S.M. COURT.

Bush Advocate, Volume XXI, Issue 139, 11 December 1908, Page 6

S.M. COURT.

YESTERDAY. (Before Mr S. McCarthy, S.M.) HORSFIELD v. GURR. In summing up, tho Magistrate quoted sections from the Shops and Offices Act, which provided that if an assistant worked in an office desiring up work it behoved an employer to keep a record of such time hi the special time book. The employer was bound to pay for the work, whether lie had consented to it being dono or not. The defendant's contention that he was not liable for tho tinio worked because it was unauthorised was not a valid one. Defendant had stated that he had spoken to plaintiff in the matter, but this was not sufficient, he should have dismissed plaintiff at once. The contention that defendant, was not Jlablo for the half-hour after five o'clock, which was allowed by the Act for finishing and clearing up work, /was well founded, and the charge for ■overtime for this tiihe would have to ha deducted. With Tegard to the two amounts which it was alleged that plaintiff had embezzled, he would sa;y that anyone who was connected with office work would know that it was ;a common prsictico to receive monies ajnd ask someone . else to write a receipt for same-. These amounts would not be allowed. The 12s already received would have to be allowed, also the difference in the rate of overtime worked between May 4th and May 18th, during which time plaintiff was employed at 8s per day. This brought the claim to £21 2s 4d, for which judgment was given^ with £4 2a costs. , GURR v. HORSFIELD. N. L. Gurr v. J. K. Horsfield, claim £50 for breach of agreement. The agreement entered into between Horsfield and Gurr, when the former was employed by the latter, set out that tho defendant should not engago in similar business to that "which lie wsis carrying out ' for Mr Gurr, after he left the latter's employ, within thirty .miles of Dannevirko. He held that Horsfield had not kept to tho terms of the agreement, and had entered into siich business. Mr Lloyd held that the agreement was unreasonable, and would prevent defendant from earning a livelihood. Mr Blakiston read sections from previous judgments recorded in Law. Reports, which allowed the striking out of the bad part of the agreement. The Magistrate said that the agreement would prevent the defendant from obtaining employment even on a farm, and was too wide. He would strike out several words- in clause 3. Mr Blakiston contended that defendant did enter into business similar to that of Mr Gurr, and had solicited work from' his clients. He called Norman L. Gurr, plaintiff, deposed that Horsfield left witness' employ on 19th September. On tho 21st had a business card (produced) placed in his hands, which set forth that Horsfield undertook accountancy and auditing work. , Horsfield had previously done similar work, for witness. The following persons were formerly clients of witness: C. J. Clarke, E. W. Hodder, .and Geo. James. Witness had in the past done these people*'?, books. He know of no reason, why they should not have remained, on with him. Horsfield had never spoken to witness* about ' remaining on in Dannevirke in business, nor had he asked if witness would object to his doing so. ' To Mr Lloyd: Mado up Mr Clarko's tax returns. Hdrsfield had mado them up whilst in witness' employ. Had not done- anything else m the auditing line 'for him. Had asked him (Clarke) for his books, and lit* promised that if he required any jjook-keopinis done he would put itill witness' way. Hodder and Jamos had had their books made up during Horsfiejd's employment with witness. Had not done them before he (witness) had employed Horsfield, nor had he done them since* ho left. Ho imagined that Horsfield had broken the agreement. Knew that ho had solicited work from witness' clients. Wad advertised that he Avas propsired to do accountancy work in all its brandies, the work being done by a certificated English accountant .Hqrs-

field was tho accountant referred to. Undertook this work beforo employing Horsfield. Wanted Horsfield to keep the agreement. Had spoken to Clarke and Hodder about their work and told them that he (witness) was still prepared to do their work. They had not stated whether they intended to come- back to him again. To Mr Blakistooi : It was at Horsfield's own request that he undertook lwx>k and accountancy work. If the defendant has started as an aocountaut and auditor it would injure witness' business. F. E. McKenzie deposed he had printed tho business card (produced) by Mr Horsfield's instructions. Had no knowledge that Horsfield had undertaken any accountancy work. To Mr Lloyd : Mr Gun* had met him in the street and asked him what Horsfield wanted at witness' office. Told him about the cards. Gurr said that Horsfield was not employed by him .now, and that he could say a good deal more if necessarj*. Charles James Clarke, butcher, deposed that he had employed Mr Gurr to make up land tax returns. 'Horsfield had given him n business card and later' had asked him for his books. Gave them to him at £2 per month. , ' To Mr Lloyd : Before giving the books to Horsfield had done them himself. Guirr had asked for them, and he had l promised to give them /to him if he made a change. Changed his mind. Had ho (witness) not given the books to Horsfield would have still been doing them 'himself. Horsfield had not offered to do the work cheaper than Mr Gurr. Could get them done cheaper than Horsfield was doing them. WouM not have given 1 them to Mr Gurr if Hor9^ field had not offered to do them. Edward W. Hodder, carpenter, deposed that, Mr Horsfield had made tip his books while working for Mr Gurr. After Horsfield; loft Gurr, the latter had offered' to do his books. • ' ■ George James deposed that Mr Gurr had kept his books. Since Horsfield had left Gurr ho had used

