ROBERTSON BROS. v. WILSON.

Clutha Leader, Volume XXIV, Issue 1222, 3 December 1897, Page 5

ROBERTSON BROS. v. WILSON.

#_ In view of tho fact that Mr Stewart, on behalf of the plaintiffs, intends to apply for a re-hearing in the above case and also of the fact that more than ordinary interest has been taken in it, we publish Mr Hawkins' decision in full. In our report of B. Robertson's evidence it was stated Wilson said if LlO didn't pay he would give Id a skin. The reference to ld a skin was a mistake. The evidence for the defence set up in this action is to some extent apparently self-con-tradictory, and it becomes necessary, therefore, to examine it carefully. Wilson's evidence and that of his two witnesses is largely directed towards an apparent attempt to justify a dismissal of the plaintiffs. (1) For neglect of work after the factory closed which was on the llth September. (2) For misconduct in laying the poisoned oats under the sod— that is laying them on the grass and turning the sod over on them— so that it would appear that the poison had been laid and eaten. But then defendant claims, and his evidence is distinctly directed to proving, that he never dismissed the plaintiffs at all ; that he simply refused to give oaten chaff for their horse while it was not working and offered grass instead. That was on the 23rd October. On the 29th October the plaintiffs came for oaten chaff and the defendant refused to let them have it. The defendant admits that he said " ono n*)an could do the work," but that he qualified it by saying " if the two could afford to lie idle half the day ;" that he not only did not dismiss them but refused to dismiss them and told them to go j and do their work. In this statement Eyrie confirms the defendant's evidence, J pressed Ryrie as tq whether he had told me everything because I desired to test his reliability. But from my observation of the man and weighing his evidence as a whole, I do not think that he was untruthful or attempting io favour hjs cinplqye****. T h P Velat}-a.n by plaintiff, Robert Robertson, to defendant of what took place pn 29th October ancl the heated nature of the interview, ancl especially the words the former said, on re-examination, ; that defendant used, were sufficient to justify Eyrie's remark that " if defendant had spoken to him like that he'd leave." But those words imply in themselves that defendant hacl not dismissed the plaintiffs, since, if he hacl dismissed them, there could have beon no question of the plaintiffs taking the initiative and leaving him. Now coming to the plaintiffs' case ; they admit that the first trouble arose over the horse feed, and they contend that . that in itself was a breach of contract by defendant. Rut qvji.n if H were, It was not a breach which prevented them from performing their part of the contract. To begin with — the contract was to find feed for the horse. It was not specified what feed, and it does not seem at all unreasonable that, at the find of October when the horse was not | doing any real work on the contract, he should be turned out to grass instead of being fed on oaten chair. But even if the word [ <» fund " Is to be construed " oaten chaff," the refusal to give it while the horse was doing j little or no work relating to the contract was I not an act of the defendant which prevented the plaintiffs from fulfilling their contract.' | Then the plaintiffs were to keep down the rabbits to the satisfaction of the inspector. It is true that by the rules of the English High Court of Justice, compliance with this sort of condition, precedent is implied unless expressly denied by the plaintiffs in the pleadings. But here tbej-e are no plead-. ings, and no suoh rules anc} it rests therefore on the plaintiff to prove the condition precedent, that is, that they keep down the rabbits to the satisfaction of the inspector. The inspector was present and they could bave called him and I niust assume that they wq - e of opiuion tha} hi?, evidence woidd be ac] verse to them. In this view it becomes necessary for me to consider the evidence of the defendant as to plaintiffs neglect of work. J api of opinion that the plaiutifl's have not proved any breach of agreement by defendant justifying them in throwing up their contract and that they haye not proved compliance with the con-

dition precedent necessary even to establish any quantum- meruerunt as against the LlO and that the/ had not proved that defendaut dismissed them. The defendant having paid into court the sum of 15s 9d, and I find that that is all thafc is due on account of the particulars of demand. But there must be judgment for costs assessed on the sum of 15s Gd, and I give judgment accordingly.