RESIDENT MAGISTRATE’S COURT

Temuka Leader, Issue 2388, 28 July 1892, Page 3

RESIDENT MAGISTRATE’S COURT

Geraldine —Tuesday, Jone 26th. [Before C. A. Wray, Esq., R.M., and H. W. Moore, Esq,, J.P.] CIVIL CASES. Judgment for amounts claimed, with costs, was given for plaintiff in the following cases :—R. H. Pearpoint v. A. Exley, claim £2, for goods supplied; Same v, G. H. Berry, claim £2, for goods supplied ; Same v. Thomas Wesley, claim £2 2s, for goods supnlied; H. B. Webster v. Gage, claim £l, interest on spring dray bought at auction. D. Gregan (Mr Wilson Smith) v. P. Kyne. This was a case arising out of one heard on last Court day, when judgment was given in favor of the present defendant, who was then the plaintiff. The present claim was a set-off against the claim in the previous case. Daniel Gregan, the plaintiff, was called, and said the present claim was for oats reaped by him for defendant. There was no actual agreement made as to charge, but he had charged defendant less than the current rate, namely, 3s 6d per acre. Defendant’s account against him was £lO 11s. Of this he had paid £6 9s 9d by an order, and defendant on last Court day had got judgment against him for £3 7s 3d; the present claim covered this and 14s which plaintiff in the previous case had forgotten to claim for. John Fleming gave evidence to the effect that defendant’s land was very rough, and that it was worth 5s per acre to cut the oats.

P. Kyne, defendant, admitted that it was really worth 4s 6d per acre to cut the oats, but as plaintiff offered to do it for 3s 6d per acre he accepted the offer. His contention, however, was that plaintiff had been credited in his books for the amount claimed. He had sent a memo, asking to have the price for cutting the oats taken from the £lO 11s, but had nothing to show that this had been done. The account for £lO Hi was rendered in 1891, and there had been no subsequent dealings. His books had since been made up by an accountant, and it was found that there was mom y owing which was not shown in the account for £lO 11s, and this account and all subsequent ones except the present one were incorrect. The Bench said it appeared to them, by defendant’s accounts, that credit had never been given for cutting the oats, and according to judgment of last Court day there was a balance in defendant’s favor of 14s; after deducting this, judgment Would be for plaintiff for £2 16s 6d. T. Washington (Mr Postlethwaite) v. William Taggart (Mr F. Wilson Smith) —Claim £2O 16s, for threshing a quantity of wheat. Mr Postlethwaite briefly stated the facts of the case, and called his witnesses. Thomas Washington, plaintiff, deposed that he agreed with defendant to thresh his wheat at 2£d a bushel. Threshed a quantity, and then had to remove to another paddock. The entrance to this second paddock, which he had not seen before taking the contract, had a very soft bottom, with a hill on the other side. Saw defendant, and told him about it. Defendant refused to do anything in the matter, and said it was a contractor’s place to make an entrance for himself. Defendant at last promised to come down early the following morning and show witness an easier entrance. Tffd defendant that ho would require to be down early, as he had threshing to do elsewhere and could not afford to be kept waiting. Waited the following morning for defendant, from 4.30 till 8 a.m., and was just going away with his engine when he put in an appearance and said: « Where are you going !” Told defendant he was going to another job, and had wasted enough time already. Defendant thereupon said ; “You can go, and I can get another man to finish the threshing in 24 hours.” Later on sent defendant his account. Defendant said he had to get a man to do the threshing at a higher rate, and would not pay the account. To Mr Smith : In taking a contract for threshing, it was generally an understood thing that the whole of the work should be completed before leaving, and if the contractor left the job for his own convenience he would not expect pay for whot he had done. If, however, for some other reason not connected with himself a contractor could not finish a job he should expect pay for what he had done. Witness had often been paid in such cases where lie had botm compelled to leave a job unfinished. He wanted to finish defendant’s job because he had left the best of the crop for the last, but as he had wasted all the morning, and had other work to do, he had to leave it. Defendant had told him he thought there was another way into the paddock. Witness knew qf no other way, apd a man named Fleming did not point phe but to him- Would not wait when defendant pame because time would be fost in making an entrance, which would take a good while. samuef Douglas, engine-driver, sworn, said that the entrance to the paddock in question was so soft that they could not (3EQf}s if without it being timbered. The qqtting, too, was very steep, and at the fop was lop-sided. §aw defendant the morning they were leaving. Did not hear him tell plaintiff of another road. The engine had been standing about two hours before defendant came. It was not usual for the engine-driver or proprietor to make roads into paddocks. John Olliver, laborer, pons|derpd that the engine could have been taken’ rip the filll easily ’hubugh, "and'if "sbniethiiig had hetm putin the Creek it qonjd have been grossed without bonier. f|lq“Mr fcjmith ; It Ipuph tfqqbifi ‘tb tilt hi tue gPUie of the )»“” M and ..... *vere willing to do it as Mr Taggart was ill at the time. Heard plaintiff' say the night before that he would not stop any longer, and the following morning ho did not wait for defendant but simply went into the paddock and turned his engine about to go. Mr Smith submitted that there had been a distinct breach of contract on the plaintiff’s part which entailed a loss to defendant of something over £SO. They considered that they had a right to bring a cross action for damages, but as they did not think that plaintiff’s position was Worth it they had not done so. As regards the contract,|it was not necessarily divisable because taken at so much per bushel, and as it was a special agreement there had been a distinct breach of contract.

For the defence Mr Smith called Win. Taggart, farmer, Pleasant Valley, defendant, who said he had engaged plaintiff to thrash his crop at so much per bushel, and from time to time had taken him,, over the crop, so that ho knew

the whole of the ground well before he took the contract. Told plaintiff the night before he left he would probably be down in the morning to show him another entrance, and, if not, his manager or some of the men would show him. Was ill in bed that night, and coming out next morning found plaintiff going away. The latter said ; “ I’m not going to waste time on the downs while I have plenty of work on the flat.” Witness objected to him going away, because it interfered with his threshing, and never told him that he could go if he liked. He had afterwards to pay a higher price for his threshing, and some of plaint; (f’s stacks had been so loosely put together that the rain got into them, and did considerable damage. When plaintiff came asking for the job witness said to him: “ If you do not go through the work I will not pay you for it.” Major Moore, farmer, thought it quite possible to get an engine up the cutting in question. At the entrance there was not a running creek, it was only a trench of watei’. He knew the other way into the paddock. It would have taken the engine about one hour to get round, and there would have been no difficulty in getting in. Mr Postlewaithe brought a number of analogous cases to prove that a contract like the one under dispute, taken at so much per bushel, was like a case in which a man receives wages, which could be claimed the moment the work was done or each bushel was threshed. He submitted that there was no proof of a special agreement. According to the contention of the defendant lie pointed out that if plaintiff by chance had forgotten to thresh a very few bushels he could not claim payment for his work, and defendant would virtually get his threshing done for nothing. The Bench said that it had not been proved that there had been any special contract, but thought that where the person for whom the work is done has received no distinct benefit he had a right to recover 1 , and if he had suffered damage by the breach of contract, he had the remedy ofjjbringing a cross-action. On the other hand, in the absence of any special agreement plaintiff had a right to claim for work done up to the time of his leaving. Under the circumstances they considered it best to defer judgment till next court day to allow defendant to bring a cross action. The case was accordingly adjourned. The Court then rose.