SUPREME COURT.

Otago Daily Times, Issue 21196, 29 November 1930, Page 25

SUPREME COURT.

Borough .Council did not make a formal appointment, but evidence -would be given -v Friday, November 28. committee and attended several times just ■/’a t 1.. tt ~ T . „ as if he had been appointed. It was ‘(Before his Honor Mr Justice Kennedy.) suggested that an agreement be drawn - up between the three councils as to the WHEAT GROWERS’ ASSOCIATION v. * erms 011 w Mch the screeuer was to ALLAN. \ *be u sed by them. Certain terns were mi,. „„„ - ~ _ , , suggested, but no such agreement was wwft f£. S /f n the New Zealand ever carried into effect. On August 30 Co-operative, Association the Waikouaiti County Council resolved If lan - of .to order the machine. It had been sugimr th* T ln^, c . tlon jested that the machine should be prothroS ° tberwise cured through the Main Highways Board, or cloSr w £ tothfa wa ? aad hire out machines for the tSt i!sKits. ££?& gssr-f"*•=>• *■•»»* °“ This case was before the court on Wed- + be tT , Wa^.°V, ait C ° unt^ nesday, when it was adjourned to enable SatT™ g^ W f yS B ° ard counsel to draw up a minute covering the “ at lt . had decided to procure Issue. When the hearing wasresumed and aslnng for hire purchase counsel stated that they had agreed upon the form of the minute, and his Honor iS° U ? ty ,® lerk ~w s ,o te , to Messts granted injunction restraining the de- B ° tb * Macdonald and Co. for an acfendant from selling otherwise ' than coan ti and sent it to the Highways Board through the plaintiff all wheat produced, M rG<3ueat °d. the Highways Board grown, or harvested by the defendant “ ppar ® ntly took the course -of making a from the date hereof until December 31, requisition to Messrs Booth, Mac•l933, on the lands described in the con- doaald ' and Co. for the machine, which tract referred to in paragraph 2 of the kad alread y been supplied, and which hjH statement of claim; actual terms of de- “ een working for a considerable time, cree to be settled by consent of counsel Tke committee of management tried to or in chambers; defendant to pay plain- make aa improvement in the screener by tiff’s costs (£2l). fitting it with a bin, which cost aboui t)ttt(Trpt? naan’s £45, but certain difficulties cropped up - B P , S - , . ’ rand the bin was not at all successful. , nlol T F r . evl ° U3l y ™ ade if the The cost of the bin was borne entirely V^irv Ph rT A ‘ G ’ by the Waikouaiti County Council. The Snda Livingstone was trouble with the bin led to the Highways “ nfo ' v Board asking Messrs Booth, Macdonald, > Hib Honor heard argument regarding and Co. to send one of their experts Zebulun Arthur down and go into the working o 7 So for thq respondent, j . . h “ ad ! me worked v Mr Neill stated that the petitioner was The screener had been set up and his Honor mhatte Shag River, some two or three of the conditions in regard to farms used Wo^fi n Pa p me^ to “r At ®! aga for pastoral production. Prices were ex-' that decld t d ceedingly low, and the prospects were A* I** uot satisfied with the worknbne too rosy, not only for this season, “? ?* P 1? maclune aad that it should but possibly' for the following season. ot be 0v %.. J4 1 pardes It looked as if the he S ®° m ‘ hard put to it to keep the place going. . ta . tke Waikouaiti County Ho carried a very small flock, and on P ta ®* L A ? lmU " resolution was passed the basis of the conditions existing, last ~ Palmerston Borongh* 'Connell, year-bis gross income would be about decided that the minute regarding £3OO a year. There would be a'drop of . . Purchase of the screener be rescinded something- like 50 per cent' this year,; 03 tae mac hme was not what it was reprebringing his return,down to £l5O. . The Ben *® d ta be. So far as he (Mr Paterson) respondent wasen titled to a Contingency, ?? , adj ao letter was sent by the subject to a life interest, of about £4OOO, , lm .®^ s *? n Borough Council to the Waiassuming that she' survived the life koaai , tl Coimbr Council. A letter was tenant. The petitioner was cutting him- by K e Council on self off-from all that money by the peti- P,^? b 26 > bu J the Wai ko uaitx Council tion before the court. At one time P the h^*n tbe that ' macllilie petitioner paid £1 per week for main- b + tf a f b 7 the. three bodies tehance, but in 1525 he applied for a X ! -t te reduction, and the, amount was reduced CminMi JT ben Waikopaiti County by the State to 10s 6d per SeTL make .fP^ ‘ Mr ; N f lll Ba hmitted accounts to the but they amount should be co* declined to pay. The Waihemo CountV .kwueo. ■ ■ Council referred the Waikouaiti Council be wiahed ■ /fo P° lnt to its letter, and the Palmerstoii Borough out tlmt tiie petitioner was not a pauper. Council ’declined Uability without any He had a farm, which, on his own figures, explanation at all. The point would was worth something like £2730, and arise that in the working of a machine there was no mortgage on it. The wife’s of this sort a very great deal depended property was a contingent interest updh upon the quality of the shingle euplier surviving her aged motherl and in plied to iti The plaintiff suggested that tile meantime the State was-maintaining -the difficulties ; which arose were not due her. He suggested that in (a case, of this to a defect in the working of. the kind, where the petitioner Imd means; marine but were due to the kind f of the proper thing to do was to make ihaterial supplied. The shingle used an order which would indemnify the was very baa, whereas good shingle was State against the expense of maintain- available very much nearer. On January ing the wife. The petitioner - had two 29 the Waikouaiti County Council wrote boys dependent on him, and one of them' a conciliatory letter to both the defehon receiving -his next annual increase dants, pointing out that they -had made would be self-supporting or very near it. themselves liable for the payment, but If /he were a tradesman he would have there was no chance of a settlement, to