CLAIM FOR DAMAGES

New Zealand Herald, Volume LXIX, Issue 21359, 7 December 1932, Page 14

CLAIM FOR DAMAGES

DISMISSAL OF AUCTIONEER ACTION AGAINST MERCHANTS THE PLAINTIFF NON-SUITED A claim for £IBB 10s damages for alleged wrongful dismissal was contested before Mr. .Justice Smith in the Supreme Court yesterday. The plaintiff was Ernest Andrew (!ilmore, of Mount I{oskill, auctioneer (Mr. Gould), and he took action against Produce Markets. Limited (Mr. Meredith). Plaintiff claimed that, he had been appointed I<y dames Hell Donald on behalf of the company at £6 10s a week. He carried out his duties from June 10, 1931, to November 20, 1931, when he was dismissed from the company's service. ITe claimed that this dismissal was in breach of contract. He had since been-unable to obtain employment, and sought judgment for wages up to the completion of one year. The defence denied that .T. P>. Donald was authorised to act for the defendant company, or that lie, entered into a two years' agreement with the plaintiff. )t claimed that, plaintiff was engaged by W. A. Donald on an ordinary weekly footing. As a further defence it was alleged that plaintiff's appointment had been terminated because he had cither been not competent or not diligent and faithful. No Written Contract Mr.. Gould said that several brothers were directors and shareholders in the firm of A. B. Donald, Limited. Several years ago the plaintiff was employed by J. B. Donald to auction the goods of E. Porter, and his work gave entire satisfaction. Correspondence would show that later J. B. Donald was anxious to have the services of the plaintiff for Produce Markets, Limited, a new auctioneering company that was being formed, and in one letter J. B. Donald stated that lie had arranged for the plaintiff to have an appointment at £6 10s a week. Counsel admitted that there was no note or memorandum evidencing tho contract for a term of two years, but said he was entitled to infer that the engagement was for one year. All the negotiations for plaintiff's appointment were carried on by J. B. Donald. It was part of plaintiff's case that the fruit supply was exceedingly unsatisfactory. In November, 1931, Alan Donald told plaintiff that it was his painful duty to dispense with his services, but plaintiff said he could not do that as his appointment by J. B. Donald had been for two years.

£IOOO a Year in Rents The plaintiff said he had carried on business as an auctioneer in Hastings until the reconstruction after the earthquake. As he was selling up his business and breaking up his homo to come to the defendant company in Auckland he asked for how long the appointment would be. J. 13. Donald assured him it would bo for two years, and if anything happened to the new company in the meantime J. B. Donald would get him a position with A. B. Donald, Limited. In answer to Mr. Meredith, witness referred to a number of businesses with which ho had been associated in recent years. "For some years there was not very much occasion for me to work," said witness. "I was receiving £IOOO a year in rents." Ho admitted that after the earthquake in Hastings judgment was obtained against him for rent. Complaints were not made to him about his auctioneering of fruit for Produce Markets. He said that James B. Donald had advised him to take proceedings against Produce Markets, Limited.

The Statute of Frauds Mr. Meredith: Do you seriously say that Mr. Donald advised you to take proceedings against his own company ? Witness: Yes, two or three times. Mr. Meredith applied for a non-suit. The plaintiff had set up the existence of a two-vear contract and had maintained that all through, but there was no memorandum of contract to satisfy the statute of frauds and therefore the claim must fail. Mr. Gould said there were many circumstances supporting the claim that plaintiff's engagement was a yearly hiring. His Honor said it could lie inferred from the plaintiff's sworn evidence that he had a contract for two years as a fruit auctioneer, commencing from the time that Produce Markets started. If the statute of frauds had not been pleaded he would have held in plaintiff's favour, but the statute still lived and worked and the plaintiff must necessarily be nonsuited. Costs were allowed on the lowest scale and an order made for a sum of £B4 10s paid into Court by the defendant to be taken out.