RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 2168, 26 February 1891, Page 2

RESIDENT MAGISTRATE'S COURT.

Gebaidine—Tuesday, Feb. 24, 1891. [Before C. A. Wray, Esq., R.M.] GIYIL CASES. J Turner v W B Compton—Claim £l7s6d. Mr F Wilson Smith for plaintiff. Judgment by default for the amount claimed and costs. E H Pearpoint v McKenzie— Claim £1 16s. Judgment by default for the amount claimed and costs. W Brennerd v Or Allington—Claim £ls 2s, £6 4s being for the balance of wages due, £4 10s for damage to plaintiff's waggonette, and £4 8s hire of the waggonette to Oamaru and baek. Defendant filed a set-off of £1 due by plaintiff for two weeks' beard. Mr F Wilson Smith appeared for plaintiff and Mr Salmon d for de-

fendant. Plaintiff, who is a Frenchman, stated that he went to cook for defendant on August 11, 1390, and continued there till February 11,1891. Was cooking for Allington and five mates, who worked at the G-eraldine flax mill. The wages were to be 25s per week. One of the men named Harry Balton acted as spokesman when the arrangement for wages was made. He conferred with the others, and then informed plaintiff that they would give 25s per week. Was not knocked off tor a fortnight during last Christmas time, although there were only two of the men there. Received a cheque for £6 on the 11 th inst. Had received altogether £26 6s. The cheque was Allington's, and plaintiff objected that there was still a good deal owing. Alf. Friers gave him the cheque, and said that was all that was owing to him. Nothing was said about a settlement, and plaintiff was not shown any account. Plaintiff also owned a waggonette, and when they engaged him they asked him to bring the waggonette to cart the fibre of the paddock. 1 No bargain was made, but witness charged 6s per week. (Defendant admitted hiring the waggonette, but said that an agreement was made that the t price should be 5s per week.) The -, waggonette was broken during the i time. The shafts, axle, and kingbolt 1 were broken. No mention of repairs 1 was made at the time of the hiring, \ but when Allington was spoken to \ about them he promised to pay for i them; He paid for the kingbolt. As i to the axle plaintiff said he went down ; the paddock and saw them carting 1 small loads of stuff, and asked how it 1 was they took such small loads* He put on some more fibre, and when he drove on foi a bit the axle broke. The i others said he had too much on, but be wanted to know how that was when a spring dray carried over a ton. The ■ waggonette was in first-class repair : when they commenced, and they had never disputed paying for repairs till now. Plaintiff got it repaired at \ Carston's, Winchester. In December Allington asked for the waggonette to i go to Temuka. He was away four i days, and plaintiff found he had been > to Oamaru. Told him he should want : £1 a day for it, but had charged him ; £2 for the trip. During the Chriot- ' mas holidays he had never received any notice, nor was he paid off. There was only two men to cook for, but he was not told to go. Mr Salmond put in an account receipted by witness with his mark and witnessed by E Abbott. The ; account was for so many weeks wages ; to Dec. 15th, at £1 per week. Plaintiff ( denied ever having seen the account before. He was certain he did not affix his mark. He repeated what he had said as to the breaking of the axle. He was driving himself at the time. As to charging £1 per day for the waggonette to go to Oamaru, when he only charged 6s per day for carting fibre, he considered it did it more harm to run to Oamaru. In reply to His Worship, plaintiff said he thought it worse for the trap to go to Oamaru than to cart fibre over a rough paddock. Mr Salmond tried to cross-examine plaintiff, but the latter was so voluble that counsel had to give up the attempt, W Carston, coachbuilder, Winchester, deposed to the trap being thoroughly overhauled and put into good repair at his shop in August 1890. Came back to him in October last and he again repaired it. (Account put in.) The whole of the repairs were necessitated between August and October. There might haye been a slight flaw in the axle, it was difficul to detect, but the break looked as if there had been a flaw or the oil had run down on the break. The under carriage was completely wrecked. To Mr Salmond: The trap should have been streng enough to carry the fibre, It must have been heavily loaded to have broken it about as it was. To His Worship : Cartiag flax would be far worse upon it than running along the road. John Hay, greom at J Mundell and Co.'s, said the usual charge for the day for a trap only was 7b 6d, a little more if it went out of the dristrict. £2 for going to Oamaru was not out of the way. For the defence, Mr Salmond called Edward Abbott, who deposed to being present when plaintiff signed with his mark the account put in. Witness was loading the trap when plaintiff came out and put on a big load. Plaintiff got up and drove and the axle ' broke while he was driving. t

To Mr Wilson Smith : Was a relation of Allmgton's. The receipt was signed by Bronnerd on Dec. 28rd. Friers asked witness to witness plaintiff's signature with bis mark, and did so. Witness read the papers over to plaintiff, Allington was not there. Never put such loads upon the trap as plaintiff put on when the axle broke, Was driving the trap daily and knew the state of the undercarriage, Never noticed it was injured. Did not think anything could be wrong with the axle without witness noticing it.

