RESIDENT MAGISTRATE'S COURT

Nelson Evening Mail, Volume XIV, Issue 127, 29 May 1879, Page 2

RESIDENT MAGISTRATE'S COURT

[Before L. Bboad, Esq., R.M.] H. A. Levestara v. N. Edwards & Co.— Claim to recover £28 1 3s 4d for damages sustained by the plaintiff by reasoa of his having been wrongfully dismissed by the defendants from their service as engineer of the steamer Lyttelton, whereon the plaintiff was engaged at £20 per month. Mr Pitt appeared for the plaintiff and Mr Actoa Adams for the defendants. H. A. Levesiam • I was in the Lyttelton until the End August, when the boat was laid up. I was then employed on the boat for the Fouudry. I joined her. again in October. Or. the sih April I was told my services would not be required after the end of the month. On the 28th she left for Blenheim, and I asked what I was to do and was told to n:ake another trip. On the 30th April at Blenheim, I was told by the captain to get up steam at midnight which I did We went to Wellington nud returned on the 13th May. I was then offered thirteen days' wages which I refused, saying that I claimed for a month. Two hours later Mr Gullv aaid he wanted me to sign articles, one of the terms of which was that I was fo receive 24 hours notice. I refused to do this, whereupon he dismissed me. They subsequently paid me £8 13s 4d, being wages up to 13th May. Cross-examined i In August last I was doing foundry work on board the Lytteltou at reduced wages. I went back to sea at the o'd rate of wages of £20 per month. The old articles expired on the 31st December, and no new ones were signed. The usual custom is that when a boat leaves the port a few days before the expiry of notice to a seaman, he does not go to sea in her but is paid up to the end of the month or whatever the time may be. This was the plaintiff's case. Mr Adams, for the defence, argued that Levestam knew perfectly well that he was engaged upon the terms stated in the articles. He received notice on the sth of April to leave at the end of the month, and although this was not a month's notice, he raised no objection to ifc, and it was the ordinary custom of the Port that if a seaman was engaged at sea for a few days after the expiry of the term for which he had received notice that he should receive wage3 for those few days only. On finding that he would not go he was required to sign the ordinary articles of the Anchor Line, but he refused to do so, and then he was told that he must go. The fact was that the articles had been prepared in January immediately after the expiry of the previous ones, but through some accident they had beea put ;away in a drawer unsigned, and had since 'been forgotten. Those tendered to him on the occasion in question were precisely similar to those which he should have signed in January His Worship: The fact was then that you sought to place him in this position— lf you sign you give us the power to dismiss you'at 24 hours' notice ; if jou don't we will dismiss you because you refuse. Mr Adams : No, that 13 not exactly it. Under the Act we subjected ourselves to a penalty for carrying seamen who had not signed articles, and having discovered that we had been doing so we wished to set the matter right, and declined to take Levestam until he had signed. He refused, and we then told him that we could not take him to sea. He was bound by law to sign articles, but was on board from January to May without doing so, aud is now seeking to enforce a verbal contract which is contrary to law. It is quite clear that such a contract cannot be enforced either by one side or the other. Mr Pitt : It may save my friend time and trouble if I say that we are not seeking to do anything of the kind, but are simply enforcing a common law contract. Levestam was perfectly willing to sign articles, but not any that they might chose to dictate to him. Mr Adams : I say that Levestam is sneing for breach of a contract that was not allowable by law, and that no action can arise out of an illegal contract. He never entered into any agreement other than that upon which he was first taken on. Seeing that we were somewhat in a fix he said, " I've got you and will make you pay to the tune of £20." When they saw what he was driving they replied," We will carry you to sea but only upon your signing articles." It was only upon his refusal to «o without notice or payment in lieu thereof that they discovered the omission that had been made in neglecting to have the articles signed. His Worship : It seems to me, Mr Adams, that you are most laboriously endeavoring to show that for some montha you had been persistently breaking the Jaw. Mr Adams : We certainly had, but unwittingly, and as soon as we discovered the mistafce we set to work, to rectify j t by m]llu j

ihe seamen sign. If the arlicies bad. been tendered to Levestam under ordinary circumstflucesj there can be no question that he would have signed them without hesitation. Mr Pitt was about to reply, wheb His Worship said [that it was qiiite clear that the loctds were altogether oh the part of the defendants, who were entirely to blame for the action being brought at all. It would have beeu much better that they should have paid the wages demanded than haffe allowed the case to go into Court. I hey made an illegal contract the penalty for Which (not exceeding £6) was placed on them by hhv, iihilwhehti telaitk wtia riiade under that contract they sought to evade it, by reading the illegality o'f the contract It seemed to him most unfair, and he should decide the case according to equity and good conscience. The whole of the facts as adduced showed that the defendants were v/rong all round; and the defence which they had set up' wiis a most iitigratioiis one. They found after a lapse of three or foiir iiiohths that they were carrying men without a legal contract, and wished to discharge one, but were met with a refusal to go un!es3 a month's notice or a month's wages were given. Then they fell back upon the illegality of their own contract, and on that ground refused to pap he wages to which inequity and simple justice the phlntiff was entitled. He should give judgment for the balance of the mouth's wages £[l Gs Sd, with costs £3.123.. The defendants, we understand; intend to appeal. Jennings v. Wilkie. . William Wilkie was charged by the informautj the Inspector of Nuisances, with storing a certain dangerous material, to wit, kerosene, in a building in the Borough of the City of Nelson, for which a license had not been issued under the by-laws. Ar Atkinson appeared for the informant, and Mr Pitt for the defendaut. Mr Atkinson having opened the case, called the informant, who stated that he had gotie to Mf Wilkie's kerosene store, and there saw over 20 eight-gallon kerosene tins. Cross-examined • I did uofc examine the tins, but men like Mr Wilkie don't keep empty tiiis in Store. H. V. Gully, Town Clerk; deposed that no license had been issued to the defendant, except that which expired ou the 31st December last. Cross-examined: The license produced was issued to the defendant in July, 1878, and he was charged £\ for it. Tnis was the case foi* the informant. Mr Pitt said that his Client's real objection was that he should be called upon to pay for a second license after payitog the full year's fee for one which Only held good for six months. He had, however, advised him that he could not resist upon that ground, but he wasdesirous of contesting it upon every point. He (Mr Pitt) then, objected that there was no such borough as that of the City of Nelson. The Corporatiou was known as the Corporation of the City of Nelson, and it had not been proved that there was anv such borough. He further objected that Mr Wilkie had not been proved to have any kerosene iu his possession. Mr Jennings had seen a number of tins in the store but did not actually know that any of them contained kerosene. Thirdly, supposing that the tius were full of kerosene it had not been proved that it was a " dangerous material." Iu the " Dangerous Goods Act '* petroleum and kerosene were defined to be dangerous if they emitted an inflammable valour at a certain temperature. It had not been shown that the kerosene in question did this. Mr Atkinson having replied, His Worship reserved judgment.