RESIDENT MAGISTRATE’S COURT.—GISBORNE.

Poverty Bay Standard, Volume X, Issue 1215, 2 December 1882, Page 2

RESIDENT MAGISTRATE’S COURT.—GISBORNE.

Y r ESTER DA Y. [Before M. Price, Esq., R.M.] GOULD V. REES. Claim £lOO, for salary. Mr Kenny for plaintiff’. Mr Brassey for defendant. Mr Kenny having opened the case for the plaintiff, called Alfred Gould, a law student, living in j Gisborne, who deposed : (Mr Brassey here objected to certain items | as excluding the claim from the jurisdiction i of the Court. His Worship elected to pro- : ceed with the evidence.) 1 was engaged by Mr Rees as his clerk in April or May, 1878, at a salary of 45s per week. On the 12th July in the same year I entered into articles with him. I produce a copy of articles written and compared by myself. I asked Mr Rees whether I should stipulate in my articles the salary. He replied “No, don’t make salary a stipulation in your articles, but remain now at your present salary. Y’on may rely on me to pay you salary, and if you behave yourself your salary shall be raised.” He never mentioned an honorarium. From Al ay, 1878, to July the 12th, I was paid a regular salary at 45s per week. Since then I have been paid from time to time on account of my salary. All items appearing in the account are payments on account of salary. Rosie’s account against me for £5 10s, was paid by Mr Rees out of my salary. I served Mr Rees faithfully as his clerk up to the 17th November last. He never made any complaints of me until the 17th November last.. I had charge of Air Rees’s business in Napier, when he came up to Gisborne, for more than six months. Air Rees, in an urgent telegram to me, expresses his satisfaction with me. I applied to Mr Rees for an increase of salary, and he said “ Oh I yes, when things improve.” On the 17th of November last I had an interview with Mr Day, Mr Rees’s managing clerk, and we both signed an account as correct, amounting to a balance due

nW of £67 2s, I had great difficulty in getting mv salary from Mr Rees, I rendered Mr Rees an account on the 17th of November, of which I produce the copy, with the letter. I was told to call on Saturday (next day). 1 called, and he told me to call again on Monday, at half-past 10. I said I would be there sharp. I called and found he was not there. I met him in the afternoon, and he said he did not admit owing me anything, as I was articled. I said “ Very well!” and left him. 1 often told Air Rees I was pressed for money. 1 was dependent on my salary. Mr Rees discharged me in consequence of some words. I asked Mr Rees for some money, and he told nie (’apt, Tucker had been complaining about my not engrossing some deeds, and it ended in his discharging me. Cross-examined by Mr Brassey ; I was in Mr Rees’s employment on June Ist, 187<8, at 455. per week. 1 rely upon that agreement and the promise made by Mr Rees, on July !2th, 18/8, to continue that salary. [ used the word salary. lam quite certain Mr Rees never said|he would make me an alowance and not pay me a salary. My articles arc for five years, and ar»» not yet out. I culled the account from Mr Rees’s books. I cannot identify all the items, but I must have received the money. Sometimes Mr DeLautour paid me, sometimes Air Day, and sometimes Mr Mclntosh. I went into Mr Rees’s office after I had left his service and copied the books, and I made up this account from that. I have signed receipts from time to time for salary, but I cannot say on what dates. 1 say Mr Day signed an account, which 1 had previously signed, as correct for £67 2s. Mr Rees told me 1 could rely upon him for payment of salary.

By Mr Kenny : Mclntosh, White, Lewin, and Grace, four articled clerks in Mr Rees’s office, were all paid salaries. (Certain office account books were here produced, according la subgtena duces tecum, in which the entries showed the various payments to be distinctly debited to “ Salary.”

W. L. Rees, sworn, deposed ; Mr Gould was articled to me as clerk. I refused to agree to stipulate a salary in his articles, but told him he must leave all monetary matters to me. I took him without a premium. I never would bind myself to an articled clerk. It is the custom for articled clerks to pay a premium, and not receive a salary. The items charged in my books are called salary, because they must be debited to something. 1 never authorised any settlement between Mr Day and Mr Gould. I never dismissed Mr Gould ; he is my articled clerk at the present time. I told him he had better get his articles shifted because I was dissatisfied with him. (Mr Rees here read Mr Gould’s articles.) I was ignorant of what Mr Gould was receiving. He asked me to pay his account, and he handed me a sealed envelope. I asked Mr De Lautour to look up Mr Gould's account, and he was making up Gould's account, which I would have paid as a debt of honour. I met Air Gould next day, and told him so, and that he had no legal claim upon me. When I paid Rosie's account it W’as not on account of any agreement to pay salary. Mr Gould has not done a fortnight’s work in my office during the last six months.

