SUPREME COURT.

New Zealand Times, Volume XXX, Issue 4470, 17 July 1875, Page 2

SUPREME COURT.

CIVIL SITTINGS. Friday, July 16. (Before his Honor the Chief Justice and juries of twelve.) The Court sat at 10 a.m. SMITH V. JACKSON AND ANOTHER. An action brought by John Smith against William Valentine Jackson and William Graham, to recover £74, for materials supplied and work and labor done. Mr. Hart (instructed by Mr. Buckley), for plaintiff; Mr. Travers (instructed by Mr. OUivier), for defendant. Jury : S. Howard (foreman), Cook, Hearsley, George Sykes, Knight, Lawrence, Lemell, Lowe, Murphy, Wright, Anderson, Grattan. The case for the plaintiff was proceeded with. Charles Seager proved that a mechanical engineer engaged at 15s. per day would not be expected to find tools. He had • employed Kitson at that rate, and did not expect him tofind tools. Cross-examined : If a person contracted to do the whole work complete, he would have to find all things. Ite-evammed : I always charged for the useof the lathe and the labor of a man to drive it 30s. per day. William Gibson, iron merchant, alleged the supply of goods between January and June, 1873, to Jackson and Graham. He could not speak of his own knowledge, but merely from Ins book. Jackson and Graham paid for the goods. Thomas Bitson, having been recalled, gaveevidence respecting some of the items. This closed plaintiffs case. Mr. Travers opened the case for defendant. He regretted that such a case should have had to come before the Court, but defendants had r no alternative. Plaintiff had agreed to do the whole of the work at 15s. per day, instead of taking a contract for a lump sum—defendants to find the material They never authorised l him to go to Mr. Smith, and had no idea of being charged by Mr. Smith for the work, though they were willing to pay for the material, without prejudice. They believed Mr. Smith to be a perfectly respectable tradesman,, who had really supplied the material and done the work, but he ought to have seen that Bitson was really authorised to pledge defendants’ credit to the extent of £7O or £BO before allowing him to have the goods. William Valentine Jackson deposed : I am a wharfinger at Wellington, and was some time ago in partnership with Mr. Graham. In 1573 we employed Mr. Bitson to move an engine from the barracks to the wharf, and connect it with a woolpress there. We first offered him a lump sum, but he refused, and we agreed that he should do the work at 16s. per day, with 10s. a day for his son. We expressly agreed that he should do all the work and find all tools, we finding material. I asked if he had a shop. He said not then, but he could go to Mr. Smith’s to do what work he had to do till he got a shop of his own. When I made the arrangement, Mr. Graham and our wool clerk,. Mr. Williamson, were present. He had nothing to do beyond the specified work. This was the first transaction we had with him. The items amounting to £7 Bs. Bitson had nothing to do with. We paid him upwards of £IOO for the work. In the account Bitson furnished us with were items, “one patent injector,” and “ files.” We paid for the injector because we looked upon it as material, but did not pay for the files, which we looked upon as tools. When he produced the account he did not say anything about Smith’s account. We had never authorised him to go to Smith’s. We arranged that any material he wanted he was to get a written order for before obtaining it. He was not to pledge our authority for any particular article except we gave him an order. The letter (put in previous day) declining to recognise Smith’s account, was sent immediately after the receipt of Smith’s account, after the work had been done.

Cross-examined: A cog-wheel was purchased from a person named Buck by Mr. Eitsom There was no written order for that. Mr. Lawrie, a plumber, also did some work. He was ordered to do it by myself personally. I never went to Mr. Smith’s shop. Be-examined ; We wanted a cog-wheel, and hearing that Buck had one, got it from him instead of going to the expense of having it cast.

