LIABILITY OF GRAZIERS

Manawatu Standard, Volume LII, Issue 243, 13 September 1932, Page 10

LIABILITY OF GRAZIERS

DECISION IN FEILDING CASE,

JUDGMENT FOR PLAINTIFF. An interesting judgment to farmers', and one in which the liabilities incurred by those who graze stock belonging to others on their properties, was given by Mr R. M. Watson, S.M., at Fending, yesterday, in tho case in .whidh H. R. Peacock, farmer, of Waipukurau, claimed £352 17s from L. G. Nitzke, farmer, of Waituna West, first defendant, and the New Zealand Farmers’ Co-op. Distributing Coy., Ltd., second defendants, for losses incurred to a heard of cattle owned by plaintiff and grazed by the first defendant on his property at Waituna. In the course of Ins judgment Mr Watson, inter alia, said:—

Plaintiff claimed £352 17s made up as follows: 63 cows at £2 10s per head, £157 10s; depreciation in value on 33 cows sold at £1 15s and one cow sold at £l, £26 6s; 22 heifers and fteers dead at £2 ss, £49 10s; depreciation in value of 16 steers and heifers sold at an average of £1 9s 6d, £l2 8s; depreciation in value of 129 yearling steers and heifers at 12s 6d each, £BO 12s 6d; general damages £26 11s 6d. The first defendant counter-claimed for £52 I7s for grazing. The question of the amount of the! claim being in excess of tho jurisdiction of the Court was dealt with by tho Magistrate, who ruled that as plaintiff had reduced his claim against both defendants it brought the matter within the jurisdiction of tho Court in the manner allowed by Section 33 of the Magistrate's Court Act. Dealing with the claim against Nitzke, tho Magistrate, stated that a mass of evidence was called by plaintiff and even moro by the first defendant. This evidence generally sustained cortain uncontradicted facts. Plaintiff required grazing for cattle in the early part of 1931 and as the result of con- i vernations he and his son met F. L. Kerr in Feilding on or about January 25, 1931. Kerr was then a stock agent i employed by the second defendant, and was authorised by Nitzke, who owned 1347 acres at Waituna West, to arrange for taking in cattle grazing oil his behalf. In Kerr’s company plaintiff 1 and his son went to tho boundary of Nitzke’s property to inspect the grazing plaintiff was to have. An arrangement was arrived at between plaintiff and Kerr and the cattle, numbering 219 grown cattle and some calves, were sent across and received by Nitzke on his farm early in February, 1931. The grazing rate arranged was 6d per head per week for grown cattle and nothing for calves. Monthly accounts for the grazing were forwarded to plaintiff through his agents, the Hawke’s Bay Farmers’ Co-op Association, Ltd., by tfie second defendant as agent for Nitzke. On February 27, 40 bullocks were sold. On or about August 7, 1931, plaintiffs received a letter from the second defendant stating that Nitzke considered it would bo more satisfactory to him and to plaintiff if plaintiff would come over and inspect the cattle. On or about August 20, plaintiff, while actually on his way over to Waituna, reoeived a further letter from the. second defendant, stating that Nitzke advised that a number of the cows had died and they would be pleased if plaintiff would come over ns soon as possible and inspect those now on the property. Plaintiff and Mr Hartland, a stock agent, employed by the Hawke’s Bay Farmers’ Co-op Association, at Waipukurau, came to Nitzke’s farm and, finding that a considerable number of the cattle wero dead, plaintiff made arrangements for tho removal of the majority of the survivors, which was effected on August 27. Nitzke and Kerr admitted counting later 45 carcases on the Cape Horn block. There was considerable conflict in the evidence as to the entered into between plaintiff and Kerr and as to many matters of importance in the action. What was more unusual was that there was contradiction on important matters between witnesses on the same side. The finding of the facts was accordingly, difficult, but, the Magistrate said, he was bound to find his way through the mass of contradictions as best he may and as lie believed to be nearest the true position on the balance of the evidence. Plaintiff told the Court he thought lie was getting the sole grazing of the whole of Nitzke’s farm and he said he consideted it reasonable that lie should have the exclusive rights of the cattle grazing of 1300 acres at 6d per head per week for 200 cattle; or, as it actually was, 219 grown cattle, and calves, up to February 26, 1931, and 179 grown cattle and calves thereafter. As against that, plaintiff s son who accompanied plaintiff, said he felt certain from what took place that his father was not getting the grazing of the whole of Nitzke’s property, but onlv part. The Magistrate was unable to ‘find that Kerr had arranged for Peacock to ha.ve the grazing of the whole of Nitzko’s farm. The Magistrate said he believed the true position to be as stated by Kerr to tlie Court at the conclusion of his evidence that “Peacock made an honest mistake as to what grazing lie was getting.” The Magistrate went on to say that he found as a fact that the cattle were taken for grazing on the Cape Horn block and not on the whole of Nitzke’s farm. Ho considered that there was no misrepresentation by or on behalf of Nitzke and no breach of agreement merely bv reason of plaintiff’s cattle being confined to tlie Cape Horn block. GENERAL NATURE OF CONTRACT