Cross-examined by Mr Kenny : I remember the action brought against me by Mclntosh, but I can’t say why 1 didn’t defend on an identical plea. I would not swear unless I had the pica’s before me. I always made the same stipulations with articled clerks about salary. I have not been in continual hot water with my clerks about salary, I don’t think <trace was an articled clerk of mine. White was, but I don’t believe he served me with a summons for salary, i have a good memory for important matters. 1 do not believe Mr White ever summoned me for salary. (Here ensued a passage of arms between Mr Rees and the Counsel for the plaintiff.) I do not know that Mr DeLatour was not going into the account. I cannot describe the insolence alleged. I did not tell Mr Gould I would give him a cheque if he would call, nor that he was to make up his account and I would give him a cheque when the bank opened. There was n great deal of work to be done in the Books and I frequently spoke to Mr Gould about it. I don’t believe my Napier accounts are made up yet. 1 paid Rosie for Gould on account, of an allowance, not of salary, if that word imports any agreement.

Crew-examined by the Court j After the articles were signed I never told him 1 would continue the £2 5s as salary. Ail articled clerks by their articles are pupils absolutely without remuneration. The consideration for articles is legal education. There is generally a premium paid.

Victor Grace Day sworn deposed : I remember having a conversation with Mr Gould about Air Rees refusing stipulation of salary in the articles. I have no recollection of signing a paper re Goulds account. I had no authority for doing so. Mr Rees povs me no salary. The articles are similar. Air Rees allows me something. By the Court : I have cheeked payments with Mr Gould. We arrived at a conclusion but only in accordance with figures and entries for whose authenticity 1 cannot vouch. Mr Brassey addressed the Court for the defendant, urging that there being no contract in writing, the agreement for payment, if any, did not come within the Statute of Frauds, and must fall to the ground. Mr Rees's explanation of the word “Salary” being used in his accounts of payment to Mr Gould was perfectly feasible. He would submit that the weight of evidence was in avour the defendant, and the case “not coming within the 4th Section of the Statute of Frauds ’’ the defendant is entitled to a verdict.

Mr Kenny, in reply, said the first point was the question of a contract existing outside the articles. The accounts given by defendant and plaintiff as to the conversation between the parties respecting this were discrepant. So much so, that one witness or the other must wilfully have disregarded the truth. The overwhelming evidence given by the books spoke volumes in Gould’s favour. Mr Rees’s behaviour in the witness box was another great point. He judiciously forgot everything that he did not want to remember, and endeavoured by insolent replies to disconcert the examining counsel with a view to prevent any elimination of the truth. He should urge that Gould had well and faithfully performed his work, and he had no doubt the insolence alleged was provoked by the defendant. His Worship in summing up said, it was a happy thing that the Bench was able to see things without letting in a spirit of animosity. This was an action to recover wages for work done, the defence to which is the setting forth of the articles, and their silence as to monetary consideration. Then arose the question of remuneration. He would not attribute falsehood either to plaintiff or defendant, who both said what they believed to be the case. The difference between them laid in the question of whether it was a salary or a gratuity. There is no doubt whatever, taking the books into consideration, that the plaintiff' had been in receipt of certain sums during the past four years without any words ; but, when the day comes that quarrels arise, then these matters become subject for action. Is the defendant entitled to something ? Quantum meruit’! I think he is. Take the instance of this young man who has no means beyond his earnings. Is he to be suddenly cut off from what he has been in receipt of for four years, and cast adrift, because the articles don’t compel it ? I think the plaintiff in this action is entitled to a

guamtum meruit. He should give jurtgmen for plaintiff for £5O os, and costa £5 Bs. Nun Pahuka v. Edward Harris.—Ad* journed till Tuesday next. Riria Hokekbv. Pknk Heiha.—This wad an action to recover possession of a chesnUt horse, value £2, which the plaintiff alltgM the defendant illegally detains from her; or the value thereof. The plaintiff could not assert any real claim, relying entirely on money advanced by her for service of a stallion, of which th j horse in question was the progeny.—Dis missed. Peters v. Watene TATAfAiWi. —DU missed.