SUPREME COURT.

Poverty Bay Herald, Volume XIX, Issue 6441, 10 August 1892, Page 3

SUPREME COURT.

THIS DAY— CIVIL ACTIONS. [Before His Honor Mr Justice CoNOLLY. | PIUTCRARD AND OtHKKS V. A. POYZER, claim L 241 on damages for breach of contract. Mr Day appeared for plaintiffs, and Mr Cooper for defendant. What the plaintiffs were suing for was not the amowut for the work done, but for the amount of tho whole ot the contract. Against the claim for damages, an account against plaintiffs for stores amounting to L 93 was put in. Tho action waa laid under the Truck Act. Win. Pritchard, one of the plaintiffs in the action, stated that he had been bushfelling for Mr Poyzer at Maungatsniwha, a placo about fifty miles from Wairoa. Was thirteen weeks employed cutting the bush, during which time ho had cut about 100 acres. On an average six men were working on the contract They were ?vll good bushmen. Each man, working full time, would be able to knock down from two to three acres per week, and on that calculation he estimated that about 100 acreß had been fallen. Had given Poyzer written notice to inspect the bush. Ho did not, however, do so. Poyzer told witness when he gave him the notice that he knew nothing about bush, but would send a Mr White to make the inspection. Ifc was before the contract was thrown up that White and a man named " Sandy " inspected the bush with witness. Mr White did not find any fault with the bush. Witness did not see Mr Poyzer ap:ain after the bush had been inspected. The account produced ho had received from Poyzor's clerk. The amount was LOG 8b 7d. Wit-Mess knew the price of stores ab Wairoa. Flour could be bought at Wairoa at that time at 10s cwt., sugar at 9s. The tea supplied to the camp was charged at 2s lOd per lb, nnd he considered it was an overcharge, as it was an inferior tea. They had been charged 6d per pound for mutton. This ought to have 2nd per lb. The sheep were brought to there from the station, a distance of about 11 miles. In the account there was an item of L 2 13s for a tent, 10 x 12, which usually costs 255. His Honor remarked that all the items in the account were charged about £0 per cent, more than Gisborne or Wairoa prices. Mr Cooper pointed out that the extra freight and packing had to be taken into consideration. Examination continued : A grindstone charged in the account at 24s could be purchased for Bs. By his Honor : To the best'of witness's belief there was no difference between Napier, Gisborne, or Wairoa prices for stores. Wairoa is supplied from Napier by steamer. Examination continued : When witness found out the price he was being charged for the stores, he came to the conclusion that he could not carry out the contract. When he made the arrangements with Poyzer, he told witness things would be charged for at a reasonable price. Poyzer had wages mon employed at the time at Is per hour, and he charged them 14s a week for food. Had the contract been completed, and the stores obtained at a reasonable rate, the profit on the contract would have amounted to L6O. The portion of the bush they had fallen was the heaviest on their section. Cross-examined by Mr Cooper : When he took tho contract ifc was understood between witness and Poyzer that the stores were to be supplied at a reasonable rate. The defendant keeps a store at the Wairoa and keeps an opon store in tho bush for the sale of stores. The bush is abeub 50 miles from Wairoa ; the roid is not a bad one ; a dray can travel to within 20 miles of the bush ; th<? balance of the road is a good bridle track. On th c bridle track the stores have to be packed. Witness had been in Egypt and had been between the Wairoa and Gisborne for the last 12 months, and before that had been absent 3 months. Had been back from Egypt about 5 years. The prices were not stated when the goods were supplied. Did not expect to get the goods at quite the same price as iv town. Mr White is the owner of the land. C. J. Marshall, another of the plaintiffs, said he knew Poyzer, and had entered into an arrangement with him to fall bush. Had fallen about 100 acres. Calculated this by the time the work took and the number of hands employed. Poyzer said in the presence of witness when the notice wrs served on him to inspect the bush that he would not go, as he did not intend making any advance. When he saw him again, after White and Sandy hud been through the bush, he took a letter to him for Mr Day. Had asked him twice for an advance before White had gone through the bush. Poyzer said that they had no bush down at all, and never made any progress payment. Witness had gone through the account as rendered. The prices are on the average 50 per cent, above Wairoa prices. Taking into consideration the price charged for the goods the contract could noc have been completed and paid wages. The profit after paying wages, etc , ought to have been from LGO to L7O. By Mr Cooper : The contract was to have been completed on the 31st October. The contract could have been finished in under six months. The profits would have amounted to about L2O each. This would amount to about 15s a week each clear after paying wages, etc. Did not know the prices Poyzer was charging for the goods. Was not actually compelled to get stores from Poyzer. Mr White came through the bush twice and thrice a week, but he would not get any idea by that as to the amount of busli fallen. By Mr Day : Had intended doing their own packing, and was about to buy a horse when Mr Poyzer bought it over his head. Charles Lamont, laborer, gave evidence as follows : He was working on the bush on Stewart and Wilson's contract ; this section was adjoining Pritchard's. Went through the bush with White and Sandy. John Wilson stated he had a contract at Maungataniwha from Poyzer, but had been unable to complete, as Poyzer was overcharging for the goods supplied. After witness threw up his contract he asked for some money for wages. He had offered employment to witness at Is an hour and would charge 14s a week for food. Charles R^mlose, a farmer, residing at Wahanui, had had contracts for taking goods from Wairoa to Maungataniwha. The price he received for the carting was LO. The roads arc better this year and the cart road longer than at the time witness was carting. He did not lose money ovor the contract. By Mr Cooper : The contract for carting was performed during April to July last year. Witness did not throw the contract up. Poyzer had paid witness hire at the rate of ds per day per horse. This closed the plaintiffs case. Mr Cooper <-hen proceeded with tho defence, and called for- the defence Fred. White, owner of the property on whhh the contract was let, who stated that ho remembered inspecting the work done by the plaintiff. That was about six weeks after tho contract was let, and he estimated then that there were from 25 to 30 acres of bush fallen. About tho sth June made another inspection of the bush, accompanied by one of Poyzer's men and by the plaintiff Pritchard. Estj,

