“A CLUMSY AGREEMENT”

Gisborne Times, Volume XLV, Issue 4031, 10 September 1915, Page 2

“A CLUMSY AGREEMENT”

CLAIM UNDER WORKMEN’S LIENS ACT. AN INVOLVED TRANSACTION. JUDGMENT FOR PLAINTIFF. _ Mr. W. A. Barton, S.M., was occupied for some live hours yesterday at the Magistrate’s Court unravelling a most involved business transaction,~ in which three separate parties figured!. The ease was that of Frederick Thomas Lancaster v. Edward Oaks and Gerald Tate Bartlett, a claim for £46 12s 6d, for concreting work done. Mr Burma,rd appeared for the plaintiff, and Mr Dawson for defendant Oaks Mr Dawson said! it was a. claim under the Workmen’s Liens Act, and as it was of a peculiar nature he suggested defendant Bartlett should he made a plaintiff with Lancaster: Mr Burn,a,rd said lie diid not see how defendant would be benefited. The position was that Bartlett was to do work for £4OO for Oaks, and Bartlett was, in part payment, to buy a motor car for £144. It was found permission could not bo obtained to carry out the plan, and the original agreement was dropped, but Lancaster as a subcontractor in the meantime went on with-the concreting. Work was done to tire extent of £lO7 by Bartlett, who found, however, ho was unable to go on with the purchase cf the car. Oaks had previously soldi property for Bartlett, and Bartlett owed Oaks between £65 and £75 (tiro subject of a counterclaim).

After hearing legal argument His Worship said he did not think that defendant was entitled; to counterclaim, and he would have to put the counter claim on one side.

Gerald 'Fate Bartlett, contractor, said that he entered into an agreement with, defendant Oaks to make alterations t'O his Karajro. Tho first arrangement was that witness was to do certain work at defendant’s garage and private residence, amounting in alb to £390,-but it was later decided; to drop the alterations to the residence and confine the' work to tho garage. Oaks luad a second-hand motor ear, which it Vas suggested, witness should take for £144, as part payment- for the contract. At this time witness owed defendant about £65. Later defendant agreed that witness had 6.m0 work at the garage to tho value of £lO7. Plaintiff was a sub-contractor under witness, and put down the concrete floor. Oaks suggested plaintiff as sub-contractor, and instructed him in connection with the work. By Mr Dawson: At witness’ suggestion, it was arranged that Oaks should satisfy his counter claim out of the £lO7 due to witness and band Lancaster tho balance. At first Oaks was not favorable to this suggestion. Witness owed defendant on • a P.N.. and defendant suggested that witness should do certain work at his residence in settlement of the amount. Tho suggestion that witness -should buy the car was purely a tentative proposition, which was never ratified. Defendant, later told witness if witness could not see In's way to take the motor car he (defendant) could not see his way to spend much upon his garage. This conversation took place uear the end of the work. Witness did l not give Oaks an estimate of what the works would cost, and no price was stated. Witness thought there would bo enough coming from the contract to 'pay Oaks’ contra account and Lancaster for the sub-contract. Oaks did not say that lie was not prepared to pay any money to Lancaster. Oaks said that if witness would do the front of the shop lie would hand; the car over to witness.

Proceeding under cross-examination bv Mr Dawson, witness! said he knew a Mr Archibald, a baker, and offered Oaks’, second-hand car to him. Witness also offered the car to Mr IN sere ar. Oaks did not offer witness a commission to soli the car. Witness had, seen the work completed by Lancaster, and was satisfied with it. To Mr Burns rd: Witness considered that plaintiff had com file ted his contract with witness, and”was entitled to the amount he claimed. There was never any definite arrangement that witness should take the ear definitely and do certain definite work in return. To His Worship: Witness had never had delivery of tho car. and had never at any time considered lie owned the ear. George Smith, builder, said he hod inspected the concrete yard at Oaks’ garage, and considered plaintiff had made at good joh. If the work hod been done for witness he would have been quite satisfied. Charles Martin Tavlor, builder, said he examined the yard in company witih Sir Smith. In witness’ opinion it was a good iob. Frederick Thomas Lancaster, the plaintiff, said that under instructions from Mr Bartlett he entered into a contract for making a concrete yard at- defendant’s motor garage. The contract price was originally £45, hut he was instructed, by Oaks’ manager to do extra work, which brought the price up to £46 12s. Oaks was about every day while the contract was in progress, and made no objection, at any time to bow the work was being done, 'Flic first time be beard a complaint was through his solicitor about three months’ after the work had b°en completed. About a fortnight after the contract was finished, Mr Oaks told witness he was well satisfied with the work, and considered: witness should bo paid for it. Ho advised witness to see Mr Bartlett. As a result of wliat Bartlett told witness, witness saw Oaks, who told him that ho had received a letter tolling him to pay £2O to witness. The latter took witness to his office, and discovered that the £2O was earmarked, and he could not pay it over, to witness. Later he told witness that the £2O would he at the office oil the following Monday morning. Witness called, biT Oaks told him there was no money for it. Witness then placed the matter in his solicitor’s hands. Oaks told witness that he would render' ' him every assistance in getting his money. By Mr Dawson,: Oaks never ( toid witness that ho did not recognise any responsibility under the contract. This closed the case for the plaintiff. Mr Dawson, for the defence, said that the position was that Bartlett owed Oaks a contra account, and it was with, a view of squaring this off that tlw work had; been done at the garage. The position they took up was that upon tho payment of tlw balance the car would be handed .over to Bartlett. On Bartlett’s own admission ho had tried to, soil the car.

