SHAREMILKING CONTRACT.

Putaruru Press, Volume III, Issue 114, 24 December 1925, Page 6

SHAREMILKING CONTRACT.

A HINUERA CASE. A lengthy case was heard in the Matamata S.M. Court on Thursday, before Mr. J. H. Salmon, S.M., arising out of a dispute between William J. McLennan (plaintiff), farmer, Hinuera, and Samuel Joseph Robinson, factory manager, Auckland. In the statement of claim it was set out that the plaintiff duly performed the duties (milking on shares) until the termination by him of the agreement at May 31, 1925. That prior to signing the contract, defendant stated to plaintiff that his herd of cows was considerably above the average in butter-fat production; that they averaged 3001 b per cow during 1923-24. The plaintiff relied on these statements. That the cows did not, during the period June, 1924, to May 31, 1925, produce considerably more than the average herd, nor did they average 3001 b butter-fat. That the average yield was 236.51 b per cow. That in consequence of the breach of warranty the plaintiff suffered loss to the extent that the produce of each* cow of the herd of 46 fell short of 3001 b. That during December, 1924, defendant received a bonus of 2d in the £, but had not paid plaintiff his share. The plaintiff, under various heads, claimed £167 13s 6d. Defendant counter-claimed £52 for alleged failure to keep drains in repair and do other farm work. Mr. J. Buchanan appeared for the plaintiff, and Mr. G. G. 801 l for defendant.

Certain adjustments and admissions were made in regard to the amounts prior to the evidence being taken. Mr. Buchanan said the claim arose out of the contract with respect to the third season, 1924-25. The production of the herd for 1923-24, a full year, was 86241bs butter-fat; and for 192425, a period of 11 months, 108721 b. Mr. Bell questioned the construction Mr. Buchanan was putting on the production periods, but admitted the average figure of 236.51 b. Mr. Buchanan said that Robinson had assured McLennan that the cows had done over 3001bs, and on this ground the latter had entered into the agreement. The plaintiff asked for damages to the extent of the butterfat not produced, below the 3001bs represented. This deficiency was reckoned at Is 6d per lb. The cows, it was contended, had never done 3001bs and Robinson knew it. There was a claim for breach of Warranty, and also misrepresentation. His side had, Mr. Buchanan stated, to prove intent of deception on the part of Robinsom The plaintiff claimed the gross amount of the bonus, without the deduction of amounts for calls on shares. Plaintiff denied all liability in regard to the counter-claim. 1 C. Corry, farmer, Hinuera, said his farm adjoined Robinson’s. He thought that, in the season prior to the contract, Robinson was milking about 40

cows. Mr. Buchanan explained to witness that there was a counter-claim in respect to a swamp, which started in his (Corry’s) place, and which it was alleged plaintiff bad not attended to the main drain of this, damaging the sole of grass. Witness said there appeared to be a subsidence in the general contour of the country thereabouts. The water did not lie there to any great extent ; it would gather, but it dispersed. He did not notice that his drain was backed up with water from Robinson’s, | except after a heavy downfall, when the main drain would not take the water away. To Mr. Bell: Witness could not say definitely how many cows Robinson milked. He did not know whether there were any empty cows among the herd, or young heifers. He kept his drain well cleaned out. He admitted that if the drain were blocked it would be inclined to inundate the swamp. To Mr. Buchanan: He did not consciously differentiate between the cows and note whether there were heifers among them. Henry Robert Barnes, farmer, Hihuera, said he made out the number \of cows to be forty. He had had his drain deepened and widened. A take of grass could be got on the swamp, but it died away again; the swamp was covered in weeds and grass. Mr. Robinscn had also cleaned out his drain. There was a large watershed Miere. Grass sown on swamp lands later than March would be too late to do any good. He had not touched his drains for a year, but they were still in good order. He could see from his place the rushes in Robinson’s. The lands immediately adjoining* the drains were not fit to be grassed. To Mr. Bell: Witness had counted the cow& twice, and made them 40 on <=»arh occasion. He coukl not swear that there were forty milking cows. His drain was 18 inches deeper than Robinson’s.