mated they had from 70 to 75 acres done. Parb of the work was not properly done. This was about 10 acres out of the to. Seventy-five acres is the utmost limit of the work done. He considered it would cost from LlB to L2O a ton to pack from Wairoa. By Mr Day.— Had been constantly through the bush while the men were working, and had been able to form a good idea of the amount of the work done. In some places it was possible to .see more than 10 acres of clearing from one point. Had pointed out to Pritchard when he inspected tho bush that there were several trees which had not been felled that ought to have been. Poyzer was making a profit of 3s Gd per acre by sub-letting to the plaintiff. Arthur Poyzer, the defendant, stated he did not keep a store anywhere except for the supply of his men. Did not carry on the business of a storekeeper. The tent was 10x12 and he did not know what it cost him. Tht3 flour cost witness 16s in the Wairoa. In reference to the mutton he told them it would be 5d por lb. He paid from 12s to 14s per sheep, and had to pack them 14 miles. About the end of May had a visit from one of the plaintiffs, who asked witness for a progress payment. Told him that he would inspect the bush, and whatever they were entitled to they would get. Pritchard quite agreed that Mr White should inspect the work, and on his passing the work he should make the payment. If Mr White's estimate had been 100 acres witness would have paid accordingly. Packed his own goods from Wairoa to Maungataniwha, the time taken to do this being about one week. Since the 27th April there has been no draying, as the bridges were carried away by the floods at that time. Marshall had handed witness a letter from Mr Day, and referred him to Mr Hawkins. Had gone to two of tho contractors and offered to allow the mutter to be settled by arbitration. That was in the matter of the charges. By Mr Day : Pritchard did not make a claim on witness for payment of 100 acres. Had asked the plaintiffs to pack the goods themselres, but this they would not do. Mr Cooper would submit that the prico of goods involved only a few pounds. When the account was analysed it would be seen that tho prices were not so exorbitant. The next question of fact was how much work had been done ? The estimate was arrived at very roughly by the plaintiff, and he submitted that White's estimate should be taken as more correct, and if that estimate was taken the plaintiffs were not entitled to a progress payment, as they had already received its equivalent in stores. If the Truck Act had not been in existence the defendant could have put in the account for stores as a set off, and he contended that the Truck Act did not apply to this case. Under the Truck Act his contention was that he did not come within tho section as employer, nor the plaintiff as workman. Mr Cooper quoted a number of authorities to uphold his contention. James Snellie, an employee of defendant, stated : Delivered several of the items charged for in the account to plaintiff. Witness here enumerated several different items which he had delivered, and stated the prices to plaintiffs when giving delivery, They grumbled to witness about the price of the mutton, but said nothing about the price ot the stores. By Mr Day : Mr Poyzer had ten men wovkinn for him besides the contract party; they all had store accounts. Pritchard had asked for his account, but witness had been unable to giye it to him as there were several items in the account at that that time of which he did not know the prices. This closed the case for the defence. [Case proceeding.]

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