SHAREMILKING CLAIM.

Putaruru Press, Volume II, Issue 42, 7 August 1924, Page 2

SHAREMILKING CLAIM.

THE PIARERE CASE. Plaintiff Awarded £lB 14s lid. Defendant Succeeds For £l. Judgment has been given by Mr. J. H. Salmon, S.M., in the case brought by Harvie John Morrow, sharemilker, Piarere (Mr. Johnson), against Roderick McKenzie, farmer, Piarere (Mr. Bell). The case was really in the nature of an adjustment of accounts, and involved a claim and a counterclaim. The judgment reads as follows: — “ This case arises out of a dispute on a sharemilking agTeement and a claim and counter-claim have been filed. The agreement was for the season August 1, 1922, to May 31, 1923, and there is no doubt that the parties were satisfied and carried on amicably up to May 9, 1923, on which date an excellent testimonial was given by the defendant to the plaintiff.

“ The items admitted by the defendant as due under the claim are as follows:—One-third bonus cheque for £7l 11s, £23 17s; one-third refund on cartage, 18s; one-third cream for May, 1923, £2 10s 8d; one gallon of kerosene, 2s; one-third supplementary bonus, £5 9s 3d; gross total, £32 16s lid. less credits allowed, £l4 2s; net total £lB 14s lid.

NO SHARE OF SHARE DEDUCTIONS. “ The first item in dispute is a claim for one-third of the amount deducted by the company in respect of defendant’s coal and timber shares. Upon a proper construction of the written agreement, which is clear and unambigupus, I think the defendant is properly entitled to deduct the amounts first credited to him by the company by way of special bonuses in respect of coal and timber shares and then applied by the company in part payment for such shares. The plaintiff alleges that he knew knofliing about these coal and timber shares, and that he had in mind only the butter shares. It is impossible for the court to disregard the terms of the written agreement;. There is no allegation of fraud, and the terms of the written agreement being clear and unambiguous, plaintiff’s version of what he thought to be the proper'lnterpretation of this clause is not admissible. This item of the claim is therefore disallowed. LABOUR, ETC. “ The item of £7 4s representing labour of plaintiff and his hired men in concreting a drain would I think be properly chargeable to the defendant. There is no doubt that it was a permanent improvement on defendant’s property. The claim is for the time of the two men at Is 6d per hour for 48 hours each. The defendant denies that the work took more than 33 hours. He paid £5 to the plaintiff in respect of this work shortly after it was completed. This payment is admitted. I am not satisfied, on the evidence, that plaintiff has established this item. I think it probable that the plaintiff was, as stated, well satisfied with the payment of £5 at the time, and that the claim for a balance is an afterthought. “ Other items in dispute on the claim represent claims for extra work at Is 6d per hour. In view of the evidence as to the methods adopted by the parties whereby plaintiff kept his own time, and' put in a note of such time to the defendant at intervals, and in view of the fact that those times were accepted by the defendant v.i+hout question and paid by him from time to time, it would, I think, be impossible for the court to find now that the plaintiff was entitled to credit for additional time worked in respect of which he had failed to render a note to defendant. Plaintiff’s version is that he did not put in a note of some of these hours worked because he anticipated that he would be employed by defendant for another season. These items for additional time worked at Is 6d per hour are disallowed.

“ A claim for the use of plaintiff’s; horse by defendant on several occasions is disallowed. This claim is obviously a mere afterthought designed to meet a claim for grazing which the plaintiff knew that the defendant was going to make, and which the plaintiff regarded as unreasonable. 11 J h e plaintiff will, therefore, be entitled to judgment on the claim only for the amount admitted, namely, £lB 14s lid, with costs £2 ss, witness’ expenses (H. Morrow, W. A. Egglestone, J. H. Morrow and Leslie Morrow) to be fixed by the clerk of the court, and solicitor’s fee, £2 12s. THE COUNTER-CLAIM..

“ ° n the counter-claim, it was frankly admitted by defendant that he had charged many of these items in order to meet what he regarded as unreasonable items charged by, the plaintiff in his claim. It was also stated by defendant in his evidence

that he would not have charged plaintiff any of the items appearing in his counter-claim after the first three items if plaintiff haid been prepared to settle on the October statement. Many of these subsequent items of the 1 counter-claim were very properly abandoned by the defendant at the hearing. It is necessary, however, to deal with the remaining items of the counter-claim.

“ The first of these items represents a grindstone and stand. I believe, on the evidence, that there has been a misunderstanding in the first instance as to this item. The defendant lent it to the plaintiff and the plaintiff regarded it as a gift, and apparently took it away with him when he left. The grindstone is probably of very little value, and the plaintiff now offers to return it. 1 think it should be returned, and if it is not returned the plaintiff will be entitled to recover £1 in default.

“ The items for extra grazing form the real basis of the counter-claim, and present the only difficulty in this case. The conclusion at which I arrive upon the evidence is that in the first place the plaintiff wanted to bring down his mare and foal and that he did not know what to do with them. There is no doubt, from the evidence of Mr. Egglestone, that defendant told plaintiff to ‘ bring them along,’ and that nothing was said at that particular time as to any charge being made for their grazing. I have no doubt that defendant did not intend that plaintiff should have free grazing for these extra horses indefinitely, but there is no proof of any arrangement between the parties that this grazing was to be paid for. There is a flat contradiction on this point. If a definite arrangement had been arrived at as stated by defendant, it is difficult to see why such grazing was not deducted by defendant on the settlements that took place from time to time between the parties. It is not until some months after the disagreement and termination of the service that we find defendant making a charge for 58 weeks’ grazing up to July, 1923. There may be some merits in this claim for grazing. There is no doubt that plaintiff has had a substantial benefit from the defendant, but the difficulty is that there is lack of proof of any definite'arrangement to pay for such grazing. I might have found for the defendant for some amount on this head under an implied contract to pay something, but I am unwilling to do so because I tnink that there has been a misunderstanding in the matter. The defendant’s original invitation to bring them along might very well have been misunderstood as an offer to let them graze there for the season, and in view of these facts that defendant has made no charge when settling with plaintiff from time to time, I think it is highly probable that defendant would not have made this charge for extra grazing if it had not been for the general dispute between them. The claim will, therefore, be disallowed. il The items for rental of thfe drying shed, etc., and for rental of the house for six weeks after the season terminated are not sustained. The evidence shows that defendant consented to plaintiff’s remaining on in the house rent free for the purpose of trapping rabbits, provided that defendant’s place was first cleared of rabbits, and apparently that arrangement was substantially carried out. “ THe items mending and cleaning yards and cleaning drying shed and house are not recoverable. The evidence shows that defendant, assuming that the plaintiff was not returning to clean same, or that he was not ! intending to clean same, had"this work ! done during plaintiff’s absence. It is highly probable that this was the sort of work that plaintiff would have left till the last, and there is no reason to doubt that he would have done it.

“ The item for the price of a load of pumpkins is not established. “ The defendant will, therefore, be entitled on the counter-claim to judgment for the return of the grindstone and stand, or in case possession cannot be had then for the sum of £l, and to witness’ expenses of himself and K. McKenzie, to be fixed by the clerk of the court. The defendant is fallowed costs on the application for •change of venue, court costs Bs, solicitor 10s 6d.”