'j ha had made Ithem just before p.ayjng to Sykes: , ,-- --■ sV!i'fcness to\. Mi Baker ;*; At. jtitcfe v J :made notes, the facts were fresh m my 'memory. I can- tell the exact amount of imoney pMd% Sykes by-referring v to my [notes, t paid by .^cheques which came |frpm^Wpllingtpn;> '* : ■,- .j y .<.;. .y, \:'Ur Haiifeins objected to the evidence: ! Mr Baker submitiied : We merely^have to prove tbtejamorntt^bf '•moriey • received 1 on ' a certain contract. I intend to • His Honott: Prove what Mr Bakeiy^uj? : d'on't wafece #Ie time, ofijie ■C.pjurtf.,. i- ■ ■■;•"/•;; ■ ■ .- '-' I -v' ■!?;.., ; : : '-'■ : -:^^. )■ Witness ebntinued-.:. ;.Qp.mpany ; never entered into .any contract with'Sykesarid Weisner. together. ' ; . ■ ... ■. • Herman Weishbr Isaid :. In; February Sykes owed me £11 Oa 6tl; f pi- day work. In February Sykes asked m<j to do' other Wppk, ,He said he had a contract "^withVRailway Couapauy. I asked for paymeriiii of wages on 2nd February; the same day he told me he had a f resli contract and wanted money to pay deposit. He said if you will leave your money arid go and get some working men'Vjia, ;lobk after contract I would.^'geyv-ihipE. 1 :--. profits; v.I agreed, 'to 'lot money stay m liis%^ll§y*l wa^Va§ain]-tp him about subletting: .s^e toW/^uc :to^tihd men to start|worl£| .1 liey^r' sigHe^ feHnd men", viz., ; /iiucinsky, Tskii^ar Setter," tod an-' Other. Sykea admitted to me what pripej he was^to get^Eof contj-ac,t) yi%.lis ;pei? chaih; ' He ha^ hot toraime since ;; thaf he[received money. I made np contract with men. 'iWas present when' contradt entered into by with men. Men made contract v with 'i Sykes. Had no verbal contKict with any of the^men, . I 'signed as witness to Setter's contract.. Went overwork with' men to showthenib what to (10, " I3jkoa' ocui»' iuc. Was uoii! present when men were paid- Never had rows ; with . Sykes. .„ Received- letter (produced])' giving notice of partership, if j anyj being ; dissolved' between .defendant aiid ; myself. '■■'. Don't know why I received letter. Sykes was- pllased s w'ith ■my work: . I have asked- him to pay me share vof: profits.- ; He has never offered to pay by cheque or otherwise. /Ineyer undertopk any liabOLty under the : whole coiitract.. ..,, . . ;.....■. ' ;.. , Cross /examined by; ; Mr Hankins : Enow what it is to go lii^tes m a con tract: Not aware that/on and February greater part of contract had been sub-let; by Syke3. "Made no, caloulati6ns:tO/rsQe what would make on. L con tract. I asked for >vages at interview ou 2nd. February.^ Sykes said he Had a .fresh contract and asked me .to leave, money, and get. v men . and \ye Would go' half sliare- of ' profits. This is the usual way when ,bushf alleirs" go ; mates. The witnfesf here, .hes'q:ated very much: as to his idea p'f term "coing mates." : ' ' ■i- "■ ." . ' Mr Hankins remarked : on Mr Weisner,' you .are not so ; ioolish" as you loolc." ..''■■ ; - i ; V.I -' Mr -Baker at, .this;,, got angiry. ; &rid said : j w)lt not permtt insulting, remarks to be inado to my client. Mr Hankins retorted aJid- continued examination. t / ':iv t : : Witness-"; Sykes never .told me how much deposit was required. 35e never asked for £7 ; 10s. My solrcitor never told me as to offer of ;£110%6d: : ! t?:w^ Re-examined by Mr Baker r.^Sjrkes never offered money at tfay< time: I never under took, to pay losses. Had to do what Sykes told me. > - Mr Baker wished to put defendant; m the -box. ' ■ f • Mr Hankins objected. . • Mrßaker : lam on ,my legs. . • Mr Hankins; : : You . .are, jumping Up every five minutes. .: ■; v His Honor :* Answer quietly Mr Baker. 5 Eyeil if counsel are not gentlemanly' they should m Court behave so; that your 'gentlemanly instincts should teach you. Counsel should toot'; be next door to impertinent. . .; -. ->V-t-.-Mr Hankins then submitted lhat parf-' nership issue should be determined first, which was not cognizable by; the Court, and proposed tb put defendant m. the box to settle the matter, and . prove partnership distinctly arid pited rules, m supnorj;.; Mt Bftker :■'■ I object ! to interpolations by counsel on the other side. I submit the question of paiinership was one of evidence and whether : certain fitcts amounted m point of law to a partnership. I insist upon my right to put defendant m the box. " : His Honor.: Well, Mr ßaker r -I shall rule yon out of order, ; " Mr Baker : Well, jour Honor, it is most distressing to me m the conduct of my case- thatlfehould be allowed' to" be interrupted. 4 Your Honor . alluded to ma a little while ago as being un^entleinanly. I subriiit<l-an> a gentleman; ~'~ : '' :; j His, Honor : As long as I. sit m. this. Court I wili not encourage counsel to have altercations. I. will have -no alterca,rtions..* There is a very great waste of time; the cases are spun put most unnecessarily, the most simple cases, through counsel, being made to appear intricate. ' ," „ ' Mr Hankins then called defendant. His Honor : .On second consideration; as Mr Baker thinks every one -fe= sitting upon him, it would be as well to 'let Mr "Baker go on with his evidence; ; ... . Mr^Baker theri preferred Mr. Hankins putting $ykes m the, bok. '..... William Sykes", swo^nV said : Am a contractor residing at Palmeratbn North. Had contract' m January -and February ■ with Rjiilway Company. .On: 2nd February Weisner was working -.with me on; day wagoa. Remember seeing, him qri, 3rd m reterence to fresh arrangement. No one else present. Told him had another Qpntract Said to him if " ypu like to go mates with me f pr 1^ .'miles, you can." He said he was quite willing. Had * deposit of £15 to pay on contract, Pid not proceed to work until 27th Feb.