The next feature requiring investigation was as to the general nature of the contract entered into, the Magistrate continued. It was claimed for plaintiff that the contract was an ordinary contract of agistment, and the Magistrate was of that, opinion. This implied a term that the agister would redeliver the cattle to the owner on demand. The agister was not an insurer of the beasts taken in by him, but he must use due care and diligence in the care and preservation of the property enti usted to him. The agister was liable for injury caused to the property by negligence or neglect of such reasonable and proper care. In the case of loss the onus was on the bailee or agister to prove that it occurred through no ordinary want of care on lus part. It was contended by first defendant that the contract was subject to inspection and the taking of responsibility by the .owner of the catt e. This was denied by plaintiff. The onus said the Magistrate, of proving such a term of the contract was on the party alleging it. The Magistrate did not' consider it liad been established that inspection by or on behalf of the owner of the cattle was made a term of the contract or that any promise, express or implied, on tho part of plaintiff to inspect tho cattle had been established. Tho undisputed fact was that neither plaintiff nor Hartland inspected the cattle on any occasion during the six months prior to the receipt of the letter of August 18. No special terms were established" by either side. CONDITION OP CATTLE.

As to the condition of the cattle, the Magistrate went on to say that it was clear from the evidence of Kerr and Lawrence that, up to the time of the letter of August 7 was written, Kerr had no idea that the

deaths were eo. numerous or the position of the cattle so serious as was i actually the case. Lawrence (laid when the letter was written and signed by him lie had no knowledge of deaths. Some shortage from Hawke s Bay cattle in the winter of 1931 was, on the evidence, to be expected. Plaintiff said he would expect a 5 per cent, loss if he had the whole place. The Magistrate was not prepared to find that there was no cwmmunication between Kerr and Hartland in July and August, 1931, regarding the condition of the cattle. The ovidence generally sustained the finding that Nitzke did not inform Kerr and Kerr therefore did not inform Hartland of the numerous deaths which were taking place from the end flf June, and that was the material feature. The evidence generally was that the cattle were doing fairly well until the end of June. Plaintiff’s drover said the cattle had mostly died during July and August. If the cattle had been taken away in July they would have been mainly saved. Nitzke stated that, in July, 20 to 25 head of cattle died, mostly cows and mostly towards the end of July. Perhaps 10 or 12 head died between August 1 and 20, but Nitzke did not know that at the time, j GRAZIER’S DUTY.

Continuing, the Magistrate said that it was Nitzke’s duty to take reasonable care of the cattle, to know, as he admitted lie did not know, the number of deaths that were occurring and to have plaintiff or his agent informed of the plight of the cattle in July and early August. This the Magistrate found as a fact ho failed to do. It was Nitzke’s duty to have plaintiff or his agents notified of the state of the cattle and for his neglect to do so he was responsible. The onus was on him to satisfy the Court, which he had not done, that the cattle could not have .been moved by plaintiff. The Magistrate was satisfied that the cattle were much weakened by conditions in Hawke’s Bay before their arrival at Nitzke’s farm, this view being supported by the evidence tendered by plaintiff's drover, and there was also abundant and independent evidence for the defence that the condition of the cattle and especially the cows on arrival was very poor. The Magistrate found also that, from the evidence generally, the cattle died from the excessive cold and wet of an unusually severe winter, more than from starvation. The poor condition of these cattle, particularly the low conditioned cows from whom calves were not weaned, also the late docking of the calves, contributed to a very considerable extent to the unfortunate result. For these matters the responsibility was plaintiff’s. Undue lowness [of feed, however, in July and August, in the Magistrate’s opinion, due to having such large numbers of cattle on j the block, was to some extent rosponjsible for the losses. Nitzke, indeed, ■admitted in evidence that the Cape jHorn block ran out of decent feed : about the middle of July. It was not jeasy to assess the exact extent of the | actual loss sustained by plaintiff arising out of Nitzke’s negligence, but : after consideration the Magistrate fixed it at £l2O.

As to tlje liability of the second defendant, the Magistrate found that the second defendants as agents dropped out of the transaction at the conclusion of the arrangements for the agistment, unless the second defendants, as alleged in the statement of claim, volunteered information which was incorrect. This the Magistrate was unable to find had been proved. The negligence was Nitzke’s and not Kerr’s or the second defendants’. Kerr, the second defendant’s representative, acted merely as agent for a disclosed principal, and the fact that there existed a current debtor and creditor account between Nitzke and the second defendant did not, in his opinion, make the second defendant a principal party to the contract. Plaintiff was not, in the circumstances, entitled to sue both Nitzke and the second defendants. 'The evidence disclosed no claim against the second defendants, who were therefore entitled to judgment.

Judgment was entered on plaintiff’s claim against the first defendant for £l2O and costs and witness’s expenses amounting to £l7 15s. On the counterclaim judgment was entered for the first defendant for the admitted amount of £52 17s with costs £4 2s. On the plaintiff’s claim against the second defendants, judgment was entered for the second defendants, with solicitors’ fee £ls 15s.

At the hearing Mr Harker (Waipukurau) appeared for plaintiff; Mr D. C. Cullinane for the first defendant (Nitzke) and Mr C. E. Taylor for the second defendants (N.Z. Farmers’ Distributing Co., Ltd.)