Magistrate's Court, Hamilton.

Waikato Argus, Volume XXIV, Issue 3785, 19 May 1908, Page 2

Magistrate's Court, Hamilton.

Yesterday.—Before Mr E. C. Cutten, S.M. —Civil Cases.—

Judgment by default was given for the plaintiffs in the following cases:—

F.' C. Hand (Mr Gillies) v. Thos. Johnston.—Claim, £l4 4s and costs £1 12s 6d.

F. C. Hand (Mr Gillies) v. Same. —Claim, £lO3 8s and costs £5 14s. Ellis and Burnand(Mr Swarbrick) v. Same.-£B3 15s 3d and costs £4 15s.

J. A. Thomas v. W. E. Clark.— Claim, £l3 15s. Mr H. T. Gillies for plaintiff, Mr A. Swarbrick for defendant.

Plaintiff gave evidence and said that in 1904 he was engaged by the defendant to milk cows for a remuneration calculated at the rate of 2|d for each pound of butter-fat obtained from the cows milked by him. The same arrangement was continued for the season commencing July, 1905. In July, 1906. the agreement was again renewed for the coming season. In December, 1906, the defendant agreed to pay an additional id per pound at the end of the season. He produced a letter from defendant offering to pay if £5 were allowed for damage to a horse. In crossexamination he admitted that he knew that the defendant was only manager for Mr Henry Reynolds, and that all accounts were in the name of Mr H. Reynolds, and that all cheques were signed by Mr R. Reynolds for Mr H. Reynolds. For the defence the defendant gave evidence that the arrangement made in July, 1906, was for the entire season at 2£d per lb, and that the extra Id promised in December that year was a.gratuitous promise on. account of the good price obtained for butter fat, and was made on the condition that it would be paid at the end of the season if everything was satisfactory. Plaintiff had, however, used a horse belonging to Mr Reynolds for his private work, contrary to defendant's instructions, and the Jiorse bad been injured and piactically ; destroyed. He considered that plaintiff had, therefore, not carried out his worß in a satisfactory manner, and refused to pay the additional Jd. Two other witnesses gave eivdence as to defendant forbidding the plaintiff to use the horse for his private work. j In addressing the .Court on behalf ■ of the defendant, Mr Swarbrick contended - First, that Mr Reynolds, or his attorney, and not the defendant, should have been sued; second, that the promise to pay the additional Jd was without any fresh consideration —a mere gratuitous act, and therefore a nudum pactum, on which the the plaintiff could not sue; third, that by injuring Mr Reynolds' horse plaintiff had broken the condition of the promise, and was not entitled to payment. He quoted authorities on the several legal points. Mr Gillies replied, traversing the arguments of defendant's counsel. He contended that Mr Reynolds, being out of New Zealand, the defendant, as his agent, was liable; that the consideration for the further promise was the plaintiff working to the end of the season, and that the claim for the horse should have been been by counter-claim.

In giving judgment, His Worship said that in circumstances such as this he should hold that the defendant was liable on the contract. He should have held that the promise of an additional id was a nudum pactum but for the letter written by defendant, which he took as an admission of liability. He suggested an arrangement between the parties on the basis that plaintiff's claim should be allowed without costs, defendant being allowed compensation for the horse injured. Counsel having consulted, judgment was given by consent for plaintiff for £l3 15s, with Court fees 16s, less compensation for horse. Joseph Jebson v. Mathers.—Claim £9 10s.

Mr P. Watts, who appeared for plaintiff, said this was a claim for three calves which were his property and which he alleged were wrongfully taken from him by defendant. The value of the calves was £4 10s and he also asked £5 damages for detention.

Mr MacDiarmid appeared for the defence.

Joseph Jebson said in November last he had three yearling calves which he missed from his farm on November 18th. Next morning he went to see defendant and iold him he had three of plaintiff's calves. Defendant said he had not; that the only calves he had had been handed to O'Brien. He again saw Mathers, who said the calves were his own: but that he left them at a neighbour's ylace. On December 9th he saw the cattle when they came on to the grass out of the swamp. He easily recognised the calves and saw that they had been earmarked and branded. Next day he saw Mathers and told him; but defendant said he had bought them at McNicol's sale on the previous Thursday. Defendant promised to ascertain who the vendors were but did not do so. Subsequently in company with Mathers and Exelby, plaintiff pointed out the three calves in question. Defendant said he had bought one of them from his brother, one from another man and the third he thought he got from a neighbour named Higginson. He made a formal demand for the cattle, defendant refused to give them up and witness rode in and cut them out from the mob. Subsequently witness had a visit from the police with reference to lost cattle; and with them visited Mathers' place, cut out the calves from the mob and the police took charge of them. He next saw the calves in Dalgliesh's stables in Hamilton on January 28th. He could swear to the calves which always ran together when the mob was "disturbed. The calves would now be worth double the amount.

Cross-examined by Mr MacDiarmid: Mathers had never prevented him going amongst the cattle to look for his calves, which when lost, were neither branded nor earmarked.

By Mr Watts: When witness saw the calves on Mathers' place the brands were nicely healed over and were about three weeks old.

Mary Evelyn Jephson gave evidence as to the identity of the calves.

William Gates said in November last he saw Mathers driving cattle. Mathers had three calves and asked witness if he knew whose they were. Witness replied "either Jephson's or O'Brien's." Mathers said he had got the calves on the road.

By Mr MacDairmid: He did not know that Mathers afterwards found an owner for two of those calves.

Edward Exelby and J. Jephson gave corroborative evidence. Defendant said when plaintiff called about the calves he was about tn leave home for the day. He asked paintiff if the missing calves were •earmarked. Plaintiff replied that they had a hole punched in the ear. Defendant referred him to Campbell who had charge of the stock. The calves plaintiff claimed as his were not earmarked at that time. He bought one of the calves from his brother James Mathers at Te Kowhai. One of the others he had bought at McNicol and Co.'s sale and the auctioneers told him. Mr Poynter had been the seller. He was not sure where he got the third calf; but he claimed it as his own. John Cameron McWilliams said when Jephson called about the calves he told witness that his calves were earmarked on the left ear.

John and James Campbell, J. Mathers and H. U. Poynter also gave evidence. Paintiff recalled said when he lost the calves they were not earmarked. The first time he mentioned the punch hole was when he saw Campbell. He said it would probably be found that they were so marked; but on seeing his son, who had charge of the stock, he found that such was not the case and he told Mr Mathers this at their next meeting. This was before he saw the calves on the grass hill. At this stage of the proceedings, the case was adjourned in order that a witness named E.. Johnson, of Clevedon, might gi ve evidence. . /