SHAREMILKER’S CLAIMS.

Hawera Star, Volume XLVI, 18 May 1927, Page 2

SHAREMILKER’S CLAIMS.

JUDGMENT PRONOUNCED. COUNTER-CLAIM FAILS. Mr R. W. Tate, S. M., at Eltliam yesterday delivered his reserved judgment in the case in which Isaac Norris, sharemilker, claimed from Maurice Fitzgerald the sum of £3B 13s Od, balance of a sum made up of several items, some of which had been specifically paid by the amounts brought to credit. “Of the balance claimed,” stated the judgment, “all except a sum of £1 claimed for interest, which is not recoverable and another item of £5 8s 7d, depends upon the oral contract of service, for the year ending 30th June, 1926, which at the time it was entered into, could not be performed within a year. The defendant contends that the plaintiff cannot succeed, as the agreement for the year ending June 30th, 1926, on which he depends, was an oral agreement, and, by virtue of the Statute of Frauds, no action can be brought upon an oral agreement that is not to be performed within the space of a year from the making of the agreement. With this contention I agree. “The relation of the defendant and the plaintiff is that of master and servant; the agreement of service in question is an agreement of service. It is established law that an agreement of service is within the statute. In the present case there is an oral agreement, extending over a year made upon the terms of a previously existing written agreement, that written agreement being made between the parties to the action. The previously existing written agreement was in this case, the expression of the terms of the service, but the actual agreement of service was the oral agreement and this is what the statute forbids. “The item which is not affected by the Statute of Frauds is a claim for £5 8s 7d for wages for sheep-fencing work. This claim is outside the barred agreement ancl is recoverable. I find that the work was done,, that it was not in connection with the dairy farming, in respect of which, the plaintiff was’ employed, but in making ready the farm for a change-over to sheep, and that the amount claimed was reasonable. The plaintiff was entitled to recover £5 8s 7d. ‘The defendant counter-claimed for £65, £SO of which was for alleged breach of contract in respect of noxious weeds, and £ls for the value of winter milk or cream which he alleged the plaintiff sold and did not account for. Both claims, like the plaintiff’s claim, were barred by the Statute of Frauds and the defendant could not succeed. It was contended that the claim for milk or cream sold in the winter months, and not accounted for, was not .barred by statute; that being so, the plaintiff’s version of the transaction was as believable as the defendant’s and the claims has not been proved to the Magistrate’s satisfaction.” . Judgment was entered for plaintiff for £5 8s 7d and he was non-suited on the balance of the claim. On the counter-claim, defendant was nonsuited. ;