SUPREME COURT-SITTINGS AT NISI PRIUS.
Monday, March 15. rsefor© Mr Justice Gresson and Special <• Juries.] 33ie Court re-opened at 11 a.m. BOVEY V BBBD. Mr Garrick, with him Mr Cowlishaw, for Williams, with him Mr Nofctidge, &r Tn L e !LMesßrß H. J. Tanered (foreman), f Ldown, T.P.Brownell, M. P. StodLrSee Field, S. S. Field, S. Bealey, W. Beeves, K. Oobb, A. R. Powitt, J. Studholme, aa j a thjfl' action Bobert Mitehelmore Bovey vu the plaintiff, and Charles Eeed was the defendant. Plaintiff, in hia declaration, alleged thafe on the 6th February, 1864, he entered Mo sn agreement with defendant to take chsrge of hia etations in the Middle Island of Jfeif Zealand, from the time of plaintiff's gnifal at the Austerfield station, on the Ashbarton river, in the province of Canterbury, at a progressive salary ; and that moreover aa endorsement on the eaid agreement, signed Iγ defendant, promised plaintiff certain bonuses, provided certain conditions were fulfilled l'bat plaintiff arrived at Austerfield on 28th June, 1864, and continued in defendants employment until 20th August, 1868, when he was wrongfully dismissed by defendant. Wherefore plaintiff claimed £ 175 wages for one yeer and certain other sums as bonoMS. Defendant pleaded that he had paid the sum of £175 into Court; and ac to the other claims, he alleged that plaintiff had cot carried out his (defendant's) written inetructions, and that he had habitually neglected his duties. In hie replication plaintiff accepted the sum of £175, but denied the defendant's other pleas. The issues for the jury to determine were: — 1. Did the defendant's written instructions on the general management of the stations referred to in the agreement in the first paragraph of the plaintiff's declaration set out, contain the clauses alleged in the defendant's first plea ? 2. Were the said alleged written, instructions shown to the plaintiff by the defendant at the date of the said agreement, or at any other time ? 3. Were the eaid written instructions, and all books of account, stock books, store books, and other books relating to the defendant's stations in the plaintiff's possession and power during the time that he acted as manager for the defendant ? 4. Did the plaintiff habitually neglect the said written instructions in the said agreement referred to in the particulars specified in the defendant's pleaa ? 5. Did the plaintiff, to the best of his ability, and as far as practicable, carry out the defendant's written instructions on the general management of the defendant's etation, in terms of the said agreement ? 6. Was the plaintiff requested by the defendant to abstain from staking out sn annual balance, as alleged in theplsusfciff^-replication? .7. DM the de-. fendant request the plaintiff to issue meat to the nven upon the defendant's etation, without weighing the said meat, or keeping an account thsreof ? 8. Did the defendant request the plaintiff to keep an account of sheep killed, scad, or missing in or upon the defendant's K&id stations P 9. Did the plaintiff misconduct iumself In the service of the defendant by habitually neglecting his duties in the said service, and failing to perform the same in the particulars specified in the pleas of the defendant? 10. Is the plaintiff entitled to recover from the defendant any, and what sum, for the damages sustained by him by reason of the wrongful and improper dismissal of the plaintiff by the defendant from the services, as in the plaintiff , B declaration alleged ? Eobert Mitchelmore Bovey, plaintiff, examined by Mr Gamck, deposed: — I recollect making the agreement with defendant which has just been handed in. Defendant was then in England. Before we entered isto the agreement defendant asked mc if I was to come out at once, and I did so, and arrived in Canterbury on 28th June, 1864. I tfent straight to the etation with Mr Ford, the tbeo manager. I found defendant* on the etttion, having left him in England. Defendant never showed mc any written instructions ia England, he merely said I shall send yoa written instructions on my arrival. I found no such instructions. Before entering on mj duties defendant did not furnish mc with aay detailed written instructions. He never foraahed mc with any written instructions except those I produce. The only written instructions I received from him were given to mc from time to time, either by letter or on «fis» of paper. (These were handed to the jarj.y I never except those received any written instructions from Mr Reed ; he gave ffle verbal orders from time to time. When defendant was about to leave the station for a tune he used to give instructions on the slips of paper that I have just produced. When defendant was on the etation I used to go to door of a morning for instruc&%s. Defendant used to be on the station $» months at times, at other times only for a fb® weeks. During the time he was on the <&&>n I took instructions from him day by &y» When I Trent on the station defendant &d not give mc any eat of books to keep ; he pat mc at work at onoe to manual labour. ■Hiere were books at the station and there *ere entries to be made sometimes by a cadet, sad at ethers by myself and Mr Reed, There *er« several cadets during the time I was there. Aβ a general rule Mr Reed used to do &c books himself. No particular instructions were given to mc to look after the books. The sadet used to do that. I do not recollect Reed fctkrng mc at first to do any particular thing Si reference to the books. The last few before I was discharged Mr Reed mc to bilance the whole of the books. llj H was in May, 1868, and I was dismissed "J Jbe 20th August, 1868. I think JJSJNiwe defendant eaid, " Mr Bovey, your {Wk &re getting into arrear," I think it is j*p t&ae to balance them." I do not rememlL?%t time that was. When defendant the last time to balance the books, alt 3? €r 1 had b ? Umced them he ehould F? 1 *^P i %e ray services any more. I told tfTki!!? f 3^>ai d be very happy to balance •Su *> get a person to assist mc, namS a "*»» <l uite agreeable. I "J™* 1 SursiW be however did not come, WI ttted m a*ed if he would allow mc to
