SUPREME COURT.

Manawatu Standard, Volume XLI, Issue 8543, 25 March 1908, Page 6

SUPREME COURT.

PALMERSTON—TU ESDAY.

(Before Mr Justicc Cooper.)

CLAIM FOR DAMAGES. The ioliowing is tho additional evi■dcuco in the uannevirKO case, in which juora Mary btevenson claim ±)oUU lor specific poi'foi-mance irom Anton .Beiiiiiu.rU Thomson. AJiton isornliard Thomson, defendant ill tiie case, was tho liitst witness tot the defence. In his evidence he stated that wnoii Miss btevenson iirst started tne business it diu not pay lior, but towards me last it did. He had only ottered her JtilOO for the goodwill and tije lease. tihe reiused and said she wanted £150. Witness took possession ot tne house to protect himself, as tho place was insured, and piamtiit had leit it. lie had used it as a boardinghouso since ho took possession, but could not say wnetlier he was making money out oi it or not. Alter the fire the outside portion was leit as it was, and tnero woie tnroC rooms in the house that were lit to be used. Io Mr Fitzncrbert: He had never rerelused to uilow plaintiff to go back until after tho requisition had been made. tie could not recollect having told plaintiff tnat it she did not take the coal out oi one of tho sheds he would charge her storage for it. lie had used tne coal and had not paid ior it, because she had not asked tor any payment. He received the money on tne insurance policies two or three weeks afters tho fire occurred. He had not kept her ''on the string" tor two or throe months. Constable Curtain, Dannevirke, stated ho made investigations with regard to the lire immediately after it. Miss Stevenson told him she had ±<65 banked in Jfalmerston jointly with her sister. She took a situation m .Dannevirke as barmaid, and saved £120, which account she had transferred irom Palmerston to Dannevirke. When she saved £150 she had a disagreement with her sister and took the money out of the bank. She spent £30 and put the balance in a small box immediately under the stairs. After the tire she showed witness where tho money was placed. lie noticed the remains of a packet of candles alongside the place where the money was supposed to have , been placed. Un lilting the candles a white mark remained, while there was no mark to indicate tho place where the box stood. He did not think it probable that tho £ 100 could have been burnt if it had been there. There was only one room on tho ground lloor that was not habitable after the fire, this was called the dark room. The shelf upon which the £100 was supposed to be placed was blackened, but not burnt. Plaintiff gave witness to understand that she had bills to the extent of £62 to meet and only £11 to meet them with. When she had tho disagreement with her sister the business started to fall off. To Mr Fitzherbert: He visited the fire about five minutes after the_ fire had started. lie was not of the opinion that the money had been stolen, as the door was open and had not been broken. Miss Stevenson was perfectly frank in the matter, and he did not suggest that she had misled them in any way. To His Honor: There was no mistake mado Miss Stevenson had £11 6s 6d after the fire, and he had not mistaken a £10 note for a £1 note.

Goorgo James, master painter, Dannevirke, stated there was only one room on tho ground floor that badly damaged. He owned a boarding-house at Dannevirke, and taking it all through it took anyone engaged in the business all their time to pay their way. He considered that Miss Stevenson had a profitable trade, but not to tho extent of £7 per week. His Honor stated he did not think the evidence of the defence had seriously displaced the evidence for the plaintiff. It appeared to him that the money might have been stolen, and on the constable's evidence as to plaintiff's character he could not think she had wilfully misled thom in the matter. He held that defendant's evidence was inaccurate in respect to tho £25, and was inclined to believe Miss Stevenson. He thought it probable that she might have over-osti-mated the profit she made, and that she was making a profit of about £3 or £4 per week He therefore valued the goodwill at £150. There could be no dcubt that plaintiff had suffered damage by the action of defendant. He would therefore give judgment for £150 with costs on the lower scale, .this including "the amount plaintiff would be entitled to recover on the first cause of action. On tho second cause of action the agreement for the lease was cancelled, and plaintiff's liability ceased. All rent, ihat was duo was taken into consideration in the award of £150.

CONTRACTOR v OWNER. John Martin Anderson (Mr Loughnan) v. Leonard Rathbone (Mr T. 11. G. Lloyd), claim £68 12s for work done, the amount being retained by defendant for alleged breach of contract by plaintiff.