To his Honor : We paid Ruck for it. William Graham gave corroborative evidence respecting the nature of the agreement. Went to Smith’s several times to look for Ritson, being aware that work was being done there for Ritson. Did not know that the firm was being charged for the work. Mr. Smith never said it was being done for the firm. Ritson, at the time the engagement was made, said he had not a shop of his own, but would get the work done somewhere. It was to be done at Ritson’s expense. After Ritson handed the engine over as complete, we had to get other cog-wheels for it. "When I saw the work going on in Smith’s shop, I believed Ritson was using the shop, as he had stated he would do.. James Henry Williamson, clerk to defendants, also gave corroborative evidence as to the terms of the agreement. The 15s. a day for Ritson, and Ids. a day for his son, was to include everything except material, which was to be obtained on order only. Edward Seager, mechanical engineer, proved' that he had examined the steam engine and woolpress on the wharf which had been referred to. Found after Mr. Ritson had finished that there was a waste of power, and that it would do more work if slight alterations were made. For £IOO he would have done the whole work—that was the engineering work, including the supply of bolts, use of workshop, lathe, &c. Cross-examined : I would find all materials and smith’s work for £IOO. It would be necessary to employ a lathe ; that would cost 16s. per day, exclusive of labor. To His Honor: I could see what work Ritson had done. Cross-examination continued : I should expect an engineer to do smith’s work. An engineer is usually paid 125., but in that case he would be working under a master and be devoid of responsibility.

Re-examined: If I had undertaken the work, I should have used the same materials as Ritson used. It could all be done for £IOO. Sixteen weeks is longer than I should have taken. In that time two men ought to do the whole thing. The material is a mere nothing as compared with the amount of the labor.

Mr. Travers said that was the case for the defence, and he thought it was simple enough. Clearly defendants were not liable, and plaintiff had his remedy against Ritson. Ritson had undertaken to do the work for a certain sum per day. He had contracted to do it for a certain suni per day, including all work and labor of any kind that might have to he done, and in making that contract he ought to have considered what labor he would have to employ, and had a right to calculate that in the time for which he waspaid. Hehad made an arrangement with defendants to do certain work, for a certain sum per day, instead of for a lump sum; and defendants expected him to do that work. With any arrangement he might have made with Smith defendants had nothing to do. Whilst the work at Smith’s was being proceeded with Ritson had not been employed at the other work; on the contrary, the evidence showed that if he was wanted he was not to be found on the wharf. He was always at Smith’s shop, and consequently defendants never had the shadow of a suspicion that Smith was doing the work on their account, and that they were to be charged for it. They had no desire that Mr. Smith should be subjected to unnecessary hardship, and had therefore offered that, if plaintiff would extract from his account the items charged for material that had been used, they would, although they had not ordered the material, pay for it; but they woidd not acknowledge their responsibility for the work.

Mr. Hart replied upon the whole case in a speech of considerable length, contending that the plaintiff’s case was fully made out, and that even if the defendant’s view was adopted, viz., that inasmuch as he had not specially instructed Smith to supply the goods he was not liable, still he was liable because they had not communicated to plaintiff the nature of the arrangement with Ritson. According