go to Mr Middleton and get hie clerk, Mr Glen, to balance the books. Defendant said, " By all means; take a horse and fetch him at once." Hβ also said that he had no objection to Mr Glen staying in the house. Mr Glen came about a week after, and we (I and Glen) commenced to balance them for the past four years. I and Glen continued at that work for a week. Wβ then had all the stores ready to be entered into the " quarterly return book." I then went to Mr Reed and asked him for that book. He eaid, " I shall not give it to you before you give mc a written notice cancelling your agreement." I said, " Mr Reed, I certainly shall not do that," and after saying " We can do nothing more to the books then," he said nothing, and I left him. I did nothing more to the books after that. I asked defendant if he would allow mc to leave the station for two or three days on my own account, and he did bo. I also asked him, if he would not let mc have the Return Book, whether he would let mc have some blank return sheets. Defendant said, " what the hr do I want blank return sheets when I am on the station myself." I left on the Saturday, and on the Tueeday returned and resumed my work on that day and the day following as usual. On the 20th August defendant said to mc, " Mr Bovey, I want a pair of shears from the store to take to the sheep yard." I got the shears, and met him at the yard, and after we had yarded up the sheep defendant turned round to mc and said, " Mr Bovey, I don't require your services any more." Before that defendant had made no complaint or charge against mc. I said "What do you mean, sir ? do you mean to say, Mr Reed, that you do not require my services." He replied, " No, I do not." I said " Now, Mr Reed, do you or do you not require my services ?" He said " I do not." I said " Very well, Mr Reed, will you give mc a written discharge or a verbal discharge in the presence of these men." Defendant eaid " I'll d d coon give you that." I eaid " Very well, Mr Reed, on I what ground do you discharge mc ? " He said " Drunkenness." I referred then to some persons to witness that he had discharged mc, and said to him, " I'll take that as a discharge and leave the etation at once." During the j first three years Reed made no complaint against mc. The first complaint that I noticed was on the 12th May, 1868; he then commenced talking about fat, saying that I ought to save a lot of fat. I told him that it was impossible for mc to do so. He then said, " Now, Mr Bovey, you won't do for mc any longer, you had better look out for another place." I said that I had done all I possibly could, and that I had fulfilled my agreement up to the present time, and that I intended to carry it out. Between May and August Reed said to mc " Mr Bovey, I wish to have a look at your books." I said "Very well, Mr Reed, go in and have a look at them." I went to the office and took the quarterly return book and the ledger, and he again mentioned about the fat. He then said " One of the men (Flinn) is not at work." I said ** It is false, Mr Reed, he has been at his work for some time." Defendant said, " It is a lie." I said "Very well, Mr Reed, I'll prove it;" and I went to call the men, but he would not allow mc to do so. Reed then went and took the quarterly return book, saying " You can take it to Court now," and locked up the book. I was supposed to superintend the station. Aβ a rule I was out on the station a little after six in the morning. Now and then defendant used to sing out," Mr Bovey, are jpn noj going "ftfget cp- to-dejr?" I generally used to be employed up to 10 or II o'clock at night. During the day I had no opportunities afforded mc of touching the books. During the evening I was generally employed in filling up the men's time and giving out stores to the men, who usually oame for them at that time. The goods which came for the station's use were received by different people. My whole time whilst on the station was occupied in Mr Reed's business. I could not even get a Sunday to myself. I worked on Sundays at Mr Reed's request. I worked for Mr Reed more attentively than I shouldjhave done had the station been my own, and I did thia because bo many improvements were going on. Aβ a rule there was active employment for mc out of doors during the [time I was on the etation. On one or two wet days I was in the office at the books when defendant said, " You ought to be out amongst the men, it is of more consequence to mc than the books." Some time after I arrived on the etation, I saw some writing in the stock