R.M. COURT.

Wairarapa Daily Times, Volume 4, Issue 1153, 16 August 1882, Page 2

R.M. COURT.

MASTERTOH-TIjKSDAY. I ' ' - "•( ' B.M.] ' /<•- .5 .V -| EWIKGT»)T M : . ~ "' ' (Continued.) Bunny i asMd- permission to call anotfiSHitness after"ihtimoiting. : that tho 1 OMe'WM olqsed, Mr Beard objeoted, but. ihe. Court granted his request, Francis called, but Mid noVanaweir'tolhisloatae., , i , * James Bwington for the defence posed that he Iwd -near Mr brewery. Mr Sjnith^ydk^u^pj^P /Ttf Mr the s, premised. 'Mr Smith spoke'Otjge about the goati being on his property. Did nut knowthat the goats had been .running at. ( large, ' Th«y might have broken loose a ■ time or two .and gone down the town. Had "Heard; 1 no about fthem except' a' iimmoM' frora l: the : ' ! Bovnush Council, (A laugh). Was very little at h'ome'during the day time. Had never seen his goats on' Mr Smith's property, but could swear he had seen three hftrses there, ■: ;Mr Bunny, I. suppose you are familiar wiih the habits of goats. \' ? Witness! I kuow a goat when I see it. (A laugh), ' ; . . ; Mrißuuny; Dun't they destroy everything they coins across ! ' .Witness: They. have been in my garden . often enough and have never destroyed anything, J 'Mr Bunny: there was nothing •, there for them to deßtroy. i 'J. 0; Ingram; ;Inspector of Nuisances, i said he bad Been horses :m; Mr smith's : j enclosure. .In the summer time 110 hrut seen two or three there, Isitterly but one.: • The,paddock was not securely fence! It might keep out horses arid 5 coWb, 1 bnt nut 1 oalyes.;.,Hh had seen the slip-rails down. "To :ftlr B.unny: .Had hot aeeri goate on the premises. Mr Smith complained to him: :on two'occassions abouji cows and goats trespassing.' . j Mr Buuny contended that the plea of .• the defendant was bad. ( ' The Court' said that: no? plea .had been' 1 made. "' :: ;. Mr Bunny submitted that even if the plaintiff's property were entirely unfencod , the, owner.of the animal which did the | injury would be responsible. ] Mr Beard-submitted that there hud j been contributory neglect on the part of : the plaintiff who tried to make the Court . believ§ that his horses were trained, as in 1 »cirous, not to eat any tree or trample on any plant. The Court said it had to decide whether i the goats had done damage. This they , oertainly had, The only question was to ; arrive at a proper estimate of the amount \ of the damage done, and whether the , wholeof tho damage was done by t h e goat s. : It felt morally certain that a portion of the damage was done by the horses, and could , not attribute 11 all to thu goals. The I plaimiff eviduiiily did hm ~ne hup' iutatiou at a very high rate v,'iwn he'allo# ed horses to stray in it. The cost of reinstating the trees was, according to the evidence of Mr Lennox, Sve jwiunds, and the Court would give juduMut for i' 3 and costs for the plaintiff, '(Had the 1 horses not been allowed to wander ut large, it would probably have fixed the' damages sumewhat hjgher. Oounael fees and ten.shillings each';for tW.witnesses were added to tho judgment. Mrj McCirdle, the third witneaa, did not claim expenses. APPLICATION FOR COS|3, i Mr Bunny brought before the Court a question of costs in Mr Beard and hiraielf 111 a ream cm in which judgment had been reversed on a seoond hearing. Mr Beard objected to the time of tho Court being occupied with a question relating to Counsel only, Mr Bunny stated that his friend was about to take out execution for the costs. Mr Beard: That is so. The Court decided to take the mutter, in chamber!.' '' Q. CBKKR V. 8. FANNIN. ' 1 ; Olaim-£so'nam gea. fllr Skipper for plaintiff and Mr' Beard for defendiint. ; Mr Skipper in opening the caso detailed : the circumstances on which the action was < brought, His client had been engaged by Mr Rouridtree to paint and paper Mr; McKenzies house in Bannister-street whoa' the following letter was received from Mr' Fannin, "16 May, 1882, from G, ii'ahnin to VV, Eoundtree. |'l understand j you have arranged with Mr Coker to do the painting for Mr McKenzie'.t house,|bufci I decidedly objecf to his goim? on with the i work;" ' Subse'quently he, as Mr Doker's solicitor wrote to Mr PBnnin asking i lio reason why Mr Coker was dismissed . from his employment. Mr Fannin wroto back "the action you refer to being! strictly within the limits of my ptofesstonal duties I decline tu give you ihe t information , which you seek." He asko Jj Mr Beard to show him the agreement.! between Mr Fannin and Mr Eoundtree.? Mr Beard: There is none. Mr Skipper said this threw a new lii-ht on his position, but he thought he could prove that Mr Eoundtree was acting m the agent for Mr Fannin. j The Court aaked Mr Beard how far he! admitted tho position of principal audi agent as between Mr Fannin and Mr'; Eoundtree. j Mr Beard did not admit it at all, but; asked that the bill of particulars be! amended so that the information might bo; given is to who engaged and dismissed^ the plaintiff.- , ' J < Mr Skipper: I shall leave that to the! Court to decide. ' jf '1 Mr Beard; The Court will see there ia > no agency or attempted agency in the ? matter. The Court asked Mr Skipper to insort the words "by Eoundtree, as agent foe defendant" in the declaration, ! . Mr Skipper was willing to insert the words" by defendant or. his ageut. M W. B, Koundtteo deposed: I am a builder residing at Mastorton. I had the H contract from Mr. Fannin to build Mr H MoKenzie'i house in Bannister street, The contract was advertised in the newspaper and was in The arrange, ment for trith -ifrH McKenzie. of agreement:^| in Mr Fannin's office. I'have done otherfl contracts under''MV Fannin, but nevei^l contracts with him,. Mr Fannin was al witness to the contract and he had thejH controiluf the'work. I arranged a of the work" with' Mr Coker, aiidhefl sn'tered'upon it, He did about ten of primings I-examined the material but as it was subject to the architect's approval it was not my business to upon it. I consider I anyompotentl^H form an opinion as to the quality material, 1 had no reason to find fault | with the work done. I saw Mr Fannin H the same morning; who sayi he objectedl to Mr Coker. I 'know that under tho fl any objectiotiiH to what Mr Fannin said. ; s ifThe Ooarti; ooniider that he hadiH right under, the agreement to any: men whom-you might employ .Witness: 7es,f : ~ I J s xMr}< Jkipjjeri Witness fl 'consider 1 competen^^^^^^^^^H and !