to their own statements, they had continually gone to the wharf to see how the work was getting on, and they must have seen large quantities of goods coming on to the wharf, which they had never given orders for. ret no inquiry was made as to where the goods were coming from. It was clear that either they regarded the delivery of those goods as perfectly regular, or they had seen the goods coming on to the wharf and intended to dispute payment for them, by asserting they naa never ordered them. That would not be exactly honest. In either -case they were liable, for if they had seen the goods on the wharf, knowing they had not liitson authority to pledge their credit without an order, it was their duty to find out where the goods came from, and give notice to the person supplying them. In default of adopting this course, they became responsible. In respect to the work done by Smith, the learned counsel’s argument was much the same in effect. He also ridiculed the idea that an engineer was to be expected for I os. a day to find the large quantity of extra labor that had been proved to have been obtained, labor of a character that Bitson was not at all acquainted with. ~ . , His Honor, in charging the jury, said the only question of law to which he should have to call their attention was the question of agency. A person, either by means of express authority given, or by means of an express course of conduct at one time, was frequently bound by the acts of another person, though he had withdrawn the authority, or had even given the agent express instructions not to pledge his credit. For instance, a domestic servant, a gardener, a clerk, or a shopman, might involve a man in liability, although the master might have expressly directed the servant, gardener, clerk, or shopman, that he should not do the act he had done. It was in thisway: Supposethemasterhadauthorised the servant on an occasion, or on several occasions, to f'o to a particular merchant, or a particular tradesman, and buy goods upon credit, without supplying him with the money to pay for them, and the goods ordered were sent to the master’s house and the master paid for them. Then suppose the master told the servant not to order any more goods on credit, and on another occasion sent the servant to buy goods, and <*ave him the money wherewith to pay foi the o-oods ordered. If that same servant went to the same shop that he had been to before, and did not pay for the goods, but ordered them to be sent to the master’s house on credit in the same manner as he had done before, then the master would be liable to the shopkeeper, notwithstanding that he hail withdrawn the authority to pledge his credit, and had moreover given him the the money to pay for the goods. To have avoided this he should, when he withdrew the authority from the servant to pledge his credit, have also informed the tradesman of the withdrawal of the authority. Failing that, he was certainly responsible. How, some such principle as that seemed applicable in the case before the Court ; but having laid down the rule, he would leave it to the jury to say how far it was applicable. His Honor quoted from a textbook to show how the_ rule was applied, .and stated that authority, once established, was binding unless it was distinctly withdrawn by notice. Mr. Travers said no doubt that rule "was correct, but he should like his Honor to make the jury understand that if a man gave an employe authority to get goods at one shop it did not imply that he gave authority to other servants to get goods at the shop, non could the person authorised to get the goods at one shop on one occasion go to another shop on another occasion, and the master still be liable. His Honor: Clearly not. It must be the same person and the same shop ; and if that were so, it would not matter whether he had subsequent authority or not, and it did not matter whether the master ever saw the goods or not Even supposing the servant had ordered the goods and used them himself, still the master was liable for them. There was a case reported to that effect. Turning to the evidence in the case before _ the Court, of course, if the evidence of Smith and Kitson were correct, and Batson, as he asserted, gained credit on the authority alleged to have been given, there was no doubt of defendants’ liability. Or even if Kitson had no authority to get credit, if the jury thought that the evidence bore out the contention of Mr. Hart that the defendants had recognised their responsibility by not disputing the authority of Kitson to get the goods on credit, still they would tie liable. If they recognised Bitson’s authority to get goods, they must find for plaintiff. Mr. Travers : Recognised his authority to get goods from Mr. Smith. His Honor : From Mr. Smith. If the jury found upon the evidence that Kitson had been authorised, or his authority had been recognised, in getting goods from Mr. Smith upon the credit of defendants, then the defendants clearly were liable. That was the only rule of law he had to call their attention to, although it could scarcely be called a rule of law so far as they were concerned, because it would be - with- them rather a question of fact as to whether plaintiff had acted upon a presumed authority and whether the presumption was good. Now, as to the evidence of the case, plaintiff’s contention shortly was, that the Soods had been obtained by Kitson, and the labor done for Kitson, as defendant’s agent, for the use and benefit of defendants. As to the justice of the claim itself, there seemed to be little dispute. So far as could be seen, fair prices had been charged, but defendants denied the liability. They said they gave Kitson a certain work to» do, and there was an express arrangement between them. He was to do the whole work —to do all that was necessary to be done to the woolpress and engine, except finding the material, which he was to obtain on written orders to be supplied on application, and he was to be paid at the rate of 15s. per day for himself, and 10s. per day for his son ; and that when that work was done, they paid him according to the contract made, I hey had never given him authority to go to Mr. Smith for anything, and never had had any reason whatever to suppose that he was getting goods from Mr. Smith on their responsibility. Plaintiff, in answer to this, said he relied upon Mr. Kitson’s evidence to prove that there had been no such express arrangement ; that the arrangement was simply a contract to perform the engineering labor at 15s. per day. Secondly, even supposing that such an arrangement as defendants asserted had been made, that did not affect the plaintiff. They had not given him (plaintiff) express notice of that arrangement, and their conduct in regard to articles which they knew he had supplied had been such that it must be taken as authorising Kitson to get the goods on their responsibility. Those were the contentions of the parties. His Honor then proceeded to call attention to the nature of the pleadings. The first issue was, were the goods mentioned in the declaration and particulars of demand sold and delivered by the plaintiff to the defendants? That, of course, involved the whole question. Secondly, was the work and labor mentioned in the declaration, and in the particulars of demand, done and performed by the plaintiff for the defendant, and at their request ? ' Thirdly, was the engine, lathe, and tools mentioned in the declaration and particulars of demand supplied for the use of defendants ? Fourthly, were the chargee reasonable ? Of that there seemed to be no question. Beyond a doubt they were fair, supposing the work was done. Fifthlv, was the plaintiff entitled to recover any, and if so, what sum beyond the sum of £7 Bs. paid into court, by reason of the matters in the declaration alleged, or any of them? Well, of course they were not entitled to recover more, because the articles were shown to he merely of the value of £7 Bs. Mr. Travers : We say, your Honor, that £7- Bs. is sufficient for the whole of the demand. We produce a receipt for £3 165., and pay £7 Bs. more into court in satisfaction of all further demands.

