MAGISTRATE’S COURT.

Hawera Star, Volume XLVIII, 13 December 1924, Page 8

MAGISTRATE’S COURT.

LAMBERT v. FRYER

JUDGMENT DELIVERED

The hearing of this ease, in which Lambert claimed £2B 12s lid balance ot milk moneys owing and Fryer counter-claimed lor £1(32 for damages, was concluded on Thursday afternoon, and alter a short retirement the Magistrate, Mr. Barton, S.M., delivered his judgment. ' The claim being admitted by defend-, ■ant, judgment was given for the amount claimed and costs. As to -the counter-claim, the Magistrate remarked that there were claims under seven headings, and in each of these claims the onus of proof was on the defendant. Fryer. He was satisfied that the relation between the parties was that of master and servant, and that the agreement for share milking was an oral agreement, and the fact that some time had elapsed between the date of the alleged breaches of the agreement and the bringing of the counter-claim had given him some difficulty. Dealing with the item for neglect of lucerne (£3O), the Magistrate held that it was proved that the lucerne was not a good .cron and that the plaintiff did all that he might reasonably he expected’to do in the circumstances. He was not an expert, at making ensilage and had engaged an outsider to do the work who had previously done similar worl>: successfully. Mr. Goodson had seen this stack, but he had examined it after Lambert had gone out, and he thought that if any damage had been clone to the stack bv cows it was probably during the period when the farm was emptv. between Lambert’s going out and the new share milker coming in.

The claim for pigs (£10) the Magistrate held bad not been proved. Acs to the alleged failure to sow down certain land in grass, there was no clear definition of what the obligation of the plaintiff was. and therefore defendant failed on this counterclaim also. There was a similar failure to prove any loss in respect of. the claim for negligence of plaintiff in drying oil cows before they should have been dried off—£3o. The remaining claims were in respect of negligent treatment of two acres of carrots and half an acre oi

mangolds—a. total of £BO. This part of the claim occasioned him the greatest difficulty. The evidence pointer to a of neglect and failure to weed, but he must hole that the defendant had not discharged the onus that was upon him. There was a. great deal of cor:diet of evi deuce; several witnesses thought there was a good fake of carrots and mangolds and others said that there was wot. He felt that he conk l not accept one set of witnesses, rather than another. 'There was also conflict o; evidence on this point between plaintiff and defendant, and the plaintiff’s evidence was supported by that ol Locker. Jn the circumstances he must. •hold that defendant had failed to prove this claim also. 'Hie Magistrate added that he had

had a number of share-milking case; before him. and he was satisfied that there was only one way in which an owner c-onkl succeed in bringing sucl a claim a* tliis against a. sliaremilker. First the owner should enter into i. writ-ton . agreement with the sharemilker in hicli would be defined-the rights and duties of each party, secondly, i...e owner should be prompt in seeking his remedies. If a. breach should take place during the agreeSinn as for instance lairnie tc. ween, the owner should not ailow the season to run out before making anj •Oiiij)!i‘.;: I, but be should aL un>e write

a letter and put on record Lis lequuomems and his compiaint, so that the sliaremilker would know immediately that the owner .was taking exception to the way he performed his duties, but to come to Court in December as tu what had happened in January would always result in a condiet of testimony, and after a lapse of time it was always difficult to arrive at the true evidence. In the

present case a. further difficulty was that the owner was not n farmer, and at the expiry of the milking season was not at hand to take over deliverv of. the fairm and to settle matters that might later on give rise to a dispute. Tn t r -e ’’uP-mert must be for the rV’Ril for both Maim and "’'Mintor-Maim. toother with costs of the action and witnesses’ expenses. The nWinGff was represented hMr. F. n and the defendant bv Mr. G. .T. Bavlev.