WHAKATANE CASE

Rotorua Morning Post, Volume 1, Issue 174, 16 March 1932, Page 6

WHAKATANE CASE

(From Our Own Coi-respondent) .

CLAIM FOR FAILURE TO CARRY OUT AN AGREEMENT

PLAINTIFF NON-SUITED

WHAKATANE, Tuesday. In the Whakatane Magistrate's Court, before Mr. S. L. Paterson, S.M., W. A. B. Topp, of Awakaponga, farmer, sought to recover the sum of £99 15s from Owen Phillips, of Wark- j worth, farmer, for monies due by rea- j son of Phillips' failure to carry out an agreement to work Topp's farm. Mr. R. F. Smith appeared for Topp and Mr. J. I. Dodd, of Warkworth, for Phillips. By his statement of claim Topp alleged that by agreement dated July : 11, 1927, Phillips agreed to work his farm on shares. Under such agreement Phfilips was obliged to cut the rushes, lceep the ditches cleaned and keep the fences in good repair. Defendant left the farm in June, 1931, and as a result of his failure to carry out his agreement Topp claimed the following sums: £13 for expenditure incurred in having the rushes cleared; £22 10s for repairs to fences; £18 for cleam'ng ditches; and £41 5s for monies obtained by Phillips for work done on an outside property with labour and implements belonging to Topp. Plaintiff's Evidence In evidence Topp stated that on his last return from Australia he visited the farm and found that Phillips had neglected to perform all the work required. On his pointing this out to Phillips, Phillips replied that he had no time to do the work. Under cross-examination Topp admitted that on July 24, 1931, he gave a written testimonial to Phillips, and that previously he wrote to Phillips sending him a bonus of £25 in consideration of the manner in which he had looked after the farm. When Phillips left he owed Phillips about £29, being the amount due on a fsctory bonus, and he admitted that Phillips later sued him for the amount to which he confessed judgment and later paid. He had made no complaint at all to Phillips' solicitor r'ght up to the date of payment as to any of the matters now being sued for. .He admitted giving Phillips leave once to work on the property of New Zealand Flax Investment, Limited, but denied knowing about the prev'ous work dorie by Phillips for the same company. Evidence was given by employees of Toop as to work done in clearing the ditches, repairing the fences and clearing the rushes. Mr. Alexander Allen, farmer, stated that in his opinion the. rushes fiiould be cut to make the farm e'ficient and that this should be done every two years. Unsatisfactory Witness In non-suiting plaintiff, His Worship stated that it was incumbent on the plaintiff to prove his facts clearly and coneisely. The plaintiff h id como to court alleging that the eefendant had neglected his duties in as much that he did not keep the rushes cut, did not elear the ditches or repair the fences and had done woik off the farm without authority. He considered the plaintiff's evi'once unsatisfactory, in as much as ->la:ntiff h'mself was on the farm for about seven months and could see the state of affairs. In August, 1930 he wrote a letter to defendant with a cheque for £25 as bonus for exUa work done by defendant, and on Phil1'ps leaving the farm gave him a tostimon:al. The evidence was so contradictory that he was unable. to "lace anv reliance on it. The evilence of Mr. Allen would be accepted, but this really assisted the defen-

dant. Referring to the evidence of the plaintiff's witnesses, his Worship =aid that one witness was so obviously biased that he was unable to accept his evidence and for that reason had restrained defendant's eounsel from even cross-examing him. Another witness was also unsatisfactory, and was not at all clear on his facts. Plaintiff would therefore be nonsuited with costs amounting to £13/16/6.