ALLEGED NEGLIGENCE.

Taranaki Daily News, 6 December 1921, Page 6

ALLEGED NEGLIGENCE.

IN MANAGEMENT'OF FARM. WHILST OWNER WAS AT THE WAR. AN UNUSUAL CASE. Unusual circumstances surrounded a claim for £2500 which was engaging the attention of Mr. Justice Reed and a jury of twelve in the New Plymouth Supreme Court yesterday. The plaintiff was William F. Spence, farmer, Awakino, for whom Mr. M. Myers (Wellington) appeared, and with him Mr. R. H. Quilliam (New Plymouth). Defendant was Arthur Clifford Pease, farmer, of Mangatoki. He was represented by Mr. P. O’Dea (Hawera), with him Mr. R. D. Welch. The claimant was a returned soldier who sought to recover that sum from Pease (his former attorney), as compensation for the latter’s alleged neglect in conducting the management of plaintiff’s farm while the owner was on active service. The statement of claim alleged that the farm had been allowed to go back, and set out rhe fqUowing instances of damage: Growth and spread of noxious weeds, £200; neglect of clearings, £300; destruction of orchard, £5O; loss of sheep (219 at 30s each), £318; loss of fencing posts and ton of wire, £75; loss of 4001bs of mixed seed, £25; loss of cattle (53 at £lO each), £530; loss through failure to sell cattle at proper times (158 cows at £4 each), £632; general damages, £370. The following jury was empanelled: H. W. Broad, F. J. Frewin, H. Rawson, B. Haughton, W. S. Cartwright, A. C. Evans, H. Julian, H. R. Russell, A. C. Binnie, W. H. Baunton, A. Evetts, E. H. Carter. Mr. Russell was chosen foreman. PLAINTIFF’S CASE. The plaintiff, counsel said, was a farmer inland from Awakino, and the property was rather rough—typical sheep country. It was cleared from its virgin state, and was such that in order to bring it into a profitable state it needed a man with a big heart. The first acquisition of part of the land was made by Spence in 1903. In 1906 he began to work the country, felling, burning, grassing and stocking. Subsequently he acquired other pieces of land, with the result that at the present time he was the owner of over 1400 acres, part freehold, but mostly leasehold. In 1915 the position of the title was that there was a mortgage to the Government Advances Department of £250 over one section of 301 acres. As the mortgage had been given some years before, however, and as it was being paid off by instalments, rhe amount was, no doubt, substantially less than £250. Defendant (Pease) and his sister-in-law, as trustees, held a second mortgage over that section, and also a first mortgage over the 436-acre section. The rate of interest was 9 per cent., reducible to 8 per cent., though counsel desired to point out that the period under review was before 1915, and that even up to the end of 1915 8 per cent, was substantially more than the current rate of interest, for a first mortgage, or what was to all intents and purposes a first mortgage. In a sense, therefore, Pease had an interest in the property, and in the plaintiff. The mortgage held by Pease and his relative was to secure certain advances, the amount owing being something over £lOOO. ENLISTED FOR SERVICE. Spence bore the reputation of being an excellent farmer, and in 1915 had every prospect of becoming a prosperous one. He was then an unmarried man, and about the middle of 1915 he enlisted for active service, in due course going to the front. It would be seen that in the of a farmer, especially a man who had no relatives, it was desirable that he should have someone to look after his interests while away. It was made apparently easy for Spence by the attitude which was taken up by Pease. He was one of the most highly successful and experienced farmers in Taranaki, and the sort of man one would expect to come forward and offer assistance to a soldier going away. To a man like Spence an offer from such a farmer as Pease to look after his interests was nothing short of a God-send. Counsel reiterated that no better man could be found than Pease, provided he, as attorney, was prepared to do his duty. Further, he had an interest in the place which entitled Spence to think that he would take this interest. Pease insisted on the drawing up of the power of attorney that he was to have absolute control, and in this factor lay the keynote of the case. Spence, was only too glad to agree to this, and also assented to the suggestion thfcit a codicil to his will should be prepared appointing Pease executor. Documenta- conferring power of attorney ar;d executor were drawn up, and counsel read extracts from the papers