KIRK V. CHEESE FACTORY.

Bay of Plenty Times, Volume XIV, Issue 1888, 12 September 1885, Page 2

KIRK V. CHEESE FACTORY.

Thb following is tlie judgment delivered by Mr H. W. Brabant, R.M., in the case of R. Kirk v. Tavranga Cheese and Bacon Co., a brief notice of which appeared in our last issue ':-— „.. „ , (i - ,j,,,.- - a---ffr.this oas9 iho plaintiff, a settler, seeks to recover the sum £19 3s 4d from the Taurnnga Cheese^ Butter and Bacon Manufacturing Company, Limited, being the balance of amount due for milk supp'ied to the company from November, 1884, to May, 1885, at the rate of 4d per gallon. There is no dispute as to the quantity of milk BuppHed, indeed the claim is based on tho defendant company's own statement of amounts. The defence is that the plaintiff agreed^ to take 4d per gallon and to wait for a portion of the money until tho cheese was realized on or if he did not agree to do that he ahou!d accept 3d per gallon, shown to be a qiiaititm mni'iiit from the facfc that the result of the operations of the company had proved that to be the worth of tho milk and that the shareholder's m the company who were also iri'k suppliers had' agreed to take 3d per gallon i The sura plain lift would be entitled to calculating the milk at 3d pet- gallon hao been paicl into Court before hearing; Plaintiff in his evidence, said that he supplied his milk at current pi-ices which hfe Understood to bo 4d as he saw it in. print, that ho recoived short payments from time to time, that he objected to such shoi fc payments but wan assured it would bo better next month that there was no time mentioned for his getting the amounts kept back bub he was assured by the person who paid him that he ' would get' it eventually ; that he is not a Bhareholder in the company. For the defence Mr R. Horie was ex- ' amined, he said that when he paid plaintiff his first cheque he told him thut all suppliers would have to wait for a portion of the money ti 1 l the cheese was realised on, that all other suppliers were treated in the same way; that it was carried at a meeting of shareholders, on August 19th, that suppliers were to take 3d per gallon instead of 4d, but that plaintiff was not present at the meeting and was not a shareholder ; that there are only two lion shareholders amongst the suppliers of milk; he allowed plaintiff might have objected when he took his first payment ; did not know if he did so iii writing, Jfr Lundon was examined for the defence but his evidence was not material. Mr Galbraifch i i reply to defendant's case agreed that the agreement to watt, if made, was a uiulum pactum, or if there was a consideration tho time was indefinite, tho time was when the cheese was sold, wHoh may never happen. It appears to me that the .plaintiff at a ll , events tacitly agreed to wait some time for the balance of his money ; Ido not agree with the contention that the other contract to wait was a nndum pactum. I think that finding a market for plaintiff's produce was a consideration — sometimes a very important consideration with settlers — here it seems to me that the contract to wait connot bo construed from its indefiniteness. Plaintiff could not bo supposed to wait an indefinite time to suit the company and it appears he has already waited a reasonable time, nine months in respect to one payment due, eight months in respect to another, and so on, down to three months in respect to the last payment due. It is hardly necessary to say that the shareholders having agreed to take 3d per gallon because the "company have made a loss, cannot affect the plaintiff's case, nor does it in my opinion even establish a qua))tti»i meni.it — i.e. , for the real value of the milk. The loss in the company's operations seems to have resulted from causes ihdependant of the price of milk.