his (witness') office. Horsfield had nob done any work for witness. To Mr Lloyd : Had been in conversation with Horsfield while the latter was employed by Mr Gurr. Offered to givo iiim the books to keep. Horsfield had said ho would, speak to Mr Gurr relative thereto. Lnter Horsfield saw witness and said Unit Gurr would not agree to Hprsfi< Id doing the books unless they Tver* done through his (Gurr's) office, and urged witness to argee to this, stating that lie could do them at his (witness 5 ) house, and so earn overtime. Agreed to this. Had the books brought up to-date, and paid Gurr 2s 6d per hour for same, some £6 or £7 altogether. Would not give the books -to Gurr to do up again, as he did not want every Tom, Dick and Harry to do them. Would give them to the mail, who had done them in Gurr's office — Horsfield. . This concluded the evidence for plaintiff. Mr Blakiston submitted that a breach of agreement had been made by defendant making use fop his own benefit of knowledge obtained in Mr Gurr's office. Mr Lloyd agreed that a breach of agreement had not been made by" defendant, and gave reasons for his contention. He called • James K. Horsfield, accountant find 1)00 fc- keeper,' having experience in England, said he" came to Dannevirke, a.nd ! was employed, by Mr Gurr and entered into the agreement (produced). When witness joined Mr Gurr he (Gurr) wai not holding himself out to. the public as doing accountancy or book-keeping. Had to do considerable arrears of work in tho office. Saw Mr Gurr's letterhead. It exactly set forth the branches of Mr Gurr's business. Mr McKeever was employed by Mr Gurr immediately before witness joined him. Did not suggest the clauses in the. agreement. Agreed to them so as to secure the billet. The letter of application for the position was 'practically written at Mr Gurr's dictation. The first book work and accountancy done in Mr Gurr's employ were that of Mr James. Mr James' version was the correct one of how he had obtained them. No other persons brought books to Mr Gurr besides those who gave evidence— Messrs James and Hodder. No accountancy o raudit--ingwork had been done in. the office during his employment. _ Had been doing book-keeping work in the town since leaving Mr Gurr. The advertisement published by Mr Gurr referred to witness. The card produced was written, by witness. Went to Mr Gurr oil the Saturday evening before leaving his employment, and asked him about the agreement, stating to him that he was not prepared to leave Dannevirke, and that he was a married man, and' had his family to support. Mr Gurr said 'he would snot \ waive the agreement, so they parted, Mr Gurr remarking that he (witness) would find him a hard man to deal witlh. Was keeping books for several people in town at present. Admitted 1 issuing the business card since leaving Mr Gurr. Had never iiudertakenv land or estate business, firo insurance or any similar work since leaving; Mr Gurr. Edward V. McKeever deposed he was formerly in the employ of Mr Gurr for about, 14 months. Never knew Mr Gurr to make \ip any tradesmen's books or undertake auditing or accountancy during his stay with Mr Gurr. Every branch of Mr Gurr's business was set out on his letterhead, and was carried' out during 1 his employment. This concluded the evidence. . Mr Lloyd read' lengthy sections from the 1892 three Chancery Division Law Reports and other authorities in support of his argument that the agreement was void. . The Magistrate summed up as fol- . lows : — Plaintiff agreed to enter the service of defendant as a clerk, and up to the time of doing so, very little clerical and accountancy work seems to have been carried on, or very little had. been added since. Dannevirke was a growing district and ;town, and it was only fair to assume that it would largely increasfe, judging by its ■ prosperity in the past. He held that the clause in the agreement, debarring defendant from using confidential information, etc., foe his own benefit, was a reasonable one. During the hearing of the case he had held a certain part of a clause was unreasonable, inasmuch as it would , debar defendant from entering into any sort of employment at all in this borough or within 30 miles, therefrom. He had directed that this should be amended ,and it was now for him to decide whether the Temainder of the clause was unreasonable. The clause laid down that defendant should not enter into similar business in the borough of Dannevirke, or •; within a radius of 30 miles there- ; from. There was no time limit, and the agreement was to hold for all time. Taking into consideration the importance of a growing town like Dannevirke, and the authorities, ho held that the agreement was unreasonable, and judgment would be for defendant of the counter-claim, with costs £2 16s. Mr Blakiston asked his Worship to fix the security for an appeal on the counter-claim, also the claim. His Worship fixed the sum at £40. The case Barraud and Abraham (Mr Lloyd) v. George Fulcher (Mr Blakiston) was adjourned till next Court day, on the application of plaintiff, he not being m a position to go on with his case .