indicating 1 hat very full power was given. There was also provision in the power of attorney that should Pease become incapable of acting Newton King was to be appointed to attend to Spence’s affairs. If Pease was either unable to look after Spence’s affairs through the attention that his own business required, or unwilling to act, he should have handed the mandate over to King. Counsel suggested that if that course had been taken no trouble would ever have arisen. King’s company had men about the district, and they could have seen how the property was being handled and how it was deteriorating. FARM NOT INSPECTED. During the whole of the time that Spence was away from New Zealand Pease did not pay one single visit to the farm. Would he have so acted if the farm were his own ? He was bound to give to Mr. Spence’s affairs equal attention to that devoted to his own, or, rather, the same attention as he might be expected to give his own afi. «s. Early in 1916 Spence left New Zealand with the 9th Reinforcements. He was badly wounded, and he returned to New Zealand late in 1917. At the time he went away his farm, it would be proved beyond question, was in excellent condition, and was well stocked. Within a year or two of going away he had cleared and sown further areas of 201 and 127 acres. At the time Spence went away Pease inspected the property, and a discussion took place as to what was required in regard to management, and as to how the sheep and cattle were to he dealt with pursuant to Spence’s instructions. When Spence got back he visited his farm as soon as his health permitted, and found that his affairs had been so neglected and mismanaged that he was wellnigh ruined. The property had been allowed to go back and deteriorate into a shocking condition. The clearings, and more particularly the recent one, had received no care at all, and were covered with noxious weeds, requiring much work and expense on Spence’s part to get them back into proper conditions. He found his instructions in regard to the stock had been totally disregarded, and it even looked as if the stock had been mustered. Certain cattle which were to be sent to the freezing works were never sent, and the calves were not ear-marked or branded.

To use a colloquialism, everything was in a “howling 'mess”. This capable, experienced and prosperous farmer had been apparently Joo busy attending to his own affairs to perform that duty to the plaintiff which he had undertaken. OBLIGATIONS OF DEFENDANT. Counsel had not the least doubt that Pease’s own extensive business required a lot of attention. He understood Pease’s sons went to the war also, but Pease had undertaken the Responsibility, and had insisted upon having full control, and the man who undertook that must perforin his duty. Pease could have got over all the difficulty by arranging with Newton King to do the work. However, he chose to retain his mandate, and had not carried out the duty, so plaintiff was compelled to seek damages. What was the duty of an agent in such circumstances as these? asked counsel. It might be said that he was a gratuitous agent, and was not receiving remuneration. True, there was no provision in the power of attorney for payment; but he had power to appoint other people, and to stipulate their remuneration. Mr. Myers said he was prepared at that stage, however, to assume that Pease was a gratuitous agent, but having a kind of indirect interest in the property, over which he had insisted upon having full control; he was really something more than an agent of the term mentioned. Mr. Myers referred to the legal position in such cases, and quoted from the Encyclopaedia of the Laws of England as follows: “An agent who acts gratuitously is bound to exercise such skill as he actually possesses and such care and diligence as he is in the habit of using in regard to his own affairs. He is not liable for mere want of skill, except for the want of such skill as he holds himself out as possessing, or as a person in his situation, may reasonably be expected to possess.” In that duty Pease had failed. In this case breach of duty and negligence were synonymous terms, and he assumed that His Honor would direct that Spence was entitled to recover in respect of all damage which he had sustained, and which could be reasonably due to Pease’s breach of duty. DEFENDANT’S ROLE. In a statement prepared in connection with the defence, it had been contended that the agreement between the parties was that defendant should act only as financial adviser, that Spence