PAYNE v. CENTRAL.OTAGO DREDCE-OWNERS' ASSOCIATION.

Otago Daily Times, Issue 12425, 7 August 1902, Page 7

PAYNE v. CENTRAL.OTAGO DREDCE-OWNERS' ASSOCIATION.

Mr E, 11. Carew, S.M., gave judgment in the case Francis William Payno against James Gunning Closs yesterday. The claim was for £35 for tho preparation, ot plans and calling for tenders for the construction of a small steamer for the carnage of coal up the River Molyncux to the dredges, defendent being the secretary and a member ot the Cental Otago 'Dredge-owners' Association. Tho judgment was as follows:— "II is not disputed that the plaintiff's services were engaged on behalf of "the association, nor is the price disputed, but the defences sat up urc that if the association is liable it does not follow that tho defendant is liable; that he was the paid secretary of tho association, and in that .capacity he would not bo liable; and that lie was not a member, or, il a member, oniy so in a representative capacity, and thorn would bo no personal liability attached. There is a further defence that the plaintiff agreed to give his services to the association gratuitously upon the understanding that if a company were floated to carry out the scheme tho association would give plaintiff their support for appointment as consulting engineer. I need not go into the first matter of defence, lor the evidence on the other question is very strong against Mr Payne. The witnesses differ to some extent as to exactly what was said at. the mooting of the association on tho 19th September, 1900. Mr Payne admits Mr Spencer (the chairman) spoke about their want of funds, but lie says that Mr Spencer did not say they had no funds for plans, but that they liad hone for elaborate plans. Captain Sundstrom has no recollection of hearing the chairman say they had no money to pay for plans. For the defence, Mr Closs says the chairman told Mi Payne that the association had no money that thoy. could pay for plans, and if lie would draw rough plans he. must understand that he would not be paid by the association, but if detailed plans wore required he would be employed by the company to be formed to put on the steam launch. Ho also says that.Mr Payne clearly understood if a company were not .formed lie was'not to be paid for .the rough plans. Mr Spencer, who was chairman of the meeting, says: 'I immediately .explained, to Mr Payne that the association, had no money, and could not employ, anyone- for. such purnoae'; and several other members made the same statement to Mr. Payne. .The evidence of Mr Ryan and Mr Anderson is to the same effect—that Mr Payne' was given to understand that the association were, not to pay for plans. The weight of -evidence is certainly on the side that tho association wero not to pay for the plans -Mr Payne was to supply, and that lie was to look for recompense to the chance of a.,company taking up the: scheme and his. probable employment asconsulting engineer: As to the second lot of i plans—that is, Hie altered design—these wero urenared at Captain Sundstrom's request,, and 1 lie had no authority to pledge, the credit of ,the association; but even if the alterations had bsen asked for -by the association, in the absence of anything to show to the contrary, j it would be assumed tins was to be done, on the same basis as to recompense as' the i original .work. Judgment, for- defendant, with costs'of court £5, professional costs 425."