DEFENDED CLAIMS

Otago Daily Times, Issue 25135, 28 January 1943, Page 7

DEFENDED CLAIMS

MAGISTRATE'S COURT SITTING

Two defended civil claims were heard before Mr H. W. Bundle, S.M., at the Oamaru Magistrate’s Court yesterday morning. Ernest Farrell Allison claimed from Ernest William Woodham £9 9s for work done and materials supplied. Lieutenant H. J. S. Grater appeared for the plaintiff and Mr Osborne Stevens (Dunedin) for the defendant. Evidence with respect to the cartage of materials from the defendant’s shop to his residence was given by W. J. Smith and D. Harney, carriers, and it was stated that the plaintiff assisted in loading the materials. The plaintiff said he was a painter and paperhanger, and that he supplied articles and did work for the defendant by assisting to remove furniture, cleaning up the yard at the shop, erecting a fowlrun, and making alterations to a garage. He had not received any payment in respect to this work. In August, 1939, he sued the defendant for the payment of renovations, the amount being paid into court. The present claim was for work done and materials supplied in May and June, 1939. A claim was not made at the time because the defendant gave him a suit of clothes, and later the defendant demanded the return of the suit, which was returned to him. The defendant, in evidence, said that he paid 30s for a bed and mattress at the time he received them, and he also paid for the timber and iron for the garage. When the plaintiff made up a statement, he paid him £4 to square up everything. Corroborative evidence was given by Mrs Woodham. Mr Bundle said the defendant was entitled to a non-suit on the bed and mattress. On October 24, 1939, the plaintiff took proceedings for £9 17s, and that amount was paid into court. In that claim no mention was made of any other amounts alleged to be due by the defendant to the plaintiff. The present claim was a belated claim, and was there any reason why the proceedings should not have been taken at an earlier date? He was satisfied that the claim of £1 for labour was not made reasonably, and that the defendant’s statement that the work was done as an obligement was much more reasonable. He saw no reason to question the defendant’s statement that he paid for the timber and iron for the garage. The defendant was entitled to judgment on these items. The court looked with grave suspicion on belated claims. Judgment was given for the defendant in respect to all the items except the mattress and bed. on which the plaintiff was non-suited. Mr Bundle intimated that if the same evidence were given in proceedings taken properly in respect of these items, there would still be a non-suit. He made that statement to avoid unnecessary litigation. The defendant was allowed £1 Is solicitor’s fee. Claim for Money Lent

Nellie Whitburn (Lieutenant H. J. S. Grater) claimed from F. M, O’Donnell (Mr A. R. Tait) £22 for money lent by the plaintiff to the defendant In February, 1939, which sum had not been repaid. The plaintiff stated she had known the defendant and his wife for 30 years. In March, 1939, the defendant came to her and showed her a Dunedin lawyer’s letter pressing for the payment of an amount due, and she sent a money order for £8 Bs. Shortly afterwards she lent him £4 to pay an account with a local garage, £4 to pay for some sheep, and various small sums, making a total of £22. The defendant promised to pay off the amount at the rate of £1 a month, but he had not made any payments, and the full amount was still owing. The defendant, in evidence, admitted that Mrs Whitburn had sent a money order for £8 8s to pay an account owing by him, but the money was a gift, and she also gave him £1 the same day to buy a bottle of whisky, as he had a cold. Apart from these amounts, Mrs Whitburn had never given him a penny. He denied that he had promised to give her an lOU, or to pay off the amount at the rate of £1 a month.

Giving his judgment, Mr Bundle said that the £8 8s was admittedly paid by the plaintiff on the defendant’s behalf. It came to a question of credibility between the two witnesses. It was unusual that a man should borrow, or, as the defendant said, that he should receive a gift of money, from a woman. He was not impressed by the defendant’s innuendoes or suggestions that it was really because the plaintiff was fond of him that moneys paid to him or on his behalf were in the form of gifts only. He did not accept the defendant’s statement that the £8 8s was a gift. It was paid by the plaintiff to assist the defendant, who was in straitened circumstances. It was little to the defendant’s credit that if relationships altered afterwards he should try to blacken or besmirch the plaintiff’s character by making certain innuendoes or suggestions. It did not impress the court, but reacted the other way. Considering the evidence of the parties and the manner in which it was given, he found that the £8 8s was a loan and not a gift. He accepted the plaintiff’s statement as to the other amounts mentioned in the claim, and that £22 was paid to the defendant or on his behalf as loans. Judgment was given for the plaintiff for the amount claimed, with court -costs (£2), and solicitor's fee (£4 3s).