should appoint a 'manager, and that he did employ a man named Scott in this capacity. This, however, did not help Pease in the least degree. It was true that Spence had on the farm a boy named Scott who could handle stock provided ho had some direction. There was some fencing to be done on the property., and this boy’s father and brothers were engaged to do the work. Subsequently before going away Scott., senr.. was placed in charge, but Spence told Pease that this was only temporary, and was subject to his (Pease’s) cbhliiol. While Spence was away Pease actually made payments for the fencing;, but when plaintiff came back he found the work had never been carried out. Spence had not expected Pease to be at the farm all the time, but the arrangement was that either the defendant or his son was to superintend the farm and make periodical visits of inspection. Not one single visit was made by Pease or -his son, and defendant had authorised the payment of all sorts of accounts which showed that Scott and two of the sons were apparently Jiving on Spence. Mr. Myers quoted various correspondence which passed between the'- parties while Spenee was away to support the facts as outlined in support of his case, the letters from Pease to Spence containing progress reports of the work in connection with the farm. “Things are not looking too healthy here.” wrote Pease on one occasion. “The Government are rotten, and the labor unions are bossing the country now you boys* are away. The blighters have their opportunity and they don’t hesitate to use it.” After quoting this, counsel suggested that the persons were not the only blighters who were not doing their duty. It was .alleged in the statement of de

ence that Spence had delayed his action and had ratified everything that was done. This was denied. That defend ant’s conduct was not ratified by Spence was shown by several letters. On om> (•version he wrote to Pease: “Somewhere in France.—l did not write earlier because when T went away I did not give myself any chance of coming back . . . In any case everything was alright with you.” This was the spirit in which Spence had gone awaj*. PLAINTIFF’S (EVIDENCE. Plaintiff proceeded to give evidence stating details of the various arrangements as had been summarised by Mr Myers in his opening address. He stated that when he was on final leave he visited the farm, and he found that instructions which he had given before leaving had not been carried out, “and everything looked as if there was a blight upon it.” When he returned from the front he found that the second growth on the new clearings had got too far away to allow sheep to get it down. The instructions regarding the disposal of certain stock had not been carried out, and he ascertained from Pease that he had never been on the property. In regard to other matters, Pease blamed Scott for deceiving .him. Witness told Pease that he was going to put the matter before solicitors, to which defendant replied that he would • have to be very, careful as to whom he went for, and Pease advised him to go to Welch and McCarthy. He subsequently took the matter out of that firm’s hands. Witness proceeded to give details of the tallies of stock he had made on his return and as to the number unaccounted for. Lengthy cross-examination followed. In reply to Mr. O’Dea’s questions, the witness sai<l he had three miles of a road frontage, of which one mile was fenced, and at the back of the property the boundary was merely hush; the sides of the property were also bounded by bush. The total length of boundary was about eight miles. The cattle would go into the -bush in the winter time, but would come back into the clearings in the summer time. He denied that his cattle often wandered on to other >eople’s properties. He came to know Pease through his brother Joe Pea ie. The latter had been the one who fin?.u?ed w tnoss on the property originally. ’ He had not paid any interest sine: 1913, but had intended to pay of! the whole lot in 1914. if it were not for the war. Since the death of J. Pease the defendant and (he widow took over the financing. He was also financed by Newton King, who charged him 10 per cent, on a bill; he denied that it was to his interest to pay off King first. Ho also denied he was on very friendly terms with the Pease’s but had written to them during the war. It was in 1919 when ho first spoke to a solicitor about making a claim on Pease, but the latter knew in 191'8 that a claim was going to be made It was on December, 1920, when his wrote to Pease.

