DAIRY FACTORY CASE.

Taranaki Daily News, 5 July 1917, Page 7

DAIRY FACTORY CASE.

QUESTION OF BONUS. SUPREME COURT JUDGiMENTIn the Supreme Court, New Plymouth, yesterday, the registrar, Mr. J. Terry, read the reserved judgment of Mr. Justice Hosting in the case of T. N. R, Free v. the 'Elthain Co-operative Dairy Company, heard 'before his Honor at New Plymouth on May 17 and 18 last, when Mr. A. 11. Jolinstnne (with him Mr. J. Morrison, Eltham) appeared for the plaintiff, and Mr. C. B. Collins (with him Mr. .T. L. Weir) for the defendant. The judgment set cut the facts of the case as disclosed toy the evidence on (both Bides and "by counsel for each of the parties.. Originally plaintiff claimed £345 7s Sd for milk supplied to the defendant Co., of which £2lO 3s l.ld was acknowledged to have been ■paid, leaving ■ a balance of 1 £135 3s 9d, but the claim Was subsequently amended in the Supreme Court, and an alternative cause of action set up. The defendant company contended that £'2lo 3s lid was the whole of the (purchase money 'payable unless plaintiff held one share for every 150 gallons of milk or 56 lb of butterfat supplied by him, and the Company paid into court the £dl 9s "2d which had . been held in suspense. The judgment, after dealing with the constitution and practice of the company and the' f&cts relating thereto, as disclosed by the evidence at the trial, proceeds: 'Die plaintiff claims that lie is entitled to the difference foethveen the values he received lor the months of August, September, Octdber, and 'November, and the actual net prices realised by the company. The difference, it will ibe seen, is very large, or about two-fifths of tie total of the net prices. The company contends that the .plaintiff is not entitled to any j>f the further payments, because he did not comply with the condition as to taking shares, and in support of this Article 8a is cited. The articles are for ibe purpose of determining the rights of shareholders per ee, and not for conferring rights on third persons. . . . Article Ba. does not

appear to inc to have any application; as I read it, it cannot apply to a new supplier till his second financial year, inasmuch as the number, of shares a supplier id to hold is determined by the amount of milk and butter-fat supplied by him during the previous financial year. The proper inference appears to me to Ibe that the company accepted, the plaintiff's milk upon the footing that it would be dealt with together with the milk of other suppliers, and that the net proceeds as far as attributable to plaintiff's miik would be .paid to him, and that the company would ibe allowed reasonable remuneration for its services. I do not consider that any usage going to the extent of the company% claim or affecting the inference I have drawn has been established. . It appears to me that a usage to obtain and appropriate the charge for -manufacturing, and in addition to keep all the subsequent payments, whatever their amount, is unreasonable, and consequently .before it can be regarded as incorporated in a contract it must be shown that the supplier, not being' a shareholder, knew of its existence. Plaintiff denies such knowledge, and I quite believe him. "For the reasons given, I hold that the plaintiff is entitled to recover in respect of his supplies the further payments made for the months of August, September, October, and November, less a reasonable remuneration for the company's trouble, which on the evidence I fix at the total of the amounts which it originally deducted, £ll its 2d. As the correctness of itlie amount claimed by the plaintiff was not gone into at the trial, it is referred to the registrar at New Plymouth to ascertain what sum, not exceeding £14(5 12s lid, is payable in respect of these payments. The registrar will certify the difference between the sum so ascertained and the £ll 9s 2d, and judgment is to be entered for the plaintiff for that amount, with costs of the action on the lowest scale, witnesses' exipSnses and disbursements. Of course, if the parties agree upon the amounts, the proceedings before the registrar iwill be merely formal.