j Mr. Bell: Did you approach Mr. [ Robinson about his drain?—No. Mi'. Beil: Why?—Because it was no g-ood. Mr. Robinson was a man who would take everything- and give nothing. Witness admitted that Mr. Robinson’s method of swamp harrowingwas better than his (witness’) ploughing as treatment for that class of swamp country. To Mr. Buchanaij: The herd appeared to be all milking- cows. Mr. Robinson cleaned his drain out at the same time as witness* deepened his. It would be risky to plough swamp having timber in it. It was throwing money away to cultivate a swamp before it was drained. He had thrown away a iot of money on his swamp. Edward Barnes, farmer, also a neighbour of defendant’s, said he .counted the cows and found there were 40. Hq corroborated his father’s (the previous witness’) evidence. To Mr. Bell: Witness made the count in November (in the season prior to plaintiff taking over the , herd). He saw the cows from the I boundary fence and the road. ] Andrew Joseph Orr stated that he leased- Mr. Robinson’s farm and herd. He grazed 34 cows, including 6 of his own. Later Robinson sent two pedigrees down from Auckland. Wit- j ness went through the list of cows, ' and there was some amusement in the court when Bridget, Maggie, White Belly, Stalky, Magpie, Susie and a lot of other rare and picturesque names were announced. One cow was called Cinders, as though the owner wished her further. Witness then gave the New Zealand Co-op. Dairy Co., Ltd., figures of butter-fat, in lbs: August 169, September 439, October 841, November 1050, December 1087, January 900, February 687, April 564; for May 3001bs had! been allowed, as he had lost the returns, and March about 6001bs. The total was 66371bs for 42 cows, giving an average of about 1571bs per cow. The witness said the swamp was always wet in one part, one part moderately dry, another section under water all the time, next to Mr. Barnes’ boundary. The main drain had very little effect on either the upper or the lower end of the swamp. . To Mr. Bell: He had 36 cows alto-j gether of Robinson’s, and- six of liis own. Some cf the cows would be young, but others were old. One cow died of old age while he was there." He would not say thßt the best grasses had been used. There was an absence of grass in the old watercourse, which carried rushes of a kind only found where water was found frequently; also, there was raupo. The property wanted- a further drain connected up with the main drain, and the latter deepened, to prevent flooding. The main drain was on the wrong side. The drain would cope with a normal rain, but not with a downpour. The big- drain was in good order, but the rushes were still grow- | ing; clearing drains would not kill rushes.

To Mr. Bell: No. 1 area was in the state one would expect after a swamp had been down for three, years, the grass being- about run out. No. 2 area had no grass, and he would say nothing- had been sown thefe. After examining a list giving- the mixtures of grasses sown on the | swamp, witness said the mixture was an ordinary meadow one, and not suitable for a swamp. The mixture lacked timothy. If young- grass were put in in January of 1924, and the main drain had been blocked the grass would not have a chance. * To Mr. Buchanan : The subsidiary drains being- lower than the main drain, when the latter was flooded it j would also flood the former. Stanley Wright, occupying- a farm opposite Robinson’s, had seen McGuire, who was working for Robinson, in trouble on the swamp, with the cart upset. He went to McGuire’s assistance, across the but did not g-et wet feet, though it was not fit for cricket or bowls. He did not see any grass on the swamp. Wilfred Cooke, farm worker, Wa.haroa, said he applied to Mr. Robinson for the sharemilking. He was given to understand that the cows should do 300 lbs of butter-fat. Mrs. Robinson told him that. To Mr. Bell: Mrs. Robinson did not go into figures, or make any definite representations in regard to the production, but said that from the feed they would get the cows should produce about 3001bs. To Mr. ‘Buchanan: Witness would have thought there was something wrong if the cows ha/I not come to "within 50 or 60!bs of 3001bs each. Foster John Haw, neighbour of Robinson’s, said the herd looked like not less than forty cows. He had been at the shed occasionally while milking was on. He certainly would not sow 1 the swamp in grass between March I and July, not in ordinary grass; it would be throwing the seed away. He had never noticed other than milking 1 cows among the herd.

