LAW REPORTS.

Dominion, Volume 1, Issue 68, 13 December 1907, Page 7

LAW REPORTS.

SUPREME COURT

CIVIL SITTINGS.

ARTIST v. NEWSPAPER company

ALLEGED BItEACH OP CONTRACT.

PLAINTIFF NON-SUITED,

Ihe Civil Sittings were resumed yesterday morning, His Honour Mr. Justice Button taking his seat at 10,30 o'clock.

Ihe hearing of the action Walter Armiger Uowring (artist) v. The New Zealand Times Company, Limited, was commenced.

The statement of claim sot out that, on May 3, 1907, tho defendant company dontracted and agreed with the plaintiff to cmploy him as a designer of posters and as newspaper artist. It was part of the contract that the Company should provide the plaintiff with sufficient work to enable him to make an income of not less than £S to £12 per week for a period which would be reasonable, taking into account the circumstances and the nature of the plaintiff's employment. It was also part of tho contract that, at the date of the making thereof, tile Company had a large quantity of work in hand which jt required tho plaintiff to execute immediately-. Tho contract also provided that tho Company would pay the plaintill tile sum of twonty-ouo shillings for each design, and that tho Company would furnish the plaintiff with sufficient work at that rate to enable him to earn tho salary beforementioned. On tho faith of the engagement and of tho representations made by the Company plaintiff abandoned his business in Christchurch and moved to Wellington. At the request of tho Company plaintiff rented a studio from them in thciy building at a rental of ono pound per week for twelve months, tho Company contracting to effect such alterations thereto as were necessary to make tho samo fit for the purpose for which it was required. Tho Company wholly failed to furnish tho plaintiff with work to the extent represented and agreed upon, and such failure continued up till the month of August last, when tho Company intimated to tho plaintiff' that it could not provide the work for h|m to do, and tho Company -gave plaintiff notico to vacato the studio at the end of August, and refused to employ him in and about the business and to do the work which tho Company had agreed to furnish and the plaintiff had agreed to execute. The plaintiff further said that tho Company failed to make alterations and provisions with reference to, tho studio as had been agreed upon. For a further cause of action plaintiff alleged that the representations wore made by the Company to the plaintiff with the intention that thoy should bo acted upon by the plaintill and that the plaintiff acted upon tho same. The plaintiff therefore claimed £200 damages for breach of contract to employ and for wrongful determination of employ(mont; £100 for sppcial damage in removing 'with his family from Christchurch at tho request of tho defendants and establishing himself in Wellington; and £25 damages lor broach of contract to malto the necessary alterations and provisions in tho studio so that tho samo should bo reasonably lit for the purpose for which it was required. The' dofendant Company, by their statement of defence, said that the plaintiff, on May 3, discussed with the then manager of tho Company's advertising department, A. S. Watson, th'o chances of an opening in tho business for a design'er of posters and newspaper artist'in Wellington, hut that it entered into no contract with the plaintiff nor was any agreement made by the Company or by Mr. Watson with the plaintiff to employ him as alleged. It was admitted that tho plaintiff rented a studio from tho Company at a rental of £1 per week for twelve months. Certain alterations as agreed on were made to the studio. Tho Company was nndor no obligation to furnish tho plnintiff with any work, and it gave notice to plaintiff to vacate his studio beoarfse. of'non-pay-ment by him of tho reserved rent. - In reply to tho second causo of action, dofendant denied that it had evor requested plaintiff to leavo his business at Christchurch and remove to Wellington, or that it had agreed to provide him with remunerative work as alleged, and, for a further defence,, unid that if any arrangement as alleged wore'made by A. S. Watson or any employee of the Company with tho plaintiff, which it denied, such arrangement was made without tho authority of tho defendant Company and was not binding upon it.

Mr. C. B. Morison appeared for tho plaintiff, and Mr. D. M. Findlay for the defendant Company. '

• Tho following jury was empanelled:— W M'lntosh (foreman), Thomas Avison, W. W Mannill, and Albert Robert Brown.

