CLAIMS BY TRAINER.

Otago Daily Times, Issue 21217, 24 December 1930, Page 16

CLAIMS BY TRAINER.

AN INVERCARGILL CASE. SUPREME COURT’S DIRECTIONS. The judgment of Mr Justice Kennedy in the case in which Robert M'Kay proceeded against Thomas Dobson Webster on claims with respect to racehorses was given in Invercargill yesterday. At the hearing Mr Hewat appeared for the plaintiff, and Mr O’Beirne and Mr Eric Russell for the defendant. His Honor’s judgment was as follows: The plaintiff has claimed sums for maintaining and breaking in young horses and for training and racing other horses. The real dispute in this action is whether the young horses'were to be maintained and broken in for £2 10s per week or for £2 per week, and whether the plaintiff was in addition to £2 10s per week for training horses for racing, to a further allowance of 10 per cent, of the stakes won.

. plaintiff is a horse trainer, and the defendant is the administrator of Bertie Stiven, an hotelkeeper and racehorse owner, who died on May 2, 1930. tne plaintiff s evidence is that it was agreed that he should be paid for the maintenance and breaking in of the young horses £2 10s per week. Such horses do not usually require quite as much attention as horses in training, and the fee for such service may vary from £2 to £2 10s according to the services rendered The terms were stated by the plaintiff to have been the same as for Red Boa, a horse previously maintained by the plaintiff for nf „^ CC?Sed Bertl P Stiven. An analysis of certain payments, made in respect of xo a * Bu Sg“ts that the payment P, er week per horse, while an ° f c ? r j am admitted payments for definite, periods within the period of the dami confirms - payment at the rate of £2 per week per horse. Ido not, in view of the practice as to payment, accept the plaintiff’s evidence as to an agreement to pay £2 10s for the breaking in of the young horses. I prefer to rely upon the plaintiff’s acts rather than upon his words. It is clear that he accepted payment at the rate of £2 per week per horse hi settlement. No subst anti a] amount is, however, involved in this finding, because on January 22, 1929 ml tndmnK j fees jj a jj been paid up to that date, ad appears from an entry in Bertie Stiven’e dairy at that date, signed by the plaintiff, in which the plaintiff adI ? 1 r s ~r eceaP t of a sum as ** training to date, and receipt of a loan of £7. It is clear that at that date deceased was Dot indebted to the plaintiff, but on the Contrary the plaintiff was indebted to the deceased Bertie Stiven. The period January 22, 1929, until February 24, 1929, is the only period affected by this finding, and for that .period it affects the sum accruing due only for the training one horse. In respect of this period £3 8s 7d became due. , The total.amount claimed by the plaintiff for training fees up to January 22, 1929, is over £l2O, and the admitted re-, ceipts total no more than £Ol. , In view of the finding as to setttlement of the account, on January 22, 1929, and of the rate being £2 per . week per horse prior thereto, the plaintiff’s claim must, apart from any other reduction, be reduced by at. least £29. \ From the various diaries produced, I infer that it was the custom of the deceased Bertie Stiven at intervals to secure admissions of the receipt of moneys paid for training fees, while other payments would appear to have been treated as advances for which the person receiving was to account rather than as payments due to discharge an indebtedness incurred through advances being previously made for the deceased. Plaintiff’s circumstances were not such to render probable the disbursement of considerable sums on behalf of the deceased. As from February 24, 1929, plaintiff was to train horses for Bertie Stiven. The arrangement deposed to Vby the plaintiff and by his wife is. not an unusual one, and I think was sufficiently established by the evidence apart from the testimony of the girl called, whose corroborative evidence, had it stood alone, I should have hesitated to accept as ..sufficient, I find that the arrangement for remuneration included 10 per cent, of all stakes won by the horses kept by the'plaintiff at such race meetings as they should be entered to race at. I .find also that all moneys due to the plaintiff for maintaining and breaking horses up to January 22, 1929, were paid and settled by that date, and that the plaintiff owed on that date by way of loan £7. to the deceased. Subsequently thereto sums became due for maintenance and breaking, and also for training fees, but such fees were, apart from percentage of stakes, settled on February 14, 1930, up to February 12, 1930. The amount for maintenance and breaking and for training fees for horses (apart from the money due for percentage on stakes) was settled at various dates and, as for the purpose of the accounts hereinafter ordered to be taken, these facts may be of importance, I set out details of the settlement of the account. The deceased owed nothing on January 22, 1929, for services rendered earlier than January 22, 1929, nothing on January 20, 1930, for services rendered prior to January 15, 1930, and nothing on