S.M. COURT.

Bush Advocate, Volume XXI, Issue 96, 21 October 1908, Page 5

S.M. COURT.

■r ♦ ' THIS DAY. COLDSTREpTv. McLEAN. The case of Cbldstream v. McLean was taken at "the courthouse . t hi > morning, before Mr Thompson, S.jl., of Palmerston North, sitting h.-s :i Registrar of the Supreme Court. The case was one in which p]:....itiif claimed £427 9s 4d, and iinvas partly heard at tlie last sitting of the Supreme Court, at Palmerston North, when Mr Justice Denniston ref erred the settlement 6-f accounts between the parties to the llegistrar. • Mr P. B. Fitzherbert represented the plaintiff, and Mr Lloyd the defendant. Mr Fitzherbert, in opening the case, stated that the defendant had drawn a section on the Tamaki block (Rangitane), and not desiring to work the land himself, he called for applications for a »tenant, who would work the land on shares. On 16th May, 1906, the agreement before the court was entered into between the parties. A difference had now arisen between them as to. the terms of the agreement, and the court was asked to adjust these differences, and assess the compensation, if any, due to plaintiff. Plaintiff claimed £27 9s 4d, the purchase price of certain goods ; the suni of £100 for the value. . of the improvements effected on the land; the sum of £300 compensation for loss caused by plaintiff 's breaches of agreement ; and such further and other relief as the. court deems him entitled to. He then outlined the particular objections "which, his client raised to' defendant's ; method of carrying out the agreement, and read the letters "which passed between them prior to tlie taking of legal proceedings. The case for the plaintiff was that defendant had not carried out his agreement by providing a proper house for plaintiff ; he had not supplied the cows required, the pigs, or the farming implements, whereas on the plaintiff's part he had effected all the improvements to the property, of which defendant had got the benefit in the increased value put on to the property. - He called, William Alexander Coldstream, who deposed that he saw plaintiff at Ti Tree Point, and entered into an arrangement with McLean, which arrangement was afterwards embodied in the agreement. He went on to the section at Tamaki and commenced to cle'Sr the land, as it was in a very rough state. He had to camp out in a tent- as there was no house to live in. The first cows were delivered early in May, and defendant left the colony alxmt the end of May. Witness therefore had no opportunity of testing the cows before defendant went away. The c/>ws turned out a very poor lot, and milked very badly. He wrote to Mrs McLean about it, and subsequently (4th July) he bought six. more cows, which Mrs McLean paid for. . He then had 32 cows and a bull on the in-operty. The "cows should have averaged 451bs of milk, but the best only averaged 411bs and the worst 91bs. The returns were supplied by the factory, and were accurate. Witness gave defendant notice that he desired to reject some of the cows, and defendant gave him five more in January. There were only nine out 'of, the 26 that could be worked into an average herd. It was impossible to always tell how a heifer will turn out until the second year's milking. The five supplied in January did not replace all those he had rejected. He really needed nine. Defendant did hot remove the rejected cows from the farm. The bull supplied by defendant was absolutely useless. After the January cows he got no more until November, 1907. He got no profit out of the Jamiary cows. The rejected cows were turned out into the - bush, because defendant would not take them away. In July, 1907, defendant picked out five fat cattle which had been rejects, • and sold them. He would not take any more because the market was not favorable. He had not received any part of the proceeds derived from the. sale of the fat cattle. . In the flush of the season, ]ie was milking 28 cows, but they were not full milkers. In January last, a bush fire occurred, and he wired "to McLean, but he did not come in to see what could be done to provide for the cattle. He had to make arrangenients with Mr Urquhart to graze them. Urquhart milked the cows, and' sold tl^e milk in town, and from 28th January to 31st May, they proSueed milk to the value of £30 16s. At ih© end of May he brought the cows back to the farm, and there was no milk until September of this year. He supplied this milk to Mr Webber, the value being £2 9a lOd. When defendant went to America he left witness no pigs, and no authority to get r any./ Witness bought one sow (for which Mrs McLean paid), and sold the litter of five, and with the money he bought more. According to the agreement, half the increase was to belong to plaintiff, and there were now 11 pigs on the farm belonging to the partnership, valued at £18; £9 of that belonged to witness. He had to keep the pigs in a paddock as defendant would not erect stys. Of the articles necessary to work a dairy farm, defendant only, supplied a plough; one leaf harrow, spade and crowbar, 'fencing wire. There were no sheds, or outhouse convenience, or troughs. The house was not complete. He had improved the farm by fencing, cultivation, stumping, making gates, and building cowsheds. He also had to purchase other articles necessary to the working of the farm. His Worship questioned the inclusion of a number of these items, such as chaff, medicines, etc., but Mr Fitzherbert contended that as defendant had .failed to sxipply the agricultural implements it Avas. impossible for plaintiff to cultivate the land and grow his own chaff. As to medicines, if defendant had supplied good dairy cows, his client woujd not have required to doctor them. To Mr Lloyd: He had not been over the section prior to seeing McLean at Ti Tree Point, but he knew it was a rough section. He built the cowshed and was satisfied with it so far as it wont. , He understood Mc- ! Lean was subsequently to agree to the | erection of another six bails, but he 1 did not do this, neither did he supply the cement or shingle for concreting the shed. The cows arrived in May, some of them were in milk then, but witness did not write and ob-

