LAW REPORTS.

Dominion, Volume 2, Issue 465, 25 March 1909, Page 9

LAW REPORTS.

SUPREME COURT. CITIL SITTINGS. CLAIM AGAINST EDUCATION BOARD. Argument with respect to the case' ol Staw ton and King, contractors, v.-tho Wellington Education Board was heard by Mr. Justice Cooper yesterday. . This was an action in connection ivi li a contract to remove a school from one site to another in the Upper Hutt district. AVhen plaintiffs had performed tho initial portion of he work, tho town board refused to allow the building to be re-erected until it had been approved under the by-law. It was provided in ?h contract that all decayed t™he™ should lio replaced by heart timbers. Plaint fls alleged that a largo proportion of the timber in tie building was worm-eaten. According to them " decayed" timber did not include wormeaten pieces. When they discontinued operations, defendants entered into possession ot tho works, timber, etc., belonging to plaintiffs, who now sought to recover £111 15s. lid. Tho defence to the action was-that pari: of the building was blown down by a gale. Delomlnnts denied that they, gnvo any assurance to plaintiffs' that no permit to re-ercct the buildin- was necessarv. Plaintiffs, they alleged, wrongfully refused to replace all decayed timber and to carry out tho contract in accordance with tho plans and specifications. . On behalf of the defendant board, Mr. Johnston submitted.that the specifications provided for worm-eaten timber being replaced by the contractor. It was tho duty of the contractor to obtain the permit from tho local His Honour raised the question as to whether tho contract hatbnot become impossible to perform by the fact that the gale practically destroyed the building; Plaintiffs could not then recover on quantum meruit, but only for the return of their deposit and tho timber that had been taken possession of by defendants.. Assuming that plaintiffs had never been interfered with by any demand of the town board to replace worm-eaten timbers, they could not have carried out the contract without incurring a loss of at least ,£2f!o. ' It was tho duty of plaintiffs to have obtained tho permit to remove the building. • , Mr. Levi,, for tho plaintiffs, contended that, there was.no impossibility of performance of tho contract bv reason of the damage wrought by the gale, but merely increase of expense. The contractors wero not compelled to replaca worm-eaten timbers. The duty of providing for that contingency lay on the board. His Honou? said he would take time to consider his judgment."

MAaiSTRATE'S COURT. POLICE CASES. (Before Mr.W. G, Riddell, S.M.) Two cases.of insobriety, both against first offenders, were dealt with yesterday. Both of tho men charged woro convicted and fined 55., default 21 hours' imprisonment. VAGRANCY AND BAD LANGUAGE. Two charges, one of. using obscene language and the other of being idle and disorderly, wero brought against Wm. Simpkins, to both of which ho pleaded guilty. Sub-Inspector Phair stated that accused was arrested in Sage's Lane on Tuesday night. He had been quarrelling with a woman named Butterfield, and had used the' language complained of. In respect to the second charge, the sub-inspector stated that, tho accused did no work. On the first charge his Worship sentenced accused to 14 days' imprisonment, and on the second to three months, the terms to be concurrent.

AWAITING. A REMITTANCE.. The companion of the last accused, Elizabeth Butterfield, was brought before the Court on a charge, of being..drunk, and also of being an idle nnd disorderly person within the meaning of the Police Offences Act, in that sho had insufficient lawful means', of' support. She pleaded guilty to both charges, 1 and statbd in mitigation of the second that she was in receipt of a week. from . a distant relative. The sub-inspector reported unfavourably as to accused's reputation, so his Worship . remanded her,till March 26, in order that'definite information might be obtained regarding' the remittance which she stated she obtained. On the charge.of. drunkenness accused was convicted and fined 55., in default ,2-1 hours' imprisonment. AN OLD OFFENDER. Convictions to the number of twenty-nine etood against the. name of Annie Cain, who was charged ■with being idle and disorderly. It was also i stated that she had not done any work for six months. She was sentenced to' three months' imprisonment. CIIAKGE AGAINST A YOUNG WOMAN. A well-dressed yomig woman named Lizzie Leith, alias M'Laughlin,. plended not guilty to charges of being drunk in Sago's Lane on Tucs, day night, and being an idle and disorderly person, within tho meaning of ' the Police Offences Act. On the application of Mr. Kirkcaldie she was remanded, 'to appear on March 31, bail being fixed at MO, with one 6urety of .£lO, or two of £ r o. ALLEGED HOUSEBREAKING. A plea of not guilty was entered by Alfred Bnrnecle to a charge of breaking into the Ngahauranga Railway Station and stealing therefrom one blue mackintosh, one blue vicuna coat and a pair of gloves valued al £A 4s. Gd., the property of Richard Kearney. Chief-Detective Broberg stated that accused had been arrested only tho previous day, and he would therefore ask for a remand until March .31. This was granted. ALLEGED CONCEALMENT OP BIRTH. - .-\ cliarjjo of endeavouring to conceal the birth of her female child was preferred against a young woman recently employed at Karori. Mr. Dunn appeared for accused, who pleaded not guilty. After hearing evidence similar to that given at the inquest, his Worship dismissed the case.