Mr .Morisdn briefly outlined tho facts relied on by his client.

'Plaintiff gave evidence that, in April or May last, when ho was residing at Christchurch, ho received a telegram from Mr; Dalston, secretary to the Company, stating that ho could get good poster work to do. Plaintiff replied that ho would come up to Wellington if sufficient inducement offered. Dalston tolegraphod to him to come at once. Plaintiff replied that ho would leave for Welling in ton days' toime, but Dalston wired:—"Better come immediately; secure; and return same night." On his ari\jv»l in Wellington next morning he called on Dalston, who took him down to Mr. Watson, manager of the advertising department. The date in question was Slay 3. Watson said tho Company was stuck for a man to do poster work, that the Company's previous designer was very seriously ill, and, consequently, that the Company must have someone to do their design work. Dalston was present almost throughout the interview. Watson also said that tho Company had bought up all the hoardings in Wellington, and that there was so much work ,in hand that the Company's machinery could not copo with it, and that tho Company had had to send to Sydney for quotations for printing designs. The previous designer had, Watson pointed out, made from eight to twolvo guineas per week. ' Watson asked him if ho would undertake the work, and ho agreed. Plaintiff intended to return to Christchurch for a few days, but Watson pressed him to stay and do three designs first. Watson was very pleased with his work, stating that he was the very man the Company was looking for. Whilst be was at work on these designs, Mr. Hoben, then general manager, asked him to make a pen-and-ink drawing from a photogapli of the Brooklyn tram accident. Hoben said ho was glad Watson had' made arrangements with plaintiff, also that plaintiff bad got to work so soon. Plaintiff settled in Wellington a week later. In reply to Watson, plaintiff said, on his return to take up his duties that he did not want a position on tho staff' as he was quite satisfied with the arrangements that had been entered into. Watson' asked him if ho would rent a studio from the Company, and lie agreed to write to tho Company that ho would do so if certain alterations were effected. Plaintiff had not earned more than 255. per week during tho three months he was connected with tho Company, yet ho was oxpected to pay 20s. per week for rent. When he complained that work was not coming in, Watson said that tho canvasser was ill, but that work would come rolling in shortly. Mr. M'Robie, tho new general manager, inspected the studio. On ono occasion, when Mr.; Carncross was present, Mr. M'Robie admitted that plaintiff had beon shamefullytreatcd, and declared that something must bo done. Plaintiff thought twelve months a reasonable minimum period of engagement. He tlid not receive anv work from the.Company for three weeks before he left. In bringing his family to Wellington keening them bore, and sending them back again ho had lost quite £100, Tho studio was not worth more than ss. per'week to him. The sum of £200, which he claimed for breach of contract, represented salary for six months at the minimum rate.

Cross-examined, plaintiff stated that at the time the telegrams passed between Dalston and himself he had made up.his mind, sooner or later, to come to Wellington. He thought there was an opening for an artist here and was afraid another artist might stop in' Tt was his intention to remain in Christchurch only so long as sufficient inducement offered. Tie thought that if ho came (o Wellington he would form classes in painting and drawing, also execute orders for'porHe told Watson that ho intended to

do private if he had the time. He would rather (Jo"..portrait work than poster work. Had sufficient portrait work offered he would have-' given up his .poster work. He would not have adopted such a> course within twelve months, assuming that sufficient poster work offered. As-a matter of honour he would have remained with the Company twelve months, provided that sufficient poster work had been-available.. , Norman H. M. to the defendant Company, deposed that- lie considered he was acting in the interests of the Company when lie recommended that plaintiff should be engaged, On the occasion when witness introduced plaintilf to Watson, tlio latter remarked that the-previous designer had earned from'eight to twelve guineas per week,-and theroWas no reason wliy plaintilf should not earn tho-same. .> The'following, question was ruled against: What, in your opinion,' is reasonable notice "to terminate such an engagement - as ■ plaintiff : entered into?" i. . -----—' : -

Cross-examined," witness stated' that he sent the telegrams to plaintiff in. his 1 own name, arid did not- copy the. samo-into the Company's books. He could not-eugago an employee without the-sanction of tho Company.