ject to this because McLean was to come and see him, which he never did. His first account book was spoil-, ed while ho was living in the tent. Ho had since" kept another .which |..he would produce. There was no reason why the house should not have | been built. He got his timber in for the cowshed, and if Scott had liked to push on he could have got the timber for the house in. The fact was that while McLean was away, no one cared much about it. He. tried to hurry Scott up but lie got very little satisfaction. He was satisfied with the house, but it was not now. the best lions© on iJie blo?k as .there were others just as good. H© did not do any stumping the first winter, i because he had no tools to- do it, with. He did not pay all the milk cheques into- the bank as provided by the agreement, as he could not always get into town when the bank was open. When' McLean came back fromAmerica witness had no opportunity, of complaining about the cows he had sent him as McLean did not stay on. the farm long enough to give hinr the chance. The herd now after his-, purchases and cullings was only an average herd. In a general way, a farmer selecting his own cows would probably mill out two or three per year from a herd of 20. He expected to get cows that would give him 35 to 401bs of milk per day, with a 3.5 or' a 3.6 test. For a time he got a very good test at the factory, the best he had being 5 . He h ad no : com- ; plaint against, the test, but against the quantity °f milk given;. The. place would carry 35 cows in the milk-" ing. season, if prop&rly-'.-workeclj "but if' lie had had 20 goods cows ilie- first season, he would have been satisfied, ■ Once "or? twice he put water in. the milk to check the test, not to- get more 'skim milk back, as he had no occasion to use skim milk. The. cows were not "dogged." He- grew as milch hay as he could during- the first season, but he could have grown more if -he had had the. implements to cultivate with. ' The cart and harness supplied were not satisfactory. He was not anxious to purchase the sec--1 tion," and he was not anxious that the -H.B; Land Board shoxild bring i pressure to bear on himv. ■.■■'•"■-. -; James Smith gave, evidence as to the capacity of McLean's section. At first it« would have carried 35 cows, but it would not carry i* now, after ■fciheifires had been over it. He would not r buy more than five out of McLean's dairy herd as good dairy cows. He had paid as high as £11 for a dairy cow, and £6 would only buy a fair cow. In his opinion Coldstream had managed McLean's section as a good settler."^ . To Mr Lloyd : He formed his opinion of Coldstream's herd by what he saw when he was helping to. milk them. Coldstream's test might have been higher than his but he was supplying nearly twice as much milk. He should be able to run a few more cows than Coldstream. McLean's sec-, tion was a good one, and the fact that McLean could take away four fat beasts while there Avere 40 cows on it weiit to show that the section was capable of carrying 40 cows. He would, prefer a big milker with, a low test to a poor milker with a high test. John James Urquhart deposed that he considered Coldstream callable of managing a dairy farm. He had milked Coldstream's cows and he con-^ sidered them a poor herd. ~ He would have thrown about nine of them out, three or four were good, and the rest were fair. He did not consider the farm well equipped. (Left sitting.)