SUPREME COURT.

Taranaki Daily News, Volume LI, Issue 77, 20 March 1908, Page 4

SUPREME COURT.

N'EW l'L\.Mt)l Tll. THURSDAY'. Before His Uonor Mr. Justice Edwards. CIVIL SESSIONS. The Sujjieme Court se=sious were continued yesterdav. DODI'XSKI v. ILKKIM.TI i.V Claim for -felling contract let' in tlie plaintiffs in February year. The loll<iwinjjr jury wa- >.\\oni: - Me&srs. O. Cook. M. *O. Buicliei - , A. ICooke, H. U Avery, T. I'aul. I!. Clemow, 1!. Newton. F. I.'. Maet'. Whittle, U. X. Uyii", l'. Wells. A. ,W. . Ballot. v was elio-eu tore-

Mr. Spell--** . Vi ..-ared lor pluiuLitis and Mr. Johnstone, with liim Mr. W. Lt. Anderson, for the defence. Mr. Spence outlined the ease lor the plaintiff. Six young men Dodiutski, Newstroaki liro*. (111, and I'otroz Bros. (■/) took a contract from Mr. Turkington, schoolmaster at Mnlioe. to fell on the Utter'o land at Kawhitiroa, near Eltham. It was supposed to he 96M acres, but it eventually turned out to be 860 acres, and the price was CI Its o'l an acre. It had been intended to ippoint a man named Coleman as overseer, but eventually Turkington's sou Charles was appointed. The men started work in February, and finished November, young Turkington approving | the work. The specification* were carried out faithfully, but tor one variation—large birches were lett standing, as instructed by the overseer. No complaint had been made by the own-n' until 600 acres had been felled, and the matter complained of had been rectifM. Evidence would be given that it- was to the owner's interest to leave the big birehee standing. They felled the birches up to two feet in diameter. Defendant, upon completion of the work, refused to pay, on the grounds that the specification had not been adhered to. The land was very rough and full ol precipitous gorges. T. Dodunski, the plaintiff, gave evidence on the lines of counsel's opening, alleging that the variation of the conditions were made upon the instructions of Charles Turkington. In May the owner said his son had reported they were making an excellent job. lh*> birches were mentioned in that conand Turkington said, If Charlie is satisfied, 1 am." Defendant ako told him he need not go into the dangerous gullies. first vfeit to the land was at the beginning of September. On oth September he received a letter from defendant eomplaining'thai a few trees had not felled. These had been left merely to keep the track open and to prevent the waterliole. Young Turkington removed these himself in about an hour's work. Just before the completion of the work the defendant wrote complaining of breach of the conditions, and cancelling tbe contract unless th 9 work was properly carried out. Young Turkington. explaining the letter. fia:d his father was in a great temper, tor he believed they were ■slumming' the bueh. The overseer pointed out where a few trees needed to be felled, and this wae attended to. lie said then that he was fully satisfied. On the day ot finishing the work lie again expressed his satisfaction, except with regard to a little gully. They soon attended » that. Defendant refused to pay because the job had not been done as sjiecifieil. WitnesS said he had done it as ordered bv the overseer. Charles Turkington was called in and asked if he lwd passed the work. He said he didn't know whether he had or not. Turkington said later that he couldn't pay just then, as be hadn't his chetjue-booK. Cross-examined by Mr. Anderson—loung Turkington was employed as camp cook for three weeks or so at first. Never received a letter from dfcfendan. to the effect that Turkinuton won'd not be bound by his son's actions unless confirmed in writing by him (defendant). He could recollect 110 conversation with F. Bulmer concerning C. Turkington's authority. Defendant had, be- , fore the contract was started, promised

plaintiff personally a bonus of C2O if the work were wen done. He could not tell how much it would cost to fell the birche*. now. He had never understood that tie defendant intended personally to pass the work. Never threatened to throw young Turkington into the guilv if he did nor pass the bush, and llevi) offered him any sum of money to in duce him to pais it. Pant Newstroski, one of the partners

in the contract, gave i-urolxirative evidence, emphasising that defendant had agreed to abide by bis son's passing the job. .Similar evidence «a= given by J. Potroz and B. -\ew-tro=ki.