To Mr. Bell: Witness had never actually counted the herd. Mrs. McLennan, wife of plaintiff, denied having gone to Mr. Robins'on asking- him to give her husband the herd to milk. She heard Mr. Robinson say that the herd was a 3001bs one. Both Mr. and Mrs. Robinson said they were milking 36 cows in the previous season. Her husband had had no difficulty hr getting his wages from his previous employer. Witness denied having discussed the ‘ salient points of the case with her husband. To Mr. Buchanan: Witness was interested in the returns, and heard Mr. Robinson, after going through figures with her husband, say he was wrong in regard to the average per cow. William Joseph McLennan, plaintiff, said defendant said there,would be 49 to 50 cows to milk. Defendant distinctly said the herd average was 3001bs. He went to the farm and saw Mrs. Robinson, who said the herd average would be from 288 to 2891bs butter-fat. Both Mr. and Mrs. Robinson said that the herd the previous season was 36 cows. The payment on a share basis of two-fifths was agreed upon at the McKelvie street factory. He asked Mr. Robinson if he would guarantee in writing the 3001bs, and he replied that it was an estimate. He was to get a bonus of £SO if he raised the herd from 3001bs to 3501b5. Mr. Robinson said he would reduce the amount to 3301bs to make it easier for plaintiff “ to pick up that £50.” Defendant worked out the production on a 42 cow herd, 3001bs production, Is 2d per lb butter-fat, 20 calves, £2 each, and £2O worth of pigs, less £IOO for board for plaintiff and wife, and £26 expenses for the running- of the shed. The result left witness £4 clear per week. This satisfied plaintiff, and he signed the agreement on that basis. He would not have signed up otherwise, if defendant had not agreed to guarantee 3001bs. Defendant said his herd was a good one, a bit above the average, and that in the previous year the cows did SOOlbs. The cows, while plaintiff had them, did not average the 3001bs fat. He milked 47 cows, one being defective. He claimed two-fifths as a bonus. The average was about 2561b5, and he claimed the difference between, that 3001bs. In December-January,' 1924- | 25, a bonus was paid for May, June and July production, and he claimed his share of that bonus. Asked how he knew the bonus was paid, plaintiff said he saw it in the paper! His Worship: But you must not take in all you see in the paper. (Laughter). Both counsel, however, acquiesced in the correctness of the statement that in the case under review the

j bonus had been paid as published ill ! the papers. I The amounts of bonuses were stated j at £llß 15s 9d, and £146 12s 2d. (, He was, plaintiff said, to get half J share of proceeds of all pigs sold. He ■ was also entitled to payment for two j calves reared to four months. DeJ fendant had these two calves killed, i Robinson had the skins of both.He had. j been refused payment for the calves, j Nine young heifers (calving) were | brought into the herd. One cow was j sent from Otahuhu. One cow was a j two-teater, a pedigree. Four pedi—- ! grees were ■ milked by hand. He J had asked defendant to produce i his previous season’s returns. Defendant refused. Defendant had previously told him the returns for. November were 11751bs to 11701bs in December, and 10701bs in January. Ha worked that out on a basis of 36 cows. He took his totals for Noveni—ber and December returns, arid found that he was 31bs per cow ahead of Mr. Robinson’s amount over those two* months. Defendant said: “You will win your £50.” Mr. Buchanan: We are not claiming that £SO, because we did not reach the 3301b5. He had told defendant that his herd was not coming up to representations, but defendant refused to show his returns. Regarding - the term “farm premises” he was told that it referred to the cowshed and yard and outbuilding-s that he had to work in He did not understand" by the agreement that he had to deepen or clean the main drain or dig rushes. He had never been asked todo so. There was water lying down the centre of the swamp; the drain became flooded, and the water overflowed across to the natural watercourse. Water and the condition of the swamp through lack of" drainage was the cause of the failureof the grass. ‘He put in a new drain,, above what he was required to do-. He left the farm in better condition, than he found it; he left more hay; also 11 acres of turnips, whereas Robinson left him six. Cross-examined by Mr. Bell, plaintiff said the 3001bs was mentioned thefirst time he spoke to Mr. Robinson, and several times afterwards. He had asked in the presence of the solicitors that the guarantee of 3001ba be put in the agreement. Mr. Bell read a report of the discussion in the solicitor’s office in Auckland, several of the statementstherein, plaintiff said, were untrue. The report stated defendant said thebasis for. the bonus for raising thestandard of the herd was that the herd could not, according to defendant, be ■ less than 2801bs.

