JURY DISAGREES

Taranaki Daily News, 9 December 1921, Page 8

JURY DISAGREES

CARE OF SOLDIER’S FARM. CLAIM FOR £2500. ATTORNEY’S ALLEGED NEGLIGENCE. After a hearing extending over nearly four days the jury announced a “nodecision” verdict in the case of W. F. Spence v. A. C. Pease, which has been occupying the attention of the Supreme Court at, New Plymouth. Plaintiff sought £2500 damages, alleging that Pease, who acted as attorney during Spence’s absence at, the war, had been negligent in the management of plaintiff’s farm at Awakino. Mr. R. H. Quilliam appeared for plaintiff, and Messrs. P. O’Dea and R. D. Welch for defendant. Mr. O’Dea reviewed the evidence and affirmed that when it came to a point where the facts were to be weighed the jury must believe Pease. He dealt with the status of the manager (Scott), and contended that Pease could not be held responsible for any defaults which Scott may have been guilty of, but which were not adHe quoted a clause in the power of attorney, which provided that Scott would indemnify Pease against loss. Mr. Quilliam said the real question for determination was whether defendant had been negligent in carrying out the duties which he had undertaken, and he submitted that the evidence established clearly a failure on Pease’s part. Referring to the clause in the power of attorney as mentioned by Mr. O’Dea, he said it obviously was not meant to indemnify an attorney against loss which occurred through his own negligence.

In a lengthy summing up His Honor said the case was peculiar, and one which would require serious consideration. Proceeding to deal with the facts, he said there was one matter which needed clearing up—narflely, the power of attorney. He desired to point out. that there was nothing extraordinary in the form of this, and it was probably similar to that given in thousands of cases during the war *by soldiers. It contained very wide powers which, probably in most cases, were never exercised. His Honor also remarked that the question of Pease undertaking the position of executor had been referred to, but. nothing turned on this, while the question of the rate of interest was made much of. These had nothing to do with the case, and he regretted they had been introduced. There had been a suggestion on the part of plaintiff that Pease was out to get. his farm, and it would be noticed that he made other wild charges against all and sundry. “I can only attribute | that,” said His Honor, “to his mental | condition following upon the effects of his ' war service, and 1 regret that it should CONTROL OF THE FARM. Continuing, His Honor said it was quite clear that defendant, was the plaintiff’s agent; he was constituted such by the power of attorney. It was not from the power of attorney, however, that they would ascertain what Pease’s duties were to be. This could only be obtained from the letters and the verbal evidence, and it would be their duty to interpret the meaning of these. His Honor proceeded to review the correspondence and negotiations as affecting this point. He remarked that Spence’s evidence was to the effect that when he got back on final leave and vis- j ited the farm in company with Pease the orchard was broken down, '’and the cattle were neglected and starving. This was an extraordinary position, -because if this was actually so one would have thought that Spence would have said Scott was ini- | possible and dismissed him. He said that he would either have to apply to the military authorities for an extension of leave or to do the best with the labor offering. According to Spence, however, the Scotts were absolutely unreliable in regard to stock. Yet, said Has/ Honor, Spence al- ; lowed them to remain on. His evidence ; was to the effect that he tolerated Scott i because he could not help it. He had, however, told Pease to keep his eye on the Scotts. The evidence of Pease was to the effect that he offered to give Scott all information and to pay all accounts; that he did not undertake to visit the property, but said he would do so if he could. The correspondence showed that Spence had communicated with Scott about 'the shearing, and not with Pease. In his first letter to Spence Pease reported : fully concerning happenings since the plaintiff’s departure showing the amount of stock sold, and the wages paid to the employees. He also said that he had not been up to the farm so far, but Scott, sent reports, and as he was reliable everything was all right. His Honor said the question on this letter was whether Pease would have written in such a tone if he had been told (as Spence stated) that Scott was not reliable. In the course of a lengthy ’ reply, referring to many matters, Spence ! did not indicate that, his instructions had not been carried out, but said he was glad to know the Scotts were doing all right, that he had told Joe not to write as he knew they would do their best. Spence sent instructions for Scott to do certain things, but if, as was stated, Scott was not manager, how came the orders to be sent apparently recognising Scott, as being in charge? He had accepted Seott as being in this position, judging by another letter, in which he he was writing to Scott to tell him what to do with the sheep in order to save Pease trouble. A letter from plaintiff in April of 1917 plainly showed that he relied on the Scotts being able to give more information than Pease. Writing to Spence later Pease said that from what he had been told at the Awakino sale he had the idea the Scotts were not playing the game, but would make em quirles. Spence’s reply was that the information vexed him very much, but did not surprise him, and he supposed that, if the Scotts added dishonesty to inefficiency they would have to make the best of AN AGENT’S DUTY. In view of the various facts, His Honor asked if it could be stated that defendant had the actual management. The plaintiff would have to supply convincing evi-

dence that, the defendant was negligent in the duties he undertook. His Honor directed that if the jury were of opinion that Spence was satisfied to leave the Scotts in charge, and that defendant had fulfilled his duties when he obtained regular reports from Scott, they need go no further, for in such circumstances defendant would not be responsible for any negligence on Scott’s part. On the other hand, if they thought defendant had neglected the plaintiff’s interests they would have to decide whether any damage had resulted to the place. If the defendant had gone up to the property, could he have done anything to remedy affairs, in view of the special circumstances? These were stated to be the difficulty of getting men to work. If they found for plaintiff the question of damage's would have to be re| viewed, and in conjunction with this had to be taken the matter of an agent’s duties. An agent was liable, provided that the loss was such as would be likely in the ordinary course of things and resulting from a breach of duties. They had to decide first what were the defendant’s duties, and whether they included periodically visiting the farm. If they thought the duties were such and that, damage was caused through neglect, then the verdict would be for plaintiff. If, on- the other hand, they believed he was not bound to visit the farm, then the finding would be for defendant. If they thought that even if defendant, had visited the farm he would have been unable to do anything, then he should get the benefit of their decision. His Honor briefly reviewed the items in the statement, of claim, and in the coursi of dealing with the items remarked that the method of computing the tallies of sheep merely from the invoices through the auctioneering firm from which they were bought was quite wrong, and if the plaintiff was awarded damages the amount could not be computed on such a basis.

The jury retired at 3 p.m., and returned at 7.15 p.m., when the foreman announced that no agreement had been reached. After His Honor had consulted with counsel he asked that the jury retire for another half hour to see if any decision could be reached. When the jury again came in at eight o’clock the foreman announced that no decision had been arrived at, and there was no possibility of an agreement being come to.

On the application of Mr. Quilliam, a new trial was ordered, to be held at the next sessions of the Court in February.*