felt compelled :to act under ; Mr Fanuin'i instruoiicus with reapect to any" of. the men I employed. I have never known another instance in which Mr Fanmri has objected to a man, I engaged to pay, Mr . Coker £B4los for the job, but did not pay him anything. ~r j To Mr Beard: I never aotedai agent for Mr Fannin. I employed Mr.Coker in my capacity as contractor for-'the houae, and also dismissed him in the Bi.me capacity. " •' • " ;; : Mr Beard submitted that the question of agency being disproved the other queetioii of slander was not one 'within "the jurisdiction of the cbnrt. Mr Skipper said there, was no (juesiioii : .of slander. He pleaded that, a wrongful act was the cause of dismissal,, , T hq Court :: If that dismissal was the" BBfifccbntary act of a third party how.areypu jHflpßlito bring that in. . Mr .ykipper said that the arohitect had full power, to dismiss' for incompetency or lhisconriuct, but not under any other circumstances. . ='i lie Crurt: la not that a matter between v ..;. Mi._'Ci'ker; : and MrrKountree. ;lf the , arclii'teot exercised M power' wrongfully .. thei contracts would have a remedy • against him, and'Mr Cbker'against the . contractor. -, ,' : IPr, Skipper; Tlie contractor linder the agreement which he signed has no right of > action against the (i^TheCourt: Tha't is his loot out if he signs suoh agreement*. Mr Skipper said the arbitrary power exercised.in Mr Fannin's letter was a great hardship. If hia client broueht the action against Mr Hountree it would be also a hardship for him, aa they did not regard him aB blameable in the matter. The Court: The dismissal of Mr Coker us far.as the .evidence has gone was the : voluntary act of the builder. Mr Skipper; It was something like a man being "run in," I wish we could have got Mr Fail hin io state his ground for dismissing the ].i-mtiff. We wanted to get him into thi imp, but couldn't. (A lnugli.) Does your Worship hold that there is no agency? . ' The Court: Yes. Mr Skipper: Your Worship allows Mr Fannin to shield himself behind Mr Eniuitree's back. The Court: I dare sayit.will come round in a circle. If you are successful ag ains Mr Roundtree, Mr Koundtree will have at case against Mr Fannin. Your object I take to be, first, your objection to an architect exercising an arbitary power of dismissal, and secondly lo show that your c'lent was competent to carry out the . ivcik l e undertook. No evidence has yet linn |,i'cducid io throw a doubt on Li- cr.mpfileiicy all that has come out is thm, the contractor acting under the diiccMi'ii of the architect discharged him. Mr Heaid said tlmt when the action was Inflight in a pnper form either against Mr Koundtree or Mr Fannin he should bo prepared lo meet it. Mr Skipper accepted a nonsuit with costs £i 10b. He said the action was bought merely to vindicate the character of his clionl. THIS DAY. Gillespis v Girdwood. Adjourned case. Messrs Parker and Skipper for plaintiff, and Mr Board for defendant. The Court, in giving judgment, held, fiist, shat.id the Kaumirigi contract plaintiff was not a partner, and was only entitled to claim fcr 35 days labor, the time . Jlmved by the timekeeper, at the ordinary wages— 1 7s per day, against .: which a'charge for keep of 14b per week, would be allowed, leaving a .balance'in hia favor of Itf, the amount paid into Court. In ihe Brancepeth contract plaintiff was to receive pges for his work, and half profits. Defendant, liowpver, olaimed 1 the profits a Bum of 118 at remim- . 'era'ioii for hiß own services. This claim ,iii.e C'juit'could n'ot'allow as it wai not p?rUof the arrang' i, ent made between tiic parties. It*, b. wever, would allow . (Uiftiitfant twelve <.ays' labor at eight " shillings per day, which he had done on the contract. This raised the amount sf profit to £l6 8b 4d, the plaintiff being entitled to £7l4s 2d, less ill 2a 2d paid to him. The Court therefore gave judgment for £7 on Jhe Kaumirigi contract, and £6 7b 2d. on the Brancepeth one, total 7s, and costs £5 17b. | Messrs Skipper and Parker argued in favor of a larger allowance than ;two guineas as counsel fee, as the amount of the claim.r-arfjed a higher rate. , . The Court.decidecl,,that.in the present case the Counsel's fee should be'based on the sum recovered, not on the amount claimed,: and intimated that it might make a general rule to that effect, and pofsibly adopt the Wellington practice, wiiich, in cases under five pounds, did not carry costs for counsel and witnesses It also, at the request of Mr Parker, explained that the costs fixed by the Court tlid not flet'ermine the fee to be: paid between client anil solicitor.