' The plaintiff went on as the solicitor's report of what took place in the office was read, to characterise further statements as false, agreeing that they were “ a tissue of falsehoods.” Mr. Bell commented that it was peculiar that the guarantee of 3001bs alleged by plaintiff was not put in the agreement. That 3001bs was the whole basis of the argument. Plaintiff said it was not put in because he posted the agreement away immediately. He denied that Mrs. Robinson had said she could not give the figures for the previous season. Mrs. Robinson had stated 2SBlbs to "2891b5. Resuming after tea, Mr. Bell admitted £47 10s 4d to be due as plaintiff’s share of the bonus. He gave figures to show that, whereas plaintiff was told he could earn at the rate of £4 a week, he had actually earned at the rate of £5 a week nett. Plaintiff did not agree with the reckoning. Mr. Bell replied that did not wish to argue about them, but merely to show the court the position. Defendant had 36 cows to come in, but two slipped their calves and two came in empty, leaving 32 sound cows. Plaintiff said defendant told him he was actually milking 36 cows. Mr. Bell asked plaintiff if he had ever before known of an agreement whereby the sharemilker got half the ■value of the pigs. Plaintiff said he had not done sharemilking before. Mr. Bell said it was usual for pigs to be valued, and the milker to obtain a share of the profits. With an agreement such as plaintiff Had, if there had been 50 pigs plaintiff would have been entitled to half the value of all pigs sold, even if he walked off

the farm a fortnight after starting. It was the most extraordinary agree - ment.-he had ever known. His Worship: The agreement is defective inasmuch as it is not stated who shall have authority to sell the pigs. Plaintiff denied defendant’s statement that one calf was destroyed because it was sucking two cows. He could not give an explanation as to how he arrived at the item of £lO for general damages. To Mr. Buchanan, in re-examina-tion, plaintiff stated that of 50 cows nine were heifers. His Worship asked plaintiff what the average yield per cow in New Zealand was. Plaintiff said it was about ISOlbs. The highest average was 6001bs, obtained in Taranaki. To Mr. Bell, plaintiff said that the 6001bs was for a single cow, and not a herd. Several herds in the district, however, averaged 3001bs. Resuming- on Friday morning, Mr. Bell submitted that there was no. evijdence showing that there was a definite guarantee of 3001 b. On the contrary, tliei- j was evidence to show that the reference to 3001 b was only vague. Defendant had simply mpde a rough estimate and stated that he thought that the average would be not less than 2801bs. Over and above his living, plaintiff had netted over £4 a week. Samuel Joseph Robinson, defendant in the case, factory manager, Auckland, owner of a farm at Hinuera, said he had advertised his place to let for three or five years, or to let to sharemilker. Mrs. McLennan called on him, suggesting that her husband: should take the herd on shares. Defendant said he wanted to lease the farm. However, McLennan called again, and witness agreed to give him the milking on shares. Witness could not possibly have told plaintiff that the herd averaged 3001 b, for he had no figures then to go on. The matter