G. A. Ma reliant, farmer of 35 years' experience in bush country, and chairman oi the Stratford Counlv Council,

gave evidence of the rugged nature 0: the country and of the excellence of tho work, which was done better than had been contracted for. The leaving of tli' birches was beneficial to the owner, and if the overseer ordered that they should be left standing he did a very wiie tiling. The men bad made a good jo j. Had the work been thus done for lii-n, on the some specification, he would have passed the work and paid the men gladly. It would not have been reasonably practicable for the men to go back over the contract and fell these hirchn. It would be practicable since the burn, but an absolute detriment to the lanJ.

Bradshaw Dive, farmer of 18 years'

experience, gave evidence of having inspected the land. There were no indention* of "slumming," and he had formeu the impression that the work had been exceptionally well done. The birehes were better left standing. It would have cost the party perhaps £25 more to have felled those birches. To Jlr. Anderson—He had not had experience in birch country, nor did hj» wajit any, for birch country was alv»nvs poor. J. T. Quill, farmer, and chairman of the Elthaiu County Council, gave »videnoe on the same lines. A good job liad been made, and he would have paid out on it. Turkinglon led the party upon the day of his inspection. John Christoffel, farmer in Elthar.i district, with 24 or 25 years' experience, inspected tUe land in January, b«. for« the burn. He considered the under scrubbing must have been done exceptionally well. The faults pointed oat to him by young Tiukington were too trivi,i| to take much notice of. He pointed to some uncut supplejacks at the bade of the section. There were J7 of them in all—very trivial. - His "pinion concerning the birch trees was the name as those of the three previous witnesses. In tlie whole 8(H 1 acres of laud it would lv. dilticult to find half an acre of liat land. S. W. King, farmer in the ElLliam district, said he had inspected the property in January at the defendant's re<|ue*t, lieing -iioun over by young Turlcingtoii. He liad reported to defendant's solicitor that L'-il would have compensated for the defects pointed out. With one or two minor exceptions he would ' have passed (he work, and he wou'd . iiave passed it before the men went off the job. llis evidence regarding birch's coin- idod with that of prerious wit:-ne->c-. James Sexton, ot St lat ford. »aid he had introduced defendant lo the plaiutifls. and '.vitne<«'d th- -i«niug ol' the ciiutia-i. Tiirkington had intended to appoint (.'<demai, a- ~vim-cm,-, but -uh-e. i|iicn;ly -,iid I |». r ! j,. M . t n act, ii.r Coleman had tendered :or the work himself. and it wr.uln n..t have been a fair thill" to pla.-e the un-inw-ful ten. derer over the .sini-e-.-i'ul one. a.- naturally he would lie jealous. giving ri".' to

bad fooling. Often saw Turkiragtou, who frequently remarked that he was well pleased with the meu and the work, buying they were "a tfoud, honest gang.' About llw middle of October defendant said he hud not-ilied the men to diicoutinue work, as they were not acting tip to specification, for they were leaving trees along the ridge*. In November defendant complained that- the men had left about M aeres «»f u.wbrserubbing. About itfrd November young TurkiiigUm told him that tln* defendant was going to pay the men on Tiwsibir, and that the luisli was all riglit. On the following Saturday Turkingtou lo'd , him and tuiotlier thHt there was trouble 1 alx)ut the bu*l». Witness wa» aud said, *'Why, Charlie told me iaat Saturday that von were going to pay. Defendant then warned Charliv to h»» J «l hia tongue. Charlie said. "I did say father wa*> going to pay, Inn it would be through a lawyer.' 1 To Mr. Andorson —lLad never warned defendant that he would have to i.'G careful in dealing with J)odun*ki aud 'his party. To Mr. Spenc-e- The<e men hail iTr-tv-class diameters as men and as l>u-hm"ii. j being among the foremost axemen m New Zealand. .lames Coleman, fanner, residing ni Omona, gave evidence that, he had been askud by defendant to MtpervUe the work, but lie declined when he tound Charlie Turktngion was to a*Mst him. Defendant then decided to make Charlie the overseer, and told the witness so. On a subsequent Turkingtoi said to witness that he \*as satisfied with the work, and Iw supposed Charlie was looking after the men all rigid. To Mr. Johnstone—Never reported i*> Turkington or to anyone eUe that tii*> work was being ''slummed." lie remembered drawing Charlie's attention <o some trees that were left. At 5.15 the. Court adjourned till o'clock this morning.