book. Defendant never called my attention to it, nor instructed mc to carry out what was written there. Dβfendant never until May spoke about my habitually neglecting my duties. About May defendant said to mc, " You must have d d impudence to buy a horse and keep it here." I kept the horse for about ten days and then sold it to a I shepherd named Manaon. Reed never said i anything to mc about sheep dead or missing. Defendant on one occasion said "Howie it you do not weigh the meat ?" I said " The men are continually grumbling about the meat being weighed ; ac the sheep killed are so poor we had better not weigh them." Reed said "Very well, you can do as'you like." I am now in Mr John Grigg'e employ, which I entered nine days after defendant discharged mc. I get £100 a-year, and am to get £120 if I give satisfaction. Mr Grigg has eaid that he is satisfied. I consider my loss over and above the last year's salary to be £200 for the scab. Mr Wynn Williams objected to this evidence being received, inasmuch as the endorsement on the back of the agreement formed no part of the agreement itself, but contained proposals made by Mr Reed ten days after the | agreement was signed, and was not binding ; and moreover all that plaintiff could recover on an action of wrongful dismissal was general damages; if other damages were claimed, they ought to have been set out as special damages. Mr Garrick said that the objection was taken too late, for if there was anything in it it rested on this, that the agreement was bad from want of mutuality, and the objection then ought to have been brought on demurrer. He also argued that the agreement and the endorsement must be read as one contract in fact; the endorsement was merely an additional term added to the agreement. His Honor overruled the objection, but at Mr Williams' request, took a note therefore. Examination continued —I claim £200 for keeping the sheep free from scab up to the time of my dismissal. Up to the date of my dismissal, the deaths, lost and missing, were lees than the average named in the agreement, viz., under three per cent, and I therefore claim £200. I also claim £100 because the deaths, losses, and missing sheep did not exceed after weaning four per cent per annum. I claim £50 on account of the average yield of waahed wool being close on four pound*. The
quarterly returns were generally made out by the cadets, and Mr Reed sometimes assisted. Sereral people had keye of the etore. Other persons besides myself served out the rations to the men. Cross-examined by Mr Wynn "Williams— I was at the station two or three days before I had anything to do with the books. I was put to work the second day. At that time there was no office and the books were in the living room lying on the table, and as I thought I should have something to do with them I looked at them. Mr Reed never formally handed the books to mc to keep. I have kept them with others. I kept the log book, which included the time account and also the transactions of the day. Sometimes a cadet kept that book. I do not recollect Mr Reed telling mc at any time that he would not pay mc a single penny unless I balanced up the books. I recollect some time before the final row I had a bill coming due, and when I asked Mr Reed for money he said, " Very well, I must see your account; when I see that I will pay you." I said " There is the ledger, you can see my account." I do not recollect Reed saying that unless I kept the books better he would not pay mc any more wages. I think that the bill you have referred to was due some five or six months before May. I told Mr Reed that the living room was the wrong place to keep the books in; he then built an office and kept the key himself ; I also had a key. I do not recollect Reed telling mc that I was not capable of being the manager of the run. j I got Glen to make up the books at my own expense, and I told defendant co. I got Glen to help becauee I had not had time previously to carry out the books in the elaborate way Reed wanted them done. I do not recollect defendant ever saying to mc, two or three months before I went away, " Now do take the books in hand, and stick to them until they are done." There was very little difference in the hours of business in winter and summer. There were cheep books for the shepherds to keep at their own huts, and I saw them kept as far as I possibly could. The book produced is one that was on the station when I was there. There are entries in this book in my handwriting; they are entries of the wool accounts for 1866 ; in fact, the wool account is entered from the time I arrived at the station. I have made an average of the yearly return of wool for last year from these entries. There is written in this book "To the manager of Charles Reed's property." [Instructions written in the book put in and read.] I read those instructions when I was at the station for my own amusement. The numbers of ewes, lambs, &c, are in the day book. Mr Reed did not give mc a discharge in writing at the yards, but when I came baok a week after to fetch my goods I found a note on my dressing table. That is it. Mr Garrick objected to the note as evidence, it was ex post facto, the discharge had taken place a week before. His Honor allowed the objection. Cross-examination continued—l do recollect Mr Reed repeatedly