His Honor ; Oh, I see. There is a special issue put respecting the £3 165., which is admitted to have been paid for the repairing of a weighing-machine. The contention _ for plaintiff was that there were weighing-machines repaired and only one was paid for. One item appeared in the account on 28th May, 1873, j£3 165., for repairing a weighing-machine, and the other appeared on sth December, and was entered as “ Making platform for

weighing-machine, &0., £3 16s. So that although the charges were the same, the items appeared to be different. His Honor then proceeded to read over the evidence of the principal witness, and pointed out the deductions to be drawn from the more important points. He read the letter sent by defendants to plaintiff, denying liability, but offering to pay for the material actually used, and remarked that although this letter had been sent in March, and plaintiff refused to forego his claim, defendants, in the following August, settled up with Bitson, and yet never seemed to have said a word to him about plaintiff’s account. Bitson had first sent in an account for £l3l, but it was reduced to £79 18s. by contra account, and a further sum of £29 18s. taken off subsequently, because, as alleged, and it was not contradicted, his son had not worked properly. Thus the claim was reduced to £SO, and this was paid, though the the defendants had first written this letter to plaintiff. Passing on, his Honor remarked on the circumstance that it had been stated that Bitson had a running account with plaintiff, and put it to the jury whether they thought plaintiff had first charged the goods and labor to Bitson, but finding he could get no money from him, then charged the amount to defendants. In concluding, his Honor said plaintiff on the one hand was not entitled to more consideration than were defendants on the other ; it would be just as great a hardship for defendants to lose their money as it would for Mr. Smith to lose his. For although Mi-. Smith complained that he had not been paid for his work, Messrs. Jackson and Graham said they had paid for the work once, and if they lost this action they would have to pay a second time, owing to the laziness or misconduct of Kitson ; so that the grievance on one side w as as great as the giievance on the other, and the one party was entitled to sympathy no more than the other, supposing such a feeling as sympathy was admissible in the jury box. No doubt it would have been far better if the case had never come into court at all, and the time of the jury should not have been occupied with it. If certain cases which were disposed of in the Resident Magistrate’s Court ought to be settled in the Supreme Court, it was clear that cases such as that then before the Court, even up to any amount, he was going to say, should not get beyond the Resident Magistrate’s Court. However, the sum in dispute was beyond the jurisdiction of the Resident Magistrate’s Court

Mr. Travers : Except by the consent of the parties. His Honor : Exactly. However, it being here, we have to deal with it. I have given you all the assistance I can, gentlemen. You will now consider your verdict. The jury, after deliberating an hour, found for plaintiff on all issues, and awarded a sum of £63 13s. The Court then rose.