of how many cows witness had milked was not mentioned, but what was mentioned was the number of cows plaintiff was to milk. Plaintiff pressed him to give an estimate of his herd production, in order to have something on which to base the bonus to plaintiff for an increase. Witness then said the production could not have been less than 2801 b. He told plaintiff not to. sign up until he had seen the herd and was satisfied. He had 32 cows, two out of the original 36 having slipped and two empty. There were also dry heifers running with the herd. In regard to the calves, he told plaintiff to destroy one calf, a fortnight after it was dropped, because it was sucking two cows, but plaintiff kept the calf, saying that he wanted to sell it; the other calf he ordered to be destroyed was a twin calf. He had had trouble with plaintiff and told him to keep the place clean or get off. He agreed to give a bonus if the cows did batter than in the previous year. He had cleaned the drains and sown some grass seed, getting a good take. He certainly expected plaintiff to keep the drain clean. The swamp was a very good one, but if the drains were blocked the water would not get away and the rushes would come through. The neighbours were cleaning out their drains, and they had put it to him that he would have to clean his out; he then told plaintiff that it was his (plaintiff’s) business to clean the drain, but as plaintiff was too busy he (witness) had the main drain cleaned out, after telling plaintiff the cost, and that he expected him to pay for the work. The subsidiary drains had not been cleaned. He put, roughly, 411 b of seed to the acre, and he never put less than 2s cwt of super to the acre. He denied having received the bonus the plaintiff alleged he had got from the Dairy Co. For ten days plaintiff left Mrs. McLennan to look after three machines and milk 46 cows. Would any practical farmer think that was a fair thing ? Mr. Buchanan: Yes. Witness made an expression of uncomplimentary surprise. Witness said he had several cows giving up to 5001 b. If Mr. Orr had cows that were no good, it was not to say that his (witness’) cows were on a similar level. “ Skim,” “ Mousey,” “ Susie,” “ Ginger,” and several others were again enumerated, and Mr. Buchanan said he would not ask for any more, as those mentioned in order had been correct. Witness volunteered further details. His Worship: Don’t tell him anything that he does not ask you. He asks quite enough. (Laughter). Defendant den-'l having trouble with his men,‘ ar 1 appealed to the Bench for protect: - : against what he considered were unfair- inferences. His Worship again intimated that he wanted relevant matter only, and objected further to Mr. Buchanan (in his opinion) wasting the time of the court.

Mrs. Robinson, wife of defendant, gave corroborative evidence. Three cows came in in November, and one on January 6, so that the 32 cows of the herd were not milked for the full season. Cross-examined, witness denied saying the herd averaged 3001 b. In giving judgment, His Worship said, inter alia:— “ Many of the points in dispute in this case turn to a great exent upon the construction of a written agreement. I am bound to say at the outset that that agreement is badly drawn, and defective in some of the clauses. I need only refer to such clauses as the duties of the sharemilker : Clauses 3 (a) (b) and (c), the sale of pigs, .Clause 7 and the remuneration of the sharemilker: clause 11 (a) (e) and (d). “ I propose to .deal first with the counter-claim, because it is clear that it cannot stand. It may be that this eounter-etlaim is launched, as is usual in these cases, to meet what is regarded as an unreasonable claim. “ The counter-claim co'uld only sucsucceed if the duty to keep this main drain cleaned out was covered by clause 3 (c). The defendant relies upon the words ‘ and generally to keep the said farm premises in at least as good a state of order and repair,” etc. In construing this clause, however, it must be read in conjunction with the other clauses which prescribe the duties of the sharemilker, namely 3 (a) and (b) and (4). Now clause 3 (b) refers to keeping- certainspecific drains clean. Clause 3 (c) refers to keeping all fences gates and rails in good order and repair. “ If it was intended that the sharemilker should keep all drains on the property cleaned it would- have been easy to have said so, and there would have been no occasion to specify these other drains. It may be an instance of a defective clause, mut I cannot read into these clauses a duty to keep this main drain cleaned out, or even the subsidiary drains, or a duty to dig out the rushes. “ Even if I had been able to -put that construction on clause 3 (c) the evidence of all these neighbouring- farm-

