MARTON COURT.

Rangitikei Advocate and Manawatu Argus, Volume XXXIII, Issue 9129, 25 April 1908, Page 8

MARTON COURT.

CLAIMS UNDER AN OLD CONTRACT. The question of the _ right_ of persons entitled to participate in a balance of £ll7 18s ( .)d cine by tho estate of the late John Baggo on a contract let in 1904 for the formation, cnlverting and metalling of roads in the Marton Junction township, came for decision before Mr Stanford, S.M., at Marton yesterday. _ . The contract had been made by the well-known contractor, Ben Poole, with the late John Bagge, whose executors (Mr G. P. Bishop and Mrs A. M. Bagge) paid into Court the £ll7 18s 9d to abide the decision of the Court as to the persons among whom it should be distributed/. Mr Miles appeared for E. Dommett, who had obtained an interlocutory attachment order for £54 Os lOd on the moneys in the hands of the late Mr Bagge’s executors. Mr Collins appeared for Mr John Jones of Wanganui who had done the concrete cnlvcrting in connection witli the contract and whose claim amounted to £IOG Is Bd. Mr Lyon appeared for 11 workmen of Ben Poole, tbo contractor, whose claims totalled £127 10s Bd. Mr Bishop briefly stated the facts of the case which were to the effect that the late John Bagge entered into an agreement in May 1903, with McDonald, Wilson & Co. to sell his property at Marton Junction. The contract for roads through these sections was let to Ben Poole and after receiving three progress payments, the work was 'abandoned by the contractor and it was found he had not paid wages to his workmen. He (Mr Bishop) had-paid wages as the orders came when he had money in hand. After the completion of the contract by Mr John Bagge there was a surplus balance of £ll7 18s 9d, which was insufficient to meet all claims. Ben Poole, contractor, deposed that the 11 workmen named in the summons, were employed by him and he gave orders in their favour for the amounts claimed. The amounts were made up from his foreman’s timebook, his own books having been swept away by a flood. . These men all worked for him up till the time the contract was terminated. He put in a separate price for the culverts and the Engineer (Mr Sicely) considered this gwork could be done cheaper. He got John Jones to do the concreto work and arranged that”the money should come out of the contract. Although this work was done at a lower price he did not receive any benefit. Jones worked under the Engineer’s instructions. He (witness) gave him Jan order on Mr Bishop, who was acting for the late John Bagge, for £lO6 Is, to avoid complications. He was evidently an independent contractor.

His Worship said the order made Jones a sab-contractor to Poole. John Jones said he gave the Engineer an estimate of the work who accepted the price. He said he woald not look to Ben Poole for his money and thereupon the Engineer promised that he would see him paid, as the progress payments were made. He had completed his work, hut had never received any money. He had applied to Mr Bishop several times, but had never given any notice under the Workmen’s Wages Act, etc. The men who worked for him had been paid and he had also paid for material used. Before legal argument was taken. His Worship intimated he had made up his mind up to a certain point. It was quite clear how the money should be distributed. For instance, Whiteman, Simpson and Maughan had got judgment in Court and they should be paid in full—£3l 3s 9d. Then came a group of eight workmen whose wages should be *paid proportionately and Mr Bishop would be allowed £2 2s costs. Now came the question as to what position John Jones occupied. He had got no notice of' attachment order and it was arguable whether he should come in as a workman or had got to stand down. The matter then resolved Jitseif into a contest between the claimants represented by the various solicitors appearing. After hearing legal argument the S.M. held that three of the workmen were entitled to be paid their claims (amounting to £3l 4s 3d) in full and the remaining eight workmen to divide amongst themselves pro rata the whole of the available balance of £9O 6s od, less the solicitors’ costs, £4 4s in all allowed out of the fund to the solicitors for the executors and the workmen.

His Worship said he was satisfied that John Jones could not come in the distribution. He had not taken any definite steps to get an attachment. He had only got Ben Poole’s order. He had no claim upon the executors in the estate of John Bagge. Leave to appeal was granted on the application of Mr Miles and security was fixed at £lO 10s on law points an i £25 on matters of fact.