BAI v. SLOAN.

Poverty Bay Herald, Volume XLII, Issue 13641, 23 March 1915, Page 5

BAI v. SLOAN.

The judgment m. the ease of Edward Bai (Mr Blair) v. Frank Sloan (Mr Burnai'd) stated :— - Plaintiff, says : (1) Un or about the 15th s day of October, 191<», au agreement was made between tlie defendant aiid plaintiii with respect to tlie telling and delivery by ch'o plaintiff, of logs u_ defendants sawmill at liilivauroa, anu it a term of" the agreement that .payments should be made' on the '2oth ol each month " : by the/d efendant to the plaintiii, m respect of all logs deliver ed during the preceding moiith, less any amount advanced as arranged lor payment- of wages. The rate 'of payment was arranged at tlie rate bf 3s per 100 feet less an allowance of -_7_ per ccii!;. for waste. (2) In the '-'month ot November the plaintiff delivered" logs at the' said mill of a total measurement of 53,821 feet. (3) Defendant paid the plaintiff £30 oil wages ' account,' but Ira's not paid the balance due oir the -Utli December, 1914, -in ■■-terms of agreement between the parties. (4) The balance payable by the defendant to the> pluiniift is made up as follows : — 53,821 ft less 17_ per cent allowance, namely '7918ft — 45,903 ft as 3s £68 17s, less credit for wages £30, £38 17s. (s)' On oi- about -ihe 15th day of December, 1914, the defendant refused to allow the plaintiii I to carry out tlie -contract mentioned m paragraph (1), and wholly repudiated and put an end to the said contract. The plaintiff has spent much time ana" money m erecting buildings and plant m preparation for, and m connection ■with the said contract, and has siittered damage by reason of 'the defendant's repudiation namely, £50 m respect of labor.and material, and £100 for loss of profits, which the said plaintiff would otherwise have 'made. .'Plaintiff therefore sues the defendant and seeks to recover the said sums,, making m all *£188 I7s. I am of opinion that' the timber claimed for ie practically correct. Plaintiii says that he measured the logs and' that his measurements were checked by the witness J'arlov, who produced his figures. There may be a few feet overcharged for which 1 shall make an'allowance of £1. In reference to the claim for breach "of - contract, there is no doubt that defendant refused to allow plaintiff - to ' continue to carry out the contract, and the question therefore for my consideration is whether he was justified mso doing, tt appears that the defendant had received an order for a quantity,, of birch timber — 2500ft — and he went to the, plaintiff and told him to cut it, the plaintiff replied that there was not' sufficient of that class of timber within reach of the. hauler *to supply the order, and that he could not shift the hauler till all the millable timber within , its reach had been cut out, and that it wris ntvt cujj tomary m such contracts to do so. Plaintiff said that defendant suggested that he should get a bullock team and haul logs out, but plaintiff tdld him that it was. not 'part- of 'his contract to do so. Defendant thereupon 'said 'that if he did not get the birch timber he would take the contract out of plaintiff's hands. Plaintiff replied that if he did he would sue him for breach of contract. Plaintiff says 4hat defendant came to him on the 12th December, 1914, and said "You can take, it at that ; you will not be allowed to go on with the contract, and yon must leave the house." . . , For the defence it is

contended 'that assuming defendant has committed a > breach of the- contract, that the^ damage "to plaintiff m consequence thereof, is very small, as there was practically no .demand for timber after. . the ' alleged ; breach. . . . Dependent admits that he terminated the conI Cra^t upon the grounds of .plaintiffs refusal to shjft the hauler, for the purpose of cutting the birch. The question therefore is whether defendant was juatified m: so doing. The ; plaintiff and I .Tarlov say that it is not usual to 'shift the hauler . till all -millable timber with!in its reach has been cut out. Against which defendant says that it is usual to*' move -the- hauler from place to place according to the class of timber requir-ed*-for the fulfilment of each order. -The evidence of defendant is not supported hy that of any other testimony, and that being so I am not satisfied that the plaintiff committed a breach of the contract by refusing to shift the hauler m order to cut the birch timber. If the contention of defendant- is correct then a very great hardship might be imposed upon a contractor by requiring him to shift the hauler every few weeks, which to say the least of it would be most unreasonable. . Under . the circumstances 1 am of opinion that defendant was not. justified m determining the contract. The question now is what damage has plaintiff suffered^ consequent upon tho breach. Tlie plaintiff's profits would depend upon the orders received by defendant for tiinher. It is proved beyond all doubt that since the termination of the contract that the demand for tiinher has fallen off considerably, and that most of defendant's men had left his employ, consequent npon very few orders being received for timber. It is difficult to estimate accurately the amount of loss the plaintiff has suffered, but T think m all the circumstances which the sum of '£50 will be a reasonfor timber the parties agree as to quantity with the exception of a few feet but the defendant claims that the allowance for waste should be 20 per cent instead of 17£ per cent, as allowed by plaintiff. The agreement of the 6th of August, 1914, upon which this action is brought is silent as to the allowance for waste, but a former agreement between, the same parties dated 2nd February, 1914,' throws some light upon the matter, as it provides for an allowance of 17_ per cent. I allow the amount claimed f° 1 ' timber* less £1, £67 17s, less credit lor Avages £30, £37 17s. Judgment wilr theiiefore* be entered for. '£37 17s for timber with damages for breach of contract £50, £87 17s, less amount allowed on -counter-claim '-£l7, leaving a balance iv favor of plaintiff m the original action "of £70 l7s. Judgment accordingly with cos,t3, costs of court £2, witnesses expenses £1 14s, solicitor's fees £3 10." Regarding the counter-claim his Worship 1 said the contractors were required imddr'the terms of the contract to keep all' machinery, etc.; m good order and ooiiditibir, wear and tear accepted. The evidence showed- that some of the article's had been in* use' for a considerable time prior to the contractor taking them over, and his Worship was not satisfied"that thc"depi'eciatea condition Jn which Sloan .found them when he terminated the contract, was caused other than by reasonable wear and tear. He allowed £5 for damages to hauler, £7 for trani repairs. 5s for cow bells, £1 for' logging trucks,- £1 12s 6d for , rent, £2 2s 6d horse grazing.