ELTHAM COURT.

Hawera Star, Volume XLVIII, 16 January 1929, Page 9

ELTHAM COURT.

RESERVED J UDGEMENIS AN .NO URGED. CLAIM AND' COUNTER CLAIM DISMISSED. “After a, careful consideration of the 84 pages ot evidence I can find no merit in cue claim or the counter claim,”, saki Mr. It. W. Tate, S.M., during the course of a written judgement delivered at tne Kith am Court yesterday on proceedings originated by J. H.. Harrod, sliarcmilker of Eltham, against W. E. -Garter, fanner of Eltham. Reviewing the case the Magistrate said that Eiarrod had been employed by Carter as a sharemilker during the 1927-28 season and subsequently Harrod sued Carter for £9l Os 6d in respect of certain work claimed to have been done, and certain alleged breaches by Carter of a verbal argument concerning tlie employment. Carter counter-claimed for £221 11s 5d for various alleged breaches by Harrod of the agreement. After giving a detailed summary of the proceedings the Magistrate continued.

“To succeed, the plaintiff must satisfy tlie court that he has not been paid all that is fair and reasonable in the circumstances. He lias not satisfied me that he has not been so paid; on the contrary, I think that for the services he has rendered, he has been fully paid. The items of the claim are in my opinion not proved, nor are the items of the counter-claim. Both are exaggerated and. inflated. As the defendant put it if there had been no claim, there would have been no coun-ter-claim.

“The plaintiff will be non-suited on the claim, and the defendant non-snit-ed on the counter-claim. As to costs, lio costs will he allowed either side.’

Mr. P. O’Dea appeared for the plaintiff, and Mr. A. A. Stewart for defendant.

CLAIM PARTIALLY UPHELD

Another lengthy written decision was given on the claim preferred in respect of a milking machine by Rudolph Milesi against Ho nor a King. The Magistrate traversed the details of the sale of a farm property by one Mrs. 'O’Sullivan to one Carey who, subsequently in 1925 leased the property to the plaintiff, the last-named taking over the stock and chattels among which was a milking machine priced at £95.

When ho first took over the property Carey held it subject to a mortgage to one White, a second. mortgage to his vendor, Mrs. O’Sullivan, and a third mortgage collateral with an instrument of security to the Hawera Loan Co,

“Among the chattels mortgaged by the last mentioned security was a milking machine,” continued the Magistrate. The Hawera Loan Co., in 1922, exercised it® power of sale and Mrs. O’Sullivan’s husband objected to its selling this milking machine. Negotiations took place and the company ‘gave Carey a clearance’ on his transferring to it certain shares and on O’Sullivan paying £25 for the milking machine. O 1 ’Sullivan paid £25 to the company and became the owner of the machine.

“I find that at this stage Carey owned the farm subject to the first mortgage to- White and subject also to- a- reduced second mortgage to Mrs. O’Sullivan and that the milking machine was a chattel belonging to O’Sullivan of which Carey had the use upon the understanding that it was. to remain on the farm. The farm was- restocked by the defendant, Mrs. King, who had come to- the rescue when Alie Hawera Loan Co. had sold Carey up. “Carey carried on and a new engine for the milking machine becoming necessary, O’Sullivan found one at a cost of £45. and the defendant, Mrs. King, refunded him the £45 expended.. A new overhead puLsator being required, Carey put one in at a cost of £25. Mrs King, the defendant, is the mother of Carey’s wife, and as mentioned above, she had come to- the rescue and restocked the farm. Everything for the farm was bought in her name. . She received the cheques for the milk supplied. She paid the outgoings of the farm and Carey and his wife got money from her for their own purposes- when they wanted it. She kept accounts and the” intention was that when the accumulated profits reached the amount of her expenditure the stock were to- be Mrs. Carey’s.”

After traversing the lease of the property to plaintiff Milesi, the Magistrate proceeded: “Milesi considered the milking plant, which he had bought and paid for, not up-to-date, and consequently in July and August, 1925, added to it and had it converted into a plant of a more modern type at a cost of £7O. In April, 1928, Milesi sold out of the farm when he was forbidden by O’Sullivan, whose wife was still a mortgagee, to take the milking machine off the place. Believing that O’Sullivan owned it he left it there. When lie left it the machine was worth, according to Mr. John Guy, £3O to £35. “On these facts- Milesi claims, from Mrs. King the £95 which he paid for the machine, the £7O which he spent in converting it to another type, and interest on these sums. “As to the £95. I think he is entitled to judgement. He bought the machine in good faith from Oarey acting as agent for Mrs. King, the owner of the stock and chattels on the farm, and

lie paid Mrs. King for it. Mrs. King was- not in a position to- sell it; it belonged to O’Sullivan. It is true that both Mrs. King and Carey expended money on it, but that was for their own purpose-s in the more convenient and expeditious milking of the cows, and they spent the money with knowledge of the agreement with O’Sullivan. Milesi spent his £7O in converting the plant in the belief that he was improving his own property. I do- not think that he has any remedy against Mrs. King in respect of tlie £7O, nor do I think lie can recover interest on the £95.

“Judgement will be for the plaintiff for £95 and costs £ll 95.” Mr. A.; Chrystal. appeared for plain-; tiff and Mr. P. O’llea for defendant.