ers, and particularly that of Mr. Barnes, shows that the sharemilker could not be held responsible for the condition of this swamp portion. I would be bound to find that that main drain was not deep or wide enough for its purpose, and that the failure of the sharemilker to keep it cleaned out was not the cause of this swamp portion going back. Judgment on the counter-claim must be for McLennan. “ Coming to the claim itself, I think that much of it cannot stand. It is in many respects unreasonable. “ The first claim is for breach of warranty. The plaintiff relies upon an alleged representation that the returns for the season 1923-24 were 3001 b average. “ The plaintiff says that this was a representation inducing the contract, and that he suffered loss and damage because the herd turned out to be of lower production, or only an average herd; as a matter of fact, it was above the average. . “ It is impossible for me to find that this representation was ever made in the" sense relied upon by the plaintiff. There is no doubt from Mr. Lee’s evidence that in the interview in his office Robinson was unable to give the returns for the previous season. At that time the parties were endeavouring to arrange a basis upon which plaintiff 'could earn a bonus by raising the average returuns by 501 b. Robinson undoubtedly estimated the previous season’s average at 2801 b. Mr. Lee seems to have contemplated putting in 2801 b; there is no doubt that 2801 b was mentioned in the discussion. Ultimately, according to Lee, he himself suggested putting it down at 3001 b outside limit. Plaintiff flatly contradicts all the important parts of Lee’s evidence. “The plaintiff has, I think, endeavoured to twist this 3001 b basis—which by the way was an approximate basis—into a guarantee inducing the contract. This is absurd. The plaintiff left a job at £3 15s a week, with free house milk and firing. There is no doubt on the figures that Robinson’s job was an infinitely better one for the plaintiff, though it may not have turned out so good as 'he anticipated. This portion of the claim must fail. “ The next portion of the claim, paragraph 10 (a trivial sum) must also fail. There is no evidence to support it. “ xhe next portion of the claim, paragraph 11, is for two-fifths of bomTs. I cannot understand this being defended. (Lawrence v. Handley. Genii 11 v. Magill.) Construction of clause 11 (d). Plaintiff entitled to recover two-fifths of gross bonuses, £SB 12s lOd. “ The next claim, May cheque, par- ■ agraph 12, admitted, £4 12s 3d is due to plaintiff. “The next claim, paragraph 13, proceeds of pigs, clause 7 is defective. Who is to have the right to say. what pigs are to be sold or “when? “ Plaintiff has received his share of all pigs sold. | “ There is really no hardship on plaintiff, because the defective clause has- worked equally against Robinson. “ Next item, paragraph 14, calves; clause 6, entitled to rear 25 heifers; reason why these two not reared. I accept Robinson’s evidence as to reasons whv he ordered their destruction. It is ridiculous to suppose that he would have done so to his own loss if their destruction had; not been neeessarv I cannot construe the agreement as giving the sharemilker the absolute right to rear 25 heifer calves of any sort, however undesirable. “ Next claim, general damages. “ There was no breach of agree-? ment bv Robinson’s genuine dispute as to clause 11 (d), bonus payment. There can be no damage unless there is a breach.” Judgment was given for plaintiff for two-fifths gross bonuses £SB 12s lOd, for May cheque £4 12s 3d, less electric power £4 2s. and £5J7s 6d, £9 9s 7d; total for plaintiff, £53 15s 6d; costs on Auckland evidence, £5 5s 6d and £7 0s 6d; costs on claim, solicitor on claim, witness on both, £l2 Is. During the course of the hearingseveral references were made to the

defectiveness of the sharemilking agreement drawn up by a city legal firm, and when the plaintiff’s claim for a full share of the bonus—including share capital deductions—was being dealt with the magistrate stated that he could not understand why the claim under this heading was being contested. Mr. Bell pointed out in explanation that while he personally was aware of His Worship’s previous decisions on this point his instructions from his principals in Auckland were to contest this item, and he was carrying out these instructions, although he felt he could not expect to succeed on this point. With regard to His Worship’s comment on this counter-claim, Mr. Bell intimated to the Bench that the Court should bear in mind that Robinson was on his defence ; that although the defendant may have considered he had perfectly good grounds for ! bringing a counter-claim, the probabilities were that if the plaintiff had not brought a claim for a ridiculous and absurdly-large amount the defendant would not have raised a counter-claim. It appears that the nett result of the action is that out of a claim of £l7l 7s 5d the plaintiff recovered £53 15s 6d, of which £42 13s Id was admitted by the defence at the commencement of the proceedings, and the defendant failed in his counter--1 claim against the plaintiff, so that the plaintiff recovered £ll 2s 5d more than was admitted by the defence, plus costs, Court fees and witnesses’ expenses.