MAGISTRATE'S COURT.

Wairarapa Age, Volume XXIX, Issue 8217, 22 August 1906, Page 6

MAGISTRATE'S COURT.

At the Masterton Magistrate's Court, yesterday morning, Mr W. P. James, S.M., delivered his reserved judgment in two ohsos which had recently been heard by him. In tbe case of J. S. Donaldson v. J. W. Bridge and H. E. Andrews, a claim for the sum of £7B 15s for alleged breach of contract, in con nection with plaintiff's apprenticeship, His Worship, said that be was satisfied that the plaintiff ooul<3 not succeed in the present action. A contract for personal services was not, as a rule, an absolute contract, but was generally subject to an implied condition that the servant's inability to serve, if due to illness, should not be a breaoh. The servant's illness, therefore, did not usuully entitle the master to determine the contrnct, but the master might have an implied right to determine it in the event of an illness which rendered the servant permanently incapable of serving, or of an illness which frustrated the object of the contract or went to the root of the contract. According to Judge Montague Smith, in the case of Boast v. Firth, a contract is a personal service depending on the personal capacity of the apprentice, aud obviously that might be prevented by bis illu a s 9 caused by tho aot of God or by his death, also the ' aot of God. It seemed to him that it must be taken to have leen in tbe contemplation of the parties that a prevention by the aot of God should oe an excuse for nou-performauce of the personal service of the apprentice. If there had been no authority on the subject, he should have thought that the parties intended it to be an obligatio certi corporis that; tbe oontraot was to be performed only if health and life continued to enable it to be performed. In such a contract it ib implied that ability on the part of the apprentice to perform the contract is to continue. If the apprentice is placed by the aot of God in such a state that he cnuld not perform the contract the parties must be taken to have contemplated that, and no right to compensation should arise. The case of Taylor v. Caldwell seemed to have been decided on tbe principle that when parties were contracting about a certain thing or person, there was an implied condition that tbe thing or person should contiuue to exist in a state fit for the performance of the oontraot, and that if that state ceased to exist then the obligation ceased. The plaintiff unfortunately was suffering from an infectious disease, and although he said he was ready and willing to perform his part of the oontraot, under tbe "factories Act 1901" the defendants would, if they employed him at their rooms, which are deemed to be a "'factory," render themselves liable to a penalty for so doing. The law, therefore, prevented the defendants from carrying out their part of the "contract. However, in any case, now that the time of apprenticeship had expired, the Magistrate oonsidered that that in itself would relieve tbe defendants from further performance of the contract. Judgment would therefore be given for the defendants, with oosts. Mr U. K. Logan appeared for tbe plaintiff, and Mr P. L. Hollings for the defendants. In tho case of C. 0. Jackson v. James Wiekens, senr., claim for £5 for injuries inflicted on plaintiff's dog by defendant's dog, and S'l 2s expenses in connection therewith, the Magistrate gave judgment for plaintiff for £5 and oosts. Mr R. K. Jackson appeared for tho plaintiff, and Mr P. L. Hollinas for the defendant. On the application of Mr 1-loliings leave to appeal, if thought expedient, was granted.