ACTION AGAINST PUBLIC TRUSTEE.

King Country Chronicle, Volume XVIII, Issue 1858, 6 September 1923, Page 5

ACTION AGAINST PUBLIC TRUSTEE.

FENCING CLAIM DISPUTED. JUDGMENT FOR PLAINTIFF. A case presenting some unusual f eatures was adjudicated upon by Mr F. W. Platts, S.M., at the Magistrate's Court on Tuesday, when C. K. Wilson, farmer, Pio Pio, proceeded against the Public Trustee, as executor of the estate of J. W. Ellis, deceased, for fulfilment of a verbal contract to pay for certain fencing, on the part of the deceased, some time prior to his death. Mr H. T. Morton appeared for the plaintiff, and Mr J. F. Reid, of Hamilton, for the Public Trustee. The plaintiff claimed £6O for the erection of and supply of materials for 30 chains of fencing at Pio Pio in July and August, 1917, at the request of the defendant (since deceased). The plaintiff further claimed interest at 6 per cent from August, 1917, namely £l9 16s. THE PLAINTIFF'S EVIDENCE. Charles Kendall Wilson, farmer, Pio Pio, said he sub-leased a property from J. W. Ellis, the original owner, who had sub-let the property to a Mrs Hunt. Witness therefore really sub-leased the property from Ellis and Mrs Hunt. The property comprised 6000 acres, divided into two blocks. The fencing was done between a portion of the two blocks. It was agreed that Ellis was to pay for the fence if witness erected it. Ellis, at a later date, again directed witness to erect the fence, promising to pay his share. This amounted to 30 chains, and witness claimed £2 per chain for its erection. It was an out-of-the-way place, and at the time materials and labour were very highly priced. Some time after, Ellis died. Witness did not remember sending any account, owing to a fire destroying his home and all his books. He had since approached the Public Trustee many times without result, and was now forced to take action. No offer of settlement had been made to witness personally. Ellis was always regarded as the controller of the property. Witness had a high regard for Ellis, and was sure the amount would have been paid had he remained alive.

Cross-examined by Mr Reid, witness affirmed that Ellis had sole control of the property, though it was owned by his wife. He served notice on defendant, under the Fencing Act, sometime before the second conversation agreeing to the erection of the fence. He did not want anything that was not fair. He considered he was entitled to the money, and that was the reason of the action. Witness knew Ellis was under treatment for illness, and considered that was the reason payment had not been made within a year of his death. £2 was a reasonable charge per chain at that time. He would not consider 30s per chain a fair price for fencing to day. He admitted being willing to take 30s per chain in 1921, or £4B in all in full settlement of the claim. This was because he wanted to meet the people concerned.

Counsel endeavoured to obtain an admission from witness that Ellis was acting as agent for Mrs Ellis, but witness was adamant on the point that Ellis had absolute and sole control. LEGAL POINTS RAISED. Counsel for the defendant did not for one moment question the bonafides of the plaintiff. As solicitor for the Public Trustee, it was his duty to see that any liability on the estate of a deceased person was thoroughly well founded. He quoted authorities to prove that the unsupported evidence of the plaintiff was not sufficient to prove his claim. There was no record of any contract, and the deceased man's- relatives denied all knowledge of any agreement wherein defendant was to pay plaintiff for the erection of the fence. He also would contend that Ellis was acting as agent for the'owners of the property, and therefore was not personally liable. Mr Reid addressed the Court at great length, quoting numerous authorities in support of his contention that under the circumstances there was no proven liability against the estate of deceased.

Mr Morton also addressed the Court at some length, producing correspondence to show that Ellis had always been regarded as the sole controller of the property, paying and receiving all moneys in connection with its management. His Worship, in giving judgment, said he must hold that Ellis had not acted as agent for any disclosed principal. Two adjoining owners had entered into a verbal contract to do some fencing between them. It was admitted by defendant that the plaintiff was not a man that would mislead the Court. The fence was still up and efficiently serving its purpose. He believed the evidence, of plaintiff, and considered he had proved his case. Judgment would be given for plaintiff for the amount offered in' settlement, viz., £4B, with costs. No interest would be allowed.