over and over again telling mc that I was not to stay as I was not worth my salt. Since May, 1868, he was continually complaining of little trifling things. Robert Glen, examined by Mr Cowlishaw, deposed that he assisted plaintiff in making up the books at defendant's station. Was there about a week working at the books. The cistern— e£~ accounts —fcupt— <frere~ WSB ' fflOSt elaborate. Witness left off making up the books because defendant denied the ase of the quarterly return book. Witness was balancing the books. The cash book and the ledger could be balanced without the quarterly return book, but the latter could not be made. When plaintiff asked defendant for that book, defendant said that he would not give it up unless plaintiff agreed to have his agreement cancelled. Witness made up the store book. Cross-examined by Mr Wynn Williams —I have had no experience of making up stock books on runs. I did not balance either the ledger or cash book, as I did not go into them. They would have been made up. It would take about three-quarters of an hour daily to issue and enter the stores. Charles Wesley Buller, examined by Mr Garrick, deposed that he was a cadet on Mr Reed's station, and went there in April, 1868. Mr Reed frequently complained of Mr Bovey, and some time after Bovey left Reed promised witness the management as soon as he was fit. Witness heard defendant refuse to give plaintiff the quarterly return book. A balance sheet could not be made up without that book. Three or four different pei sons had access to the store. Witness had served out meat on several occasions. Plaintiff seemed to be always employed about the station. Witness thought that plaintiff used to work very fairly. Hβ used to be in the office every evening, sometimes till 10 and 11 o'clock. Bovey used to serve out the storee every evening. Witness now kept the books, of which there were about seven in general use at head-quarters, irrespective of the books at the shepherd's huts. Witness thought that Reod had said, with reference to Bovey, " Poor devil, he does his best." Was still in defendant's employ. Cross-examined by Mr Nottidge —It would take a day to condense a week's work in the books —that would include the entries in the log book.- The balance sheet could have been made out from the butts of the cheque book. Those however were locked up with the quarterly return book. There were different handwritings in all the books. The books were handed over to witness in a somewhat slovenly state. A great number of accounts were not balanced. Witness had not since balanced them. Bovey's own accounts was not balanced. Witness did not try to balance it. Witness checked that account, and understood it, with the exception of one or two items. Bovey did not eeem much accustomed to bookkeeping. # Re-examined —There was one instance of Reed having been bailed up in bis room by the men to get their wages from him. Have never seen them sparring with him. Foster Fitzherbert Nixon, examined by Mr Cowlishaw, deposed that he was manager of the adjoining run to Mr Reed'e. Some time ago Reed showed witness bis (Reed'e) system of bookkeeping, and witness considered it too elaborate. John Grigg, examined by Mr Gamck, deposed that plaintiff was now in witnesses employ as assistant station manager. Witness's Btation comprised about 40,000 acres. Witness | had seen Mr Reed'e books. The system adopted in them was much more elaborate than that adopted by witness A man could, not properly manage such a etation as Mr Reed'e and keep such elaborate books. Cross-examined by Mr Williams—lf the station master looked after the improvement, then the manager would have time to keep tne books.
John Tucker Ford, examined by Mr Garrick, deposed that he was former manager, end delivered over the etation to Reed and Bovey. Never heard of any written instructions having been given to Bovey. Very extensive improvements have been made on the Austerfield etation since witness left. Witness had characterised Reed'e system of bookkeeping as absurd; there were too many books. Witness considered that one man ought to have kept the books, superintended the improvements, and managed the station, but then he would have very little time for himself. Cross-examined —Witness did not think that the time he spent on fhe books would average six hours per week. Re-examined—l was on the station for two years, and I balanced the books once during the year, and once after I had left. John Croft, examined by Mr Garrick, deposed that he was present at Reed's station in last. Bovey eaid, "Do you want to dispense with my services." Reed replied that he did. Bovey said, "What do you discharge mc for ? " Witness did not hear Reed's reply. Bovey then said, "You diecharge mc for drunkenness ? " Reed said, "Drunkenness for one thing." Bovey asked for a written discharge. Reed said, "If you will give up the key of the store and deliver up the property, I will give you a written discharge." The Court then adjourned until tomorrow (this day), at ten a m.
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Press, Volume XIV, Issue 1848, 16 March 1869, Page 3
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3,885SUPREME COURT-SITTINGS AT NISI PRIUS. Press, Volume XIV, Issue 1848, 16 March 1869, Page 3
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