Geo. Allington, ftaxmiller, Geraldine, defendant, said no men were working at the mill for a fortnight at Christmas time. A week before the holidays plaintiff said he wanted to get squared np and go to Ashburton for the holidays, Witness agreed, and signed a cheque, which was paid to plaintiff on Dec. 23rd. Expected plaintiff to go to Ashburton and no one ta be at the camp, Plaintiff did not go away after all, and witness found plaintiff had been living at the carqp, at his ex pense. Another man—James Marshall said he would stay and pay for his tucker. He paid £1 for bis tucker for the fortnight. Witness charged the same to plaintiff. Plaintiff was engaged at £1 per week, and 5s per week was to be paid hia for the hire of the waggonette, Balston made the arrangements. They broke the shaft and were willing to pay for it, but did not know the cost. Plaintiff knew he broke the axle himself with heavy loading, and did not say anything lill they squared up. The trap was used at the Orari mill for a similar purpose, With regard to going te Oamaru, he asked plaintiff to let Mm have the loan of his trap and harness in December last. Plaintiff said he could have it, but if he broke it he would have to pay for it. Witness agreed to that. Plaintiff asked him how long he might be away, and witness replied that he might be either a week or a fortnight. No mention was made of hiring it, or of £1 per day, and plaintiff never charged for it. Witness had often had the trap before and once Bince, and plaintiff had never charged for it. The amount that had been paid to plaintiff was 6s over the amount due to him for wages and the hire of his trap. This 6s was a refund of money he had paid out of his pocket for bread.

To Mr Wilson Smith: Did not know who cooked at the camp during the holidays. The receipted account was made out from the books. Friers kept the books. The payment was in full to December 16th. Had always paid 15s to £1 for a cook, and'in one instance 10s. Expected to have the trap to Oamaru and back for nothing, as plaintiff offered to lend it to him. Was willing to pay him at the same rats as for carting, that would be 2s 6d. Plaintiff left to go to a job at 25s a week •.■•-■if/-"

To His Worship: There was no* need for anyone to be at the camp during the holidays, as it was a house, and could simply bo locked up. Was going to allow the two weeks' board for the broken shaft, but its plaintiff was claiming for the shaft witness had claimed for the boaid

Alfred Friers, deposed to being present when the arrangement was made with plaintiff to cook for the camp at £1 per week, and for the hire of the trap at 5s per week. Bemembered the account produced being signed by Brennerd with his mark. [This witness gave corroborative evidence as to the use of the trap, the holidays, tbe breakage of the trap, their willingness to pay for the shaft, their refusal to pay for the axle, and to his being present when Allington asked for the loan of the trap. He was cross-examined at some length by Mr Wilson Smith about the amounts paid at various times to plaintiff, without in any way impairing his evidence] In reply to His Worship he said that when he explained the account to plaintiff the latter said nothing about receiving 25s a week. He made no objection, and witness knew nothing about the claim for the extra Ss per week till notified of it by plaintiff's lawyer. Considered the repairs were necessitated 'by the axle breaking with a heavy load. They did not require plaintiff's services any longer when he left James Copping, carrier, Geraldiue, who went with Allington to Oamaru, deposed to being present when the trap was asked far by Allington. The latter distinctly asked for the loan of it, and witness never thought it was to be paid for. Was astonished to hear of the claim This concluded the case His Worship said it seemed clear that the rate of wages was to be £1 per week. With regard to the fortnight's holiday he thought it was hardly likely they would keep a cook on at £1 per week and his keep, to cootc for himself and another man, and they might allow the claim for hire of the wagonette to go against the £l. He thought if they excepted the shaft plaintiff could not expect to recover, anything else. The axle had a flaw or was cracked before, and plaintiff's putting a heavy load on the trap caused the axle to give way and damage the under-carriage. It was really done by plaintiff himself. The hire was evidently at 5s per week. He hardly understood why the case had been brought into Court at all. With the exception of the 12s 6d, plaintiff had entirely failed to prove his claim

Mr Salmond asked for costs, as if defendant had succeeded he thought it would be roost unfair if a man brought an action for £ls odd, and then only succeeded in proving for 12s 6d, which was already admitted, that the defendant should have to pay the costs. He contended defendant was certainly entitled to the costs Mr Wilson Smith said the usual course should have been followed and the 12s 6d paid into Court. By not doing so defendant had forfeited his costs. He contended that His Worship could not find for plaintiff for 12s 6d and then saddle hina with the eosts His Worship said plaintiff had failed to prove It's claim or any part of it. There was a sum of 12s 6d which perhaps he was entitled to. He would give judgment for defendant with costs, and deduct 12a 6d from those costs for the broken shaft. Three witnesses at 7s each and solicitor's fee were allowed The Court then rose