pay more than half a guinea per week ,On the application. of Mr Hay all for the maintenance of his wife He ‘ Wl tnesses other than councillors were (Mr recognised that farmers orde red out of-the court,' . were having hard times, bufone had to Jolm Boston, who was the first wittake into account the fact that the peti- ne ?l ® all t d ° n , hehalf of plaintiff, tioner possessed his own farm, and was eaid he_ had taken a leading part in quite able to provide for the mainten- SP rd to , . the purchase of the screener. anoa of his wife, Six years ago the' pay- -, W “ ,v°. ri f aally Conai ? ned ment might have been fixed at what f° at Y aik ?l tb but WM ® eat r baCk seems to In m Booth, Macdonald and Co, The arrangeishould consider hl^nuSlJin 0 I ® ll menta for the erection of the screener on “I? 1 * the Shag River were made by Mr 't'si TTriinr-' ■■ .iti !i 10? f^i-^ eek ! ;: 'i 'Mf&or, the -.Waihemo County Council's _i i aaked what the' actual inspector. Witness got. authority from r : j it. i. xi. the Waikouaiti County Council to ap- _ . Adams said he. understood that the proach the Palmerston Borough Council, ™ m^u i2 2a per week. and did not act on hie own. initiative. Mr Neill .saul that any order, made The arrangements made were' that would be subject to review at a later Messrs -Booth; Macdonald and Co. date. He submitted that, an increase at ('should"; deliver the ' machine subject to present would involve considerable hard- the three bodies i'entering into an agreef®!.; i , ment. The arrangements for payment His Honor said he thought the "order were made through the Highways Board, should provide at present for the pay- Witness had stated that if the machine ment of £1 per week. The representa- . would not elevate and screen Shag River tives of the respondent had the liberty gravel at a cost of fid per yard he apply later for an increase if the cir- would! pay it. -He had informed the cumstances of the petitioner warranted Waihemo County Council that the that course; ■ A decree, absolute would machine would elevate four yards of be made. By consent it was arranged material in six minutes. He did not that the petitioner pay to the receiver remember saying to Mr Arkle that he for mental hospitals during the joint had no authority to approach the lives of the and the respon- Palmerston Borongh Council, but that dent a weekly sum-of £1 for the main- be there would be no difficulty tenance and support of the respondent, in getting it to come in. the petitioner to pay the* guardian ad Evidence for the plaintiff was also litem .-£2O for costs and all necessary dis-' given by H. S. Sheaf and George Clark bursements. (members of the Waihemo County tAn at unTir-oo Council), Edwafd Duckworth Brown . LOCAL BODIES AT VARIANCE. (salesman.for Booth, Macdonald .and 'The Waikouaiti County Council:pro- Co.); and Finlay M'lvor (inspector for eeeded against /the Waihemo County the. Waihemo County Council). The Council and the Palmerston Borough last-named stated that the place Council asking for an order compelling selected for the machine Was not suitthe defendants to complete an agree- able;' as there was too much sand and ment which the plaintiff alleged they to ° many large stones. So far as the had entered:into to pay one-third of the Waihemo County Council was concerned cost of a screener. Mr J. M; Paterson machine was used for. a series of appeared for the plaintiff, and Mr W. 6. trials, and was not seriously worked. Hav for the defentfonta. ‘ In opening the case for the defence Hr Hay said the statement of claim set out > that a certain agreement was made for hire purchase. The first defence was that there was never any completed contract. That was shown by , the minutes of the Palmerston Borough Council. It was also shown by the evidence of Mr Preston that a proper form of - agreement w.ould be drawn up. Apparently the idea was that three men were to form a subcommittee to have control. As a matter of fact the Palmerston Borough Council never gof to the stage of binding anyone, An, agreement would have shown what share each of the bodies concerned was to have in the screening. If Mr Preston had authority he did not carry out his authority according to instructions. One would have expected some form of communication between the three bodies, but there was no record of such a course having been taken. There was no doubt that Mr Preston had made distinct representations. His statement that the subsidy would be' lost if the councils used unscreened gravel was not borne out • by the facts. If the screener had done the work at a cost approaching Gd per yard the Waihemo County Council and the Palmerston Borough Council would have gone on with the matter in the public interest, but the machine was not suitable for the Shag River gravel. It was recognised by Mr Preston and everyone else that the machine was to be purchased for work on the Shag River. Mr Hay submitted that the general aspect of the matter was that Mr Preston had forced the-position. He was anxious, no doubt with the very best of intentions, to bring the various bodies to a conclusion as soon as possible, and he had overforced the position. It was understood all along that there was nothing binding until an agreement was drawn up. It was perfectly clear that. there was no binding agreement when the machine was purchased, ‘and that the arrangements were never finalised at all. The I position was that until an arrangement ; was made between the Highways Board and Messrs ■ Booth, Macdonald, and Co., : the whole thing was in the lap of uncer- 1 tainty. When a letter was sent by the Waihemo County Council to the Waikouaiti County Council all that was done was to receive it. The Waikouaiti Council should have communicated with the Highways Board and have the matter ' held up. It was quite clear that nothing of a binding nature was to be done until . •everyone concerned was satisfied. It was a remarkable thing that the machine had been lying there for four or five