Counsel for plaintifflt wiis"Mr. : Watson who made tho engagement. I'urther cross-examined, witness stated that Watson had authority, to. engage plaintiff,, subject to approval'by. tho general manager. Plaintiff's'name did nqt'nppcar on.the pay-sheet of tho Company|<ys ■ This closed tho case for the' plaintilf. . Mr. Findlay moved. for a' nonsuit On the following grounds:—(lj'That no contract was proved, and.that t-here'wasno custom applicable or proved to-show that tho plaintiff was entitled to any notice. of termination of en-' gagoment, and-that . tlie "position.' was that plaintilf was neither Ijoiukl to- tho Company, nor tho Company:.to. plamtiff.for.any.defmito. time or definite amount of \york. ,On his own showing, plaintilf was to get wliat work was available, aiid was at liberty ' do. his own private work to any extent.. The'elements of contract were not present, the. arrangement, not- being reducible to a certainty. "(2) That it had not'been proved that Mr. Watson had any authority to mak'o.'tlio'contract, (if any), bfecauso it'liad been ,proveil' that contracts of this kind were to' bo made only with tho sanction of tjie general manager, or with tho approval of tlio Board. Mr. Morison, in reply, contended that the'ro was a representation'' as to "the airiount of work availablo \Vhich" would , bring iji a certain weekly income; and the..Company did not make that representation goo 3. His Hon9ur: In my'opinion,' it is quite out' of the province of the jury to make: a contract for tho parties. If it had been a case of actual employment—as a general as artist who was to bo in the eihplo's of tho Company for a-certain'definite time, or if lie was taken to bo' the artist generally of theCompany, tlion ho would- have'been entitled to reasonable notice of termination of liis"en-" gagement. Plaintilf was "not", employed 'in that ; ho was only'employed to 1 dosuch work as tho Coinpariy might give him— i.e., on piecework. Thei-'o" w.-is nothing whatever from which tho quantity of work could b» estimated. It was statod in the broadest terms that tlie'ro. was a- great-' quantity of work ready to 'b'6 done.' "-In 'my dpmi6n; under such circumstances, it is quite'out of tho provinco of ; the jury to' say what is reasonablq or unreasonable'notice. I think tho nonsuit would apply to botlrcounts of the statement of claim, fhere is interwoven into this claim a claim on a second contract for tlio use or rental of'tlio studio.' The evidence in regard to that does liot in ariywav'support the claim for damages uiider : that head. 1 lamtill' occupied tho studio-for a cortain time; ho did not. pay, the rent and left the proporty, and he now seeks to bring an action to force £25 against tho landlord for not putting it in repair. I don't think it can bo sustained. Defendant is. entitled to,'have a nonsuit, and I shall order a nonsuit accordingly. ■ ■ .< - Mr. Morison:' I submit-' tha't this: is not a caso in which costs should bo allowed'anainst plaintilf. -' .--■-■• His Honour: Your client' is,"ho doubt, very much disappointed. '• 't "' Mr. Morison: Ho was brought hero on representations which have been held to be not strong enough' ito constitute. : a contract! --I submit that each' pirty' should' bo ordored. to pay their own costs. " v . • His Honour (to' Mr:--Findlay): Perhaps your clients will- do; tho-magnanimous r ' Mr. 1' mdlay: If Your Honour puts.'ft'that w "y. ll 4 s a u'Tcent matter altogether. His Honour; If you like I shall give vou time to confer i-with your clients. Tho'question of costs will -bo reserved until the mornad jouraed s ' was ;'. disoilar g cd > and tho Court