SHAREMILKERS' RESPONSIBILITY.

Taranaki Daily News, 4 September 1918, Page 7

SHAREMILKERS' RESPONSIBILITY.

FOR LOSS OF CATTLE. I •JUDGMENT BY THE CHIEF JUSTICE. Judgment lias been given by his Honor the Chief Justice in the appeal ease, heard at the last session of the Supreme Court at New Plymouth, by Eliza E. Muggeridge and Benjamin Muggeridge, of "Manutalii. farmers' (appellants), and Jesse Tapp and Edward |C. Tapp, of Kaupokonui (respondents), against the decision of Mr W. R. Haselden, S.M., at Hawera. Mr A. 11. Johnstone (with him Mr L, Taylor. Hawcra) represented appellants and Mr. P. O'Dea appeared for respondents. His Honor states: The decision appealed from is that of the counter-claim in the action. The defendants, now the appellants, counter-claimed for £llO 10s 4d, representing, inter alia, the value of seven cows delivered to the plaintiff. There are also claimed several other things which were delivered but not redelivered. The main contest, however, is regarding the seven cows. The relationship between the deceased (Alfred Muggeridge), of whose estate the appellants were the executors and trustees, and the respondent .was that of bailor and bailees. The former gave the latter several cattle which they were to tend and milk; in 1017 the number of these cattle was 104; the bailees were to have two-fifths of the milk money. On July 2, 1917, at the termination' of the 'bailment, there were '97 head of cattle remaining, and the question is;. What became of the other seven? In my •opinion it rests with the bailees to show where these cattle are. There were accounts in existence between the parties, but at the settlement the matter of "cows and pigs" was "left open." . The sole question relates, therefore, to the cows; the claim for the pigs seems to ■have been abandoned. The Magistrate found these special facts: (I) That the gorge is a dangerous place for cattle, raising the strong presumption that cattle were lost therein,"leaving no trace of their remains. (2) That during three previous years of Tapp's employment, cattle had been lost, and the owner accepted loss without calling for specific account of loss. (3) That Muggeridge waived demand for the seven cows and accepted the short delivery. (4) That Black's evidence as to Tapp's disposing of cows was unreliable. (ii) That there was no reliable evidence of negligence on the part of Tapps. In my opinion, his Honor continues, the third and fifth finds are not warranted by the evidence. The-document, exhibit 3, signed by the solicitors to the parties, disposes of the third finding, for it says: "It is admitted that in June 1917, Tapp and his son (Tapp not suing as guardian or next friend for his son) sued A. Muggeridge for '£o3 4s, made up of £O3 for milk moneys and £.lO 4s for work done by Tapp. This being after Tapp had given an order in favor of his son for the milk monies, Mr Muggeridge counter-claimed for this £(!". The claim and counter-claim were settled for £ll, which was paid by Mr Muggeridge, the matter of the cows and pigs being left open. That immediately thereafter Mr Powell gave proper notice calling upon Tapp and his son to hand over the beasts. This was some time before the letter of , September, 1017. written b(- Mr Musgeridge to Mr P. O'Dea." As to the fifth finding, (lie question is one of inference from conduct. It is true that the gorso which runs through the farm is a dangerous place for cattle, but if they had died there the carcases would have been found. The evidence is that in former years one dead beast was found and the hide given to the bailor. In dealing with this point in his judgment, the learned Magistrate says: "The clanger of tiie gorge would not of itself be sufficient to excuse the plaintiffs from accounting for the loss of cattle." The fact is indisputable that not until delivery, on July 2, was ">" bailor informed that any of the cattle were missing, and then no explanation was forthcoming. According to ■Min evidence of Jesse Tapp, he knew of the loss of the cattle in April -and omitted to inform the bailor. The learned Magistrate has very properly said that the danger of the gorge would not of itself be sufficient to excuse the plaintiffs from accounting for the loss of the cattle, and lie apparently bases his .judgment on acceptance fli short delivery by the deceased. He says: " but it seems to me that the testator knowing of the danger accepted the plaintiff's short delivery and his'executors cannot now set up such short delivery as an answer to the plaintiff's claim to his share of the mdk proceeds." He has apparently overlooked the statement in exhibit 3, which lias already been quoted. A notice was given to the bailees to hand over the cattle before September, and there is nothing to show that that demand was waived. If then the bailees rest their defence on the acceptance of short delivery, that was disproved and I found no facts which warrant any inference that the bailor at any time waived any claim he may have had. The bailees receive 104 head of cattle and they deliver up 07, but do not explain what became of the other seven. As I have said, it lies on them to explain this shortage, and they have not done so. The learned Magistrate seems to rest his judgment on the fact that in the letter sent by deceased on September 0, in which he enclosed a cheque for milk, no mention was made of the cattle short delivered. That letter, however, did not waive the chum that had been made, and it is admitted that in June, 11)17, it was agreed that "the matter of cows and pigs" should be "left open." There is not a tittle of evidence of any express abandonment of this claim. This being so, there is practically no defence to the claim for short delivery of the cattle, As to the other items in the counter-claim, it appears in the learned Magistrate's judgment that all were abandoned with the exception of the first three, namely, (1) the value of the seven head of cattle, £Ol, (2) the value of a pig. £7 10s, and (31 the value of one set of fourhorse pulleys, £3 10s. The evidence as to the pig is conflicting and T. cannot say that it is proved in this respect the judgment of the Magistrate was wrong; in the argument at the. Bar the main contention was as to the cattle. Mr Edward Tapp has sworn that the fourhorse gear was left in the shed, and I suppose T must assume that someone has stolen il since lie left. T shall therefore order that judgment on the counterclaim V given for the appellants for £01; and that the Magistrate's Court enter judgment accordingly, with costs on the counter-claim. Eight guineas costs on the appeal with disbursements were allowed.