February 14, 1930, for services rendered before February 12, 1930. The plaintiff deposed to being unaware °f the writing contained in the admissions which he had authenticated by his signature. It was, however, a common practice for the deceased to require the plaintiff to acknowledge the receipt of moneys by such admissions, and I am unable to accept the view that the writing, to which he appended his signature, did not, to his knowledge, disclose the truth. I do not accept the plaintiff’s statement, modified later, as follows:—“ I say that Stiven gave me a cheque sometimes, and I used it for travelling expenses, but he never paid me any training fees.” By consent it was referred to the registrar and an accountant to determine the amount of travelling and other expenses and disbursements made by the plaintiff when taking the horses of the deceased Bertie btiven to various race meetings. It clearly enough appears that £IBO 6s 8d was properly disbursed by the plaintiff. The fees tor maintenance and breaking and training fees subsequent to February 14, 1930, amount to £9O Is 3d; 10 per cent, o£ the stakes won amounts to £B6 17s 7<L There remains for determination in respect of training fees for services subsequent to February 12, 1930, what sums, ®“ier than the payment on February 14, 1330, have been received on account thereof, anq what sums are proper to be allowed as credits on account thereof, to the deceased and to the defendant. No detailed evidence was given as to payments made by the deceased, it being agreed that such should be given when were taken. . The question arises what directions should be given to the registrar and the accountant for their guidance in taking accounts of what payments were made for training services rendered subsequently to February 12, 1930, and on account of travelling expenses and on account of the 10 per cent, of stakes. Plaintiff kept no proper books or records, and accounts supporting his claim in a book produced were admittedly made subsequent to the death of Bertie Stiven. From the nature of the entries in plaintiffs 1930 diary, relating to payments received from Bertie Stiven, suspicion attaches to the statement that they were made when the payments were received. Bertie Stiven did not take formal receipts for all payments made nor did he, as far as may be seen, keep full records of all payments made in casb. It was . obviously impossible for the plaintiff to rely upon his memory, where his records were incomplete, to construct an account of all payments received and he recognised th 4 existence of the deceased’s record, such as it was (and he bad some knowledge of it from his admissions appearing in the diaries and cheque butts) by his request to Andrews to supply him with an account when Andrews’s own means must have been limited by the records left by the deceased. Plaintiff's claim for money made to the defendant points to only a small amount owing, and the account rendered by him was also only for an amount email in comparison with that now claimed. It is improbable that q person in tbe circumstances of the plaintiff was able to advance disbursements for the large amount he claims, or that he, in his embarrassed circumstances, when he saw Stiven frequently, permitted to accumulate the large amounts which he claims. The probabilities are in favour of the common practice that before making a journey he got an advance for necessary disbursements. Having regard to these circumstances, to the fact that the claim is, although the services rendered are admitted, in essence a claim against a deceased person’s estate, and to the proved error in the plaintiff’s records and claim, I think that the circumspection or suspicion with which the plaintiff’s claim, especially in so far as it relates to travelling expenses must be viewed, should be given effect to by a direction (which is now given) to the

registrar and accountant when taking the accounts berinafter mentioned, to regard the entry of the sums recorded in the cheque butts and diaries of the deceased produced as paid to the plaintiff as prima facie evidence of payment of those sums to the plaintiff. This will' occasion no hardship to the plaintiff, who has left his claim till the person who can speak to it is dead. The account hereinafter mentioned is ordered to be taken before the registrar and John Bertram Eeed, of Invercargill, public accountant, namely, an account of all payments, other than the payment of February 14, 1930, received by the plaintiff on account of Bertie Stiven or of the defendant and of all credits, proper to he allowed to them, on account of training fees for breaking and training horses subsequent to February 12, 1930, and on account of travelling expenses disbursed from February 6. 1929. until April 18, 1930, amounting to £IBO 6s Bd, and on account of percentage of stakes amounting to £B6 17s 7d. The further hearing and consideration of the action is adjourned, and the parties may, to expedite the disposal of this case, after the accounts have been taken, move at Dunedin, if they so wish, for such judgment as, they appear, from the results of the taking of accounts and inquiry, to be entitled to*