The statement of tho case was to the cffect that on August 15th, 1907, the plaintiff entered into a contrac", to fell £300 acres of bush at £1 5s 91 per aero for defendant. The plaintiff commenced work on August 31s.t, and continued until November 9th, when plaintiff received instructions from defendam that as' the aiea was 343 ucics he must put on more men to complete the contrrct within the specified time. Tho i-laiutiff engaged iT.c-re men and cut out tho area on December 17th, 1907. The plaintiff then aj plied for payment, bin was refused on tho ground that ho had not carried out his work in accordance with tho specifications. Subsequently defendant made a payment on account, retaining only 25 per cent, of tho contract price under the Workman's Wages Act, and a further sum of £68 12s as damages for tho alleged breach of contract. On January sth, 1908, defendant kindled a firo in the felled hush for tho purpose of burning and clearing same. On January 20th defendant wrote to plaintiff enclosing a cheque for £101 13s Id, being the balance of contract moneys, less £68 12s ' retained on account of tho alleged breach of contract. On February 27th defendant sued plaintiff for £171 10s. damages for the breach of contract, in the Magistrate's Court at Dannevirke, and was awarded tho sum of £2 damages. The plaintiff subsequently applied for payment of the. balance, and had been refused. The ' plaintiff paid the sum of £2 damages as awarded by the Court, and now claimed to recover from dofondant the sum of £68 12s and tho costs arising out of (ho action For the defence it wa< stated that piaintiff was nonsuited in tho Magistrate's Court with costs after a full hearing, and judgment was given for defendant. on his cross-action, for £2 damages, and further, that the plaintiff was estopped from saying that ho did the work according to Iho specifications and b") the satisfaction of defendant, because on February 27th, 1908, before the commencement of this action, defendant brought an action in tho Magistrate's Ccurt for damages for breach of contract. It was alleged in this action that Anderson did not carry out his work according to the specifications, and in conscqucnco -the bush did not burn well, whercforo Rathbone elanrcd £171 10s damages, being at the rate of 10s per acre for 343 acres. This action was tried before the Magistrate together with tho plaintiff's, action for £68 12s, and the Magistrate found that the work had not been performed according to specifications and that there had been a broach by plaintiff, and he nonsuited plaintiff with costs' and gave judgment for defondant for £2.

John Martin Anderson, contractor, stated that ho had followed tho specification as near as he possibly coulcl. Thcro wore places in tho bush where it, was impossible to follow tho specifications to the letter. Mr Rathbono had objected to tho stumps being so high, but witness had pointed out that ho was not ablo to cut them lower owing to the nature of the ground. Tho underscrubbing was the main source of trouble, but he had tried to do it as

well as. ho could. Ho had left notiling undone that Ho could possibly do. I-Ie had received three progress payments and no objection had been raised to the work then. He had offered to do anything that Rathbone considered necessary to bring the work in lino with the specifications. To Mr Lloyd: The price was a very fair one. ■ , . , Anton Swonson stated thut he had worked for Anderson throughout the wholo contract. Thoy had followed the specifications as near as thoy possibly could, but there were places where it was not possible to do so, a» a n ill had been through the bush, and vliero was a great deal of fallen timber in the way. , . Emil Erricson gave corroborative ond°Loonard Charles Rathbone, defendant in the case, stated that on several occasions he had let bush to plaintiff and ho had proved himself a good bushman and capable of doing the work thoroughly did he wish. The country was ol an easy undulating nature. There was nothing exceptional about the specifications. Witness had seen them t.;;torc he signed them, and similar specifications had been used in other contracts. The scrubbing had not been satisfactory and when witness had taken piaintitr through it he could not help admitting that it was not properly done. On cue occasion Anderson had promised .o go over it again, but had only spent two or three hours with his men in going over 70 acres. Anderson commenced felling the bush early in September, before the scrubbing had been passed. Witness paid continual visits to the work, and at times it improved and then became as bad as ever. Towards the end of the contract they were leaving a considerable amount of scrub uncut, and a great many trees were left hanging on the stump. Some of the stumps were ps high as six foot from the ground. By doing the dork in the manner in which he did witness considered plaintiff saved from 4s to 6s per acre. He had been over the land since the burn, and there was scarcely any part of the burn where there were not some portions of uncut scrub to be found. In some places the supplejacks had grown again to a height of about six feet. There were patches whore the work had been done well, and in these places a good burn had been obtained. If it had not been such a good season he doubted whether 25 per cent, of the bush would have been burnt. He fired the bush when ho did because there was danger ot hres from other adjoining places sweeping Court then adjourned till 10 o'clock next morning.