.CIVIL BUSINESS. • (Before Dr. A. M'Arthur, S.M.) A FENCING~DISPUTE. Argument was heard by Dr. M'Arthur vesterdny in' the case of J. A. Lutz, acting as administrator in the estate of Frances Sarah Lutz, v. Charles Henry Jones, painter, of Miramar. Two claims wero made, one for half cost of the erection of a fence, and the other tor damages for the alleged removal of a fence from the proper boundary on to plaintiff's land. Mr. Jvcnye for the defence, raised nonem points and Mr. HUgibbon, for plaintiff, replied that the case was not brought under the I'cncing Act, but under a contract made between the two parties. Mr. Neave deni-d that such a contract existed. His Worship planted a further adjournment to enable additional evidence to be called. CLAIM FOR ELECTRIC FITTINGS. Tho case Cederholm and Toilcy, electrical engineers, v. Meyer and Illingivortli, builders and Kirkcaldie and Stains, Ltd., was resumed] and tho afternoon was occupied in- hearing evidence in regard to accounts. Mr. Men"teath appeared for Cederholm and Toiler, Mr IVeston for Meyer and Illingworth, and Mr. liordman for Kirkcaldie and Stains. Tho claim was one for electrical installation work done in connection with the erection of the new Occidental Hotel. After the conclusion of the evidence.his Worship intimated that he would deliver judgment on Thursday week.

. CLAIM FOR OVERTIME. WHAT IS A DONKEYJiAN? A case was heard before Dr. M'Arthur, in which the Wellington section of the Australasian federated Seamen's Industrial Union of porkers claimed £10 from the Wellington- and Wanganui Steam Packet Co. as a penalty for an alleged breach of the Arbitration Court award, in that the said company employed Ernnk Lerry. lamptmnmer of the Stormbird in Mav and June, IMS, at Wellington and Waiiganui, to raise steam on the donkev-boiler for cargo purpose, prior to S a.m., and refused to pay overtime m accordance with tho award. A second case against the same company for employing Charles Moore on board the Huia in June in a similar manner was also heard. -Mr. Young appeared for the union, and Mr. Kei'dman for tho company. In opening the case for plaintiffs, Mr. Young stated that Berry and Moore were A.B.'s in Tcccipt of ,£1 per month extra for acting as lamptrinuners. It had been tho custom for tho laroptrimmer to get up and raise steam be-

foro S a.m., and it was tlio usual thiiiß for overtime to ho paid for sneh work. The men had kept statements of the overtime worked, Berry claiming &} 2s. Gil. and Moore .CI Gs. IOJd.; tho. rata of overtime was Is. 3d. per hour. Tho defendant company had refused repay these sums, and tho matter had been reported to tho union. Mr. Young said that no doubt it would bo argued that tho men wore ilonkeymen to all intents and purposes, but ho contended that thev were not. A donkeyman was not a seaman, but a superior fireman. In ovidenco Berry nnd Moore said that they had claimed overtime- for tho periods stated, but payment had been refused. Evidence was also given to the effect that it was customary to pay overtime for raising. steam on uoulceyhoilers before 8 n-ui. . In reply to n question put by Mr. Herdman it was stated that it was tho general custom for men who signed on as lamptrimmers nml \.B.'s on small boats to attend the donkojboilers and act as donkoymen. Mr. Young gave evidence enumerating ho vessels on which overtime is .paid. He stated that tho only vessels. on which overtime■ uas not paid were the Iluia, Stnrmb.rd, an Ivah For the defence, Mr. Herdman contended that tho extra JEI paid to an A.B. for whiig as lamptrimmer was supposed to co\ei the extra work of raising steam It had been he 1 also that men signing on for small boats Mete not expected'to confine themselves strictly to Hie duties for which they signed on. Mi. •Herdman quoted from the award to "how that tho men could not claim donkeymens ovei. rime until steam was Taised. The award laid down that overtime for donkeymen did not commence until tho time steam was ordeiel: to be ready. It was the custom for deck-hant.s to do all the work necessary in connection with th Svtt"ftv.n by Mr. Kelly, manager for Eichardson and Co., sWpownew. Namer. Cantain P. Mlntyre, master of the Stormbinl, nnd the engineer on the btormbird, Mr. 0. \\. reserved until Monday next A similar case against, the owners of the s.s. Kahu was held over, till this morning.