MAGISTRATE'S COURT.

Otago Daily Times, Issue 12541, 20 December 1902, Page 3

MAGISTRATE'S COURT.

Fiuday, December 19. (Before Mr E. H. Carew, S.M.) Judgment was given for plaintiffs; by dc : fault, in the following undefended cases:--Moonlight Gold Dredging Company (Mr A. S. Adams) v. Patrick Tohiri (Arrowtowhl, claim £B 3s id, for calls due on shares (costs £1 Ss 6(1); H. Wise and Co. (Mr Moore) v. U. B. Hope (Kumsra), claim £G 3s, on a dishonoured cheque (co3ts £1 3s Gd). W. C. MacGrcgor v. John LaSey.-Claim £0 9s, balance of account for professional sen-ices rendercd.-Mr Solomon appeared for plaintiff, and Mr Sim for defer-dant.—This was an action arising out of the purchase of the Gridiron Hotel by defendant. Mr D. D. Hacdonald prepared the papers in connection with the transaction for Strachan and Co., and by correspondence submitted theai to Mr W, C. MacGregor for perusal.—After the case had been partly heard, it was adjourned till Monday, pending * settlement.

George A. M'Carter v. Bobert S. M'Vickar.— A claim tor £G, as damages {or wrongful dismissal and for two weeks' salary alleged to be accruing at the time of dismissal, against which there was a counter-claim, tor £G.7s fid, for goods alleged to haro ; been wrongfully ' converted. •>- Mr Solomon appeared for plaintiff, and Mr Sim for defendant.—ln this previously heard case, liis Worship now gave judgment as follows:—"This is a- claim for wages and for damages tor wrongful dismissal. It is not disputed that a week's wages was due to plaintiff before the time of his dismissal. He was a, weekly servant, and if he is entitled.to anything more it must bo by way of damages for wrongful dismissal. Tho defendant seek 3 b justify the dismissal without notice on tho ground that plaintiff had made away with his goods in an improper manner. It lias been proved that on nine different occasions, between the early part of March and' the middle of October, 1902, the plaintiff font away goods to (he value of nearly £G to Mr Peter Anderson without charging them ngainsl him, That 13, ho 3ent Mr Anderson goods to the value of about £21, but onlv debited him with goods to the value of £15. Mr M'Cartcr has not denied sending these goods, but sets up as justification that the goods delivered in March and April 4 were, he believes, an exchange for goods received from Mr Anderson some lime More. There- is no ucord in the books of anv such transaction, and the explanation is not satisfactory. On August 8 goods to the value o! 37s 3d were entered against Mr Anderson, and the evidence shows goods to the value- of 5Js 3d wero delivered to him. Three vegetable dishes were delivered, hut only two charged. Mr M'Cavter's explanation is that one wa3 given to make up for a damaged one previously sent. No other person in the establishment appears to know anything about- this damaged dish, and there is no record. The other articles not charged for on that date—namelv, a portmanteau (price 3s 3d), r.no dosen cups and saucers (5s 3d), and plates'(ss)—Mr M'Carter says these were concessions made to keep Mr Anderson's custom. This means that on a sale p( goods for which 37s 3d was charged other goods to the value of 14s were given away. On September 3 Mr M'Carter sent. Mr Anderson five dozen cups and saucers, the price, of that description being 5s 9d per dozen, and 10 teapots at Is each, 'but he only charged Mr Anderson for two dozen cups and saucers, for which he charged as if a lower quality at 4s 9d per dozen had been sent, and six teapots, (lie 'so called concession in this case being a- gift of goods to the valus of 23s 3d on the purchase of 13s Cd. There are other similar transactions I need not comment upon, and will now refer to what- led up directly to plaintiff's dismissal. On October 11 Mr M'Carter ssnt Mr Anderson eight different lines of goods; debited at a little under £5, and at the same time he also sent three dozen dessert forks, one and a-half dozen white plates, and one dozen white and gild cups, which wero_ not debited. Mr M'Carter had been watched over this transaction, and it was found that the last-mentioned Roods, of the value of 295, were not booked. Mr M'Carter, when asked for an explanation by Mr M'Vickar, ?aid he had forgotten to book them in the day hook, but that they were entered in his order book. The order book was examined, and it was found the goods were not entered there. If Mr M'Carter honestly made these mistakes, as he said he did—that is, that be unintentionally omitted to enter the order when ho re- ' ceived it in Ills order book, omitted to enter or debit the articles to Mr Anderson when they were sent out, and believed he spoke the truth when he told Mr M'Vickar, what was not the fact, that the poods wire entered in his order book, then his memory must be very bad, but he is in this dilemma, that he order cover-ad 11 different- lines of goods, comprising 22J dozen articles, and he must have either trusted to his memory when sclect:ng these good 3 from stock to send away, which is very improbable, and if he did do so his •ncmory must be very reliable, or he must have used his order book to make up the order, md if ho did that he could not avoid knowing he was sending out goods not in hie order book ind of which no record was kept. It is inioortant to notice that during the period when 'hose transactions took place Mr M'Vickar was himself conducting the business, but none "i these concessions or gifts,.or whatever they ■vere, were ever mentioned; to him by Mr M'Carter! I need not say more to justify the conclusion I must come to, that-to take the most favourable construction to 'too placed on plaintiff's conduct,'he has deprived his Taployer of his goods m a- grossly improper manner. In Pearco v. Foster (12 Q.8.D., 539), Lord Esher, Master of the Robes, said, 'The rule oil-law is that where a person has entered into the position of a servant if.he does anything incompatible with the due or faithful discharge of his duty to his master the latter has a right to dismiss him.' There can be no doubt the,defendant wa3 justified in discharging the'plaintiff. Judgment for ■ plaintiff fov £3, and costs (325). As to the counter claim, I must hold.that the defendant can recover the value of the goods plaintiff improperly made away with. There is lis '9d"io' deduct from this claim, and I give judgment for defendant for JCS 16s, with costs (B $s)."