maryl> Weisher was falling and clearing on 27th as mates. I was too. Consul tod plaintiff on one occasion. Asked him to sco. Ldqihsky about something. Gave hiinpi authority to lot subcontracts at 9s 'perehain. ■ Mr Baker : Not so fast, Mr Hankins, I I can't lake it down. Mr HanUins : I can't help that. . Miußaker : Let me take it down, Mi Hankins, let me tako it down. Mr Hankins (emphatically and loudly) : Take it down, then, Mr Baker 1 ! (Laughter m Court, iheJConstable bawling '; Silence !") • Witness resumed : We were only mates inJL^.mileg. Between 2nd and 27th February had sublet portions of contract. On acepunt of misconduct of Weisner I disblved partnership" and k&ve notice. I am quite surel.only agreed to go mates with. him as to 120 chains. Never led /W<?isjher tb believe )he was to get share of profits on' whole contract. On 10th March I tendered wages £11 0s 6d. I alsppffercd to pay 9s per day for extra work- He refused same. ■ ; Crossrexaminfed'by'Mr Baker: I was m partnership with Weisner only as to 120 chains." Engaged all. men, made terms, £c. It is an easy matter to decide what 1 the profits might' be on 120 ohainsr-i Herman Weisner : My agreement with Sykes extended to the whple contract 11 miles 70 .chains. Knew nothing about 120 chains. Willjani f Sykes re-called: I received lls pet- chain' for some portion of con- • tract. ' -I sublet all. After contract completed had to pay extras under £10. Cross-examined by Mr Hankins : Have worked 111 days , from first to last on whole contract. - Exgected to make 16s to £1 per day. ill d.ays at 16s, £88 16s. Paid for horse hire £S. Supposing I was mates with Weishe.r for whole contract, after payingS^jiges and horse hire, I should be jl^t^^f^ pocket and Weißner would hay©;|^^^^e-sjiJitnething. Re-exa«u^^|^l^^aj^Br^ I admit going i^o^arm«|hip^as|"fo 'part of contract with^JV'ei's^ri-^'rT-i/ " v-,'.-':^'-'" To h^;^bnorJ:/Pla|iitiff never worked on any W%p ssc^oi^ :^f r cpntra6t. He • was employed by* ine.r before at 9s per • day. Nfever tateri uiltes as to any other | part of con|iact;v Have iiad several con»tracts fb^^o^rjQm^nti^and Railway iCoaipan^;^rhiw^.^: ; jj;^!usual clauie m icontracts fiubje||iffg;fc!sntVactors to fines ;if not finished'ifi^ime. : ; ; ~"'l : \ William Grafiiiiai|i\Franeiß Lucinsky, sCasper Setter, pß|Sjosejph Dalziel «aye feyidence forplainiaff ;Jfi:6m each the fact hvas eliicted thafc'Sykes was thejparty Hvithwhom they contracted for certain "parts of contract.. ; After Mr Hankins and Mr Baker had addressed the jury, (: fi ,t His^ Honor told the' jury there was no dini■cultyin the case. Plaintiff's claim was £47 10s. He alleges put of whole contract .defendant agreed Jo go shares. Says profits2s per-chaibf after allowing£6 extra jclaimjis reduced to £41, as share of plaintiff off "11 '■' miles 70 chains. Defendant alleges no agreement of ; partnership as to jwhole, only as to 'part. It is a question for you to consider whose evidence is most probable.' Sykes signed agreement VJMli^ble for all>penalties thereunder. tWeisner had nothing to do with it. If he .were to |be partner then he would certainly be liable too. Is it at all likehr that Sykes < 'would be such a fool ? If you ar,e satisfied from evidence plaintiff was" to liaye share Vri whole contract give verdict accordingly, if not, and eyen if you- are doubtful, defendant must get verdict? - ■ •; After jury retired for 5 minutes, they returned a verdict for defendant.- Costs Allowed, £3 19s. ' ■ . v [Left Sitting*!