“HEADED OFF.” If you had a claim against Pease why did you not consult a solicitor?—Pease headed me off, and said there was one man who was the last I should go to. Mr. O’Dea: Who was that? —It was you! Dealing with the question of appointing an attorney, witness said he approached Pease to see what arrangements could be made, but did not ask Pease straight out to act for him. In regard to appointing some one to take charge of the farm, he had to take Scott because he was the only one to fall back on. He considered, however; that Pease should have made .the trip up to thA farm t;o oversee affairs, and he also told Pease that Scott, senr., was unreliable. He had given instructions, however, that the boy Scott was the only one who was to touch the stock. He admitted sending a letter saying ha did not want to hear anything about, the farm, and also that he got a letter from. Pease saying that the sold well and was looking well. It gave particulars of the stock disposed of. BRISK PASSAGES. Why did youlnot write and tell Pease that your orders had not (been carried out ?—lt’s no use talking to you. I could talk to a man who has been there. It’s no use getting cheeky. Why didn’t you write —Well, I .was standing alongside my grave, and anything I wrote would have been on the water, and I might have been under the ground. His Honor: What do you mean by saying you were standing alongside your grave?—lt was just before the battle of the Somme. In the course of further questioning, witness was asked if he suggested that Pease was making anything out of him, and he sai ! he did. What was he making out of you?— Well, he knew that if I sold the stock he would be cleared. What would he get out c.I you then? — Well, he kne.w that if I was killed he would get my farm. Further questions dealt with cor-es-pondence between Pease and Spence, and he said Pease gave him to understand that the Scotts had carried out certain work according to instructions. He denied that the property was worth more noAv than when he came back. He was ‘carrying 1190 sheep and 200 cattle on a little over 700 acres, but this wa= because he was gradually getting rid of the effects of the damage the property hart sustained. Tn collecting evidence, did you tell pie Scotts that it was Pease you were after? And didn’t you also say something about the two scoundrels at Hawera?— I don’t think so. Do you remember asking Scott to render accounts? —No. Now be careful; are you sure? — Don’t yap at me like that! You are here to answer questions and not to be cheeky.—Well, I am not going to be talked to like that. His Honor: What was the question? Mr. Myers (interjecting): ft wasn’t a question; it was a warning which he resents. Re-examined by Mr. Myers: There was no need to fence the road boundary as the stock could only travel a limited distance. If Pease was too ibusy witness would have been satisfied if he had employed a competent man to go and inspect the farm and see that the work was being done. In the case of selling however, lie wanted Pease to go personally, or he would have been agreeable to leave the matter to one of Newton King’s men. His Honor asked if any evidence was to be led as to whether properties could be conveniently leased during the period mentioned. Mr. Myers said it \vould be recollected that there were many transactions during that time, and a good deal of complaint was made about people buying up the farms of men who had gone away. Mr. O’Dea: Not this kind of property. STOCK AGENT’S EVIDENCE. William McKenzie, stock agent, in the employ of Newton King, Ltd., said he knew plaintiff Spenee be a capable and industrious farmer. .He was acquainted with Spence’s property at Awakino, and had seen it a few weeks before Spence went to the The clearings were pretty well kepr., and he did not know of any noxious w’eeds there After Spence went to the war witness noticed that the stock bore a neglected appearance; the scrub was growing fast on the clearings, and foxglove was prevalent. From his observations he thought any practical man would have noticed that things were going wrong. About twelve months afterwards the neglect became so conspicuous that he reported the matter to his principal to see if the firm could not take a hand in. the control of the farm. Previously Spence’s stock used to pretty well top the market at the Awakino sale, but the ones he saw were not as good. Prospects' for farming were fairly good in 1916, and he thought that if the property was in his hands it could have been leased. He had expressed the opinion that Spence was losing £lOOO a year by being at the front. Assuming that there had been an occasional inspection of the property •by a competent man. of course he did not think this would have occurred. Speaking of the depreciation which had occurred in the newer clearings, he thought it would cost about £4 per' acre to clear and grass them. The plaintiff was in the box for about six hours, of which cross-examination occupied over half the time. The Court adjourned at 9.35 p.m. till ten o’clock this morning.