Mr Paterson stated that the parties to the action were all local bodies, which were contiguous. The substance of the action, concerned the purchase of a machine for screening gravel .'lor use on roads and highways. The question shortly was whether the machine, which was purchased by the plaintiff, was purchased by it on behalf of itself and the other two; bodies jointly,' The plaintiff alleged that authority was given to it to purchase on behalf of the.three bodies, but the defendants- denied that. The eyidence for the plaintiff would be that Mr Preston, who was a member of the Waikouaiti County Cquncil and also a member of the District Council of the Highways Board, was mainly responsible for the arrangements made about the machine. He {Mr Paterson) understood that the Highways Board drew, the attention ofif.aH county, councils in July last to "'the unsatisfactory nature of the gravel which was .being placed on the highways. The board delegated to the county councils the' duty of maintaining the highways. The question was discussed by the Waikouaiti County Council, which placed the matter In Mr Preston's hands, and he made certain investigations from other councils and generally as to the best method of dealing with the problem. He was also ashed to interview the two neighbouring, councils. He got into touch with Messrs Booth; Macdonald, and Co,, of Christchurch, who were well known as the makers of this sort ■ of implement, and made arrangements to the extent of giving a conditional order that such a machine should be supplied to the Walkouaiti County Council upon having the concnrrence of the other two councils. On August 12 Mr Preston attended\a meeting of the Palmerston Borough Council, and as a result authority was embodied in ji minute for procuring the screener at an estimated cost of £26 per annum for four years, and that an agreement be drawn up by the respective local bodies. On August 17 Mr Preston waited on the Waihemo County Council, which ngreed to the proposal, to purchase the screener. At that stage of the proceedings Mr Preston got into touch with Messrs Booth; Macdonald and. Co.’s Timaru office, ordered the machine, and gave directions -regarding its delivery. A committee of management was set np as suggested by the Waihemo County Council- Mr Stye at represented the .Waihemo County Connell and Mr Preston represented the Waikouaiti County Council. He understood that ' the Palmerston

months and that no use had been made of it by'the Waikouaiti County • Council, Evidence for the defence was given by William Calcutt Arkle, a retired solicitor and a'member of the Palmerston Borough Council. He stated that Mr Preston had informed the council that it was essential that the gravel should be screened before a subsidy could be ■granted. Witness understood Mr Preston to say that he personally had an option to purchase a screener, which he guaranteed to screen at 6d- per yard. Mr Preston suggested _that the Palmerston Borough Council and the Waihemo County Council should Join, with the Waikouaiti County Council. He stated that he was not authorised to approach the Palmerston Borough Council, but that that difficulty could be got over easily. The Borough Council withdrew from the proposal because it did not think the machine was suitable. Evidence was also given by John Gordon, a member of the Palmerston Borough Council. At 5.30 p.m. the court adjourned till Monday morning. An extraordinary case has occupied the King’s Bench Division in London. No one would suppose that he was incurring any liability to a third party by leaving a d<sg. securely shut up in a closed car at a parking place. But this dog, a young Airedale, became; so excited that it jumped partly through a glass panel at the rear of the car. A Mr’ Pardon, whose car was parked near by, happened to - be passing, and was hit in the eye by a splinter of glass. He now wears n glass eye, in respect of which a jury awarded him £2OOO damages against the owner of the dog, whose defence had been a denial of negligence, and the allegation that the plaintiff had been teasing the dog.