Edward! Oaks. the cTefeudia nt, said the first of the arrangements with Bartlett was entered into about August, 1914. Bartlett gave him a quota of £lO5 for alterations to his private residence. Bartlett at this time was indebted to witness to the, a mount of £6O, £35 of which was subsequently paid. Witness agreed to tlie price of the alterations, and agreed to pay the difference in cash. Bartlett agreed to do the job, but for some reason or other did not get on with the work, which therefore lapsed. Some time in November, 1914, Bartlett came into witness’ garage, and they discussed the price of second-hand cars.' Witness suggested' that Bartlett should carry out certain alterations to witness’ garage in return for . a car. Bartlett asked' adhat a car would cost, and witness told him he wanted! £2OO for one. Witness drew up a statement’ of the alterations he wished carried out .at the garage, and; asked Bartlett to give him an estimate of tlie cost. Bartlett did so, and put the price at £290, Witness replied that he was not. prepared to spend that much on alterations. Witness not from Bartlett an approximate' estimate of what the flooring would, cost, and witness told him ho had better got on with the alterations right away, Lancaster shortly afterwards saw witness/ and aes&od

him if ho was carrying out alterations. Witness told him lie had better sec Bartlett, and also told Lancaster that Bartlett was taking a car in exchange for tho work. Lancaster lai.tr proceeded with the work. Towards tho end of May Bartlett brought an account for £lO2, but witness told; him ho was not in a position to pay Lancaster. lie suggested that Bartlett should 1 put in. two Shop fronts, and tliis would pay olf the price of tho car. It was arranged that the contra account, £65, should stand over, and that Bartlett should clo some work for witness at a later date. Bartlett said this would help him out of his difficulty. Witness was to get £l5O far the car, instead of £2OO.

J-lis Worship said that if there had been a little writing it would have saved all this trouble. Witness, continuing, said that not until after these proceedings had been started' had Bartlett ever denied that lie had agreed to’ take the car. Proceeding, witness said he was instructed by Bartlett to par £45 to Lancaster, out of £IOO which was coming to him. Shortly afterwards an order was made on him by Bartlett to-pay Aickin and Son, timber merchants, the £45, originally intended for Lancaster. The latter called a few clays later, and asked if the money had conic in, and witness replied that it had not. He told Lancaster that ho had since received an order to nay Aickin and Son instead of himself. Lancaster asked what he could do about the matter, and Lancaster and witness went together to see Bartlett. 'Tho latter said that the money would be paid to them on Monday. Bartlett said he would arrange to see Air Walker, of. Aickin and Sons, and got him to agree that £2O of the £45 paid to them could go to Lancaster. The £45 had never come in yet. On several occasions after the arrangements to pay tlio £2O, Lancaster had come to see witness, and: each, time witness had told him that the money liad not come in, and, therefore, witness could not pay him. By Air Burnard.: Witness’ proposal was that Bartlett should do about £2OO worth of work at the garage, and take the car as part payment. There, was no definite arrangement as to tlio value of the work lie was to do, but it would be about the value of the car. Bartlett had done work to the value of £lO7, and was not in a position to do more.

Air Burnard: What is the position of the car? You are hanging on to the car and to the money as well. Witness : The position is that Bartlett can have the car as soon as he pays me the difference between £lO7 and £l5O.

His Worship: Whatever the position, the- arrangement is a very clurnsv one.

Proceeding, witness said there was a definite arrangement that Bartlett was to take tho car.

John Ancurin Jones, a partner of defendant’s, said he attended: to the hooks of tbe fii-m. He corroborated Mr Oa tes’ evidence regarding plaintiff’s applications for payment. Witness heard Oaks and Bartlett conversing regarding the car several times in the office, and Bartlett spoke with an air of proprietorship. He heard the price mentioned, and the method of payment, and the impression left on j his mind was that the ear was to be taken as part payment of the work Bartlett was doing for the firm. William George Frederick Bignell, a motor mechanic in the employ of defendant, said that in suite of what Air Smith had said, he considered that the yard was still unsatisfactory. Mr Smith -did not flood the yard. He only put a couple of buckets of water upon it. . Charles William Howard, civil engineer. produced a plan showing the levels of Air Oaks’ yard. The channel would take the rain water as long as it was kent clean. By Air Burnard: The Borough Bylaws - stipulated 1 that a grease trap must be provided in all motor garages where cars were cleaned. Frederick H. Forgo, architect, said that he had inspected . the yard, and considered the concreting work had been well done. He did not consider that the present channelling would carry off the water during a heavy rainfall. As an architect witness Would not have passed the yard unless a sump had been put in. It wrm.d cost about £3 10s to giro the necessary fall to let tho water away fast enough. Air Dawson, after reviewing the evidence at some length, said that not until these proceedings had been sei up had Bartlett repudiated his, contract to take the car. On whose skU were the equities in the case? he asked Was the defendant to be asked to pay £46 for Bartlett, who owed him a considerable sum. The equities, he submitted wore all with defendant. Afr Burnard said that when there was a sharp conflict of evidence and in this raso it was well to weigh the witnesses. On one side they liad the evidence of Air Oaks and his employers, while on the other they had a number of independent witnesses. His Worship said tlio nuestion was, Had there been an agreement to take the car as payment for the work done? Air Burnard, proceeding, said that defendant bad adduced no evidence to support his statement that Bartlett bad agreed to take tlio car in part payment. J-Tis Worship said that there was a great deal of conflicting evidence in the case. He was of opinion that no definite agreement had been come to. Plaintiff had carried i cut his contract, and he would have, to give judsnieiit for the amount claimed:, £46 12s 6d. with Court costs £1 17s, solicitors’ fee £3 7s. and witnesses’ expenses £2.