Supreme Court.
Wednesday, June 10.
(Before His Honor Mr Justice Denniston),
Hia Honor took his seat at 10 a.m
MATAURA DAIBY FACTORY CASE,
•lames Linton and Jane Linton v. the Mataura Dairy Factory Co., Ltd., claim LBl2 6s 7d, against which the defendants made a counter claim for LlOl Os 2d. Messrs Solomon and J. H, Hosking for plaintiffs, and Messrs W. Y. H. Hall and J. L. Watson for defendants. Heard before a jury of twelve, of whom Mr C. H. Howorth was foreman.
Mr Hoaking in opening said the plaintiff, James Linton, was a certificated cheesemaker, who had been making cheese for the last ten or twelve years in Southland, and had been very successful. Mrs Linton was also a certificated cheese-maker, and he thought they would find from the evidence that she knew as much, if not more, about makieg cheese than her husband, as she had been in the business practically the whole of her life. The Mat&ura Dairy Factory Co. bad been established in 1887, and in 1888 j they entered into a contract with Linton. It would appear that their firafc year's workings had not beeD a great success, as when j I^inton took charge they were in debt. His contract was to manufacture their cheese at 4s 3d per 100 pounds, he finding all material. They were satisfied with him and renewed the contract for two years. After that there were two contracts for single years and in 1894 came a contiact from which arose the present action. On each occasion on which Linton secured fresh oontracts he waß asked by the directors to put in tenders, which he did, and it was worthy of note that his contract price rose during his connections with the company from 48 3d to 5a 6d, showing that the defendants were thoroughly satisfied with the manner in which the work was being doae, and that increase in price probably might have had something to do with the termination of the contract. In September, 1894, Linton and his wife entered into a contract at 5s 6d with the company for a year and that was one of the contracts they had to deal with. An engagement of a year was practically for nine months — the period during which factory operations could be earned on. Defendants admitted this coEi/.acb, except that they stated that it contained a clause giving them power to cancel it in the event of the chetae deteriorating through Linton'a coaducf. In February, 1895, another contract was entered into for a term of three years at 5s per cent, with a reduction of 3i dependent upon the price of cheeße. This contract wm to take effect at the
[ expiry of the one year contract, namely } Ist September, 1895. There was no clause authorising dismissal in that contract. On June Bth Lin ton got notice to the effect that his contract waa cancelled, without giving any reason therefor. The claim now being made in respect of the one year contract was L 62 6s 7d, which was then due for cheese manufactured and not paid for. The company claimed that they owed nothing whatever, but the debt would be easily proved by the production of the company's balance sheet of 1895, in which that amount was placed amongst the liabilities as due to Linton. They were not seeking for I damages for breach of this contract as, although the contract time was not up, the dairying season was. It was claimed by defendants that Linton had misconducted himself by heavy drinking and had absented himself from and neglected the factory; also that his wife waa absent through illness and that the factory was neglected. They also stated that the factory weights had been altered by Linton. While not admitting the whole of these assertions counsel contended that they were not relevant to the case as it was not a question between master and servant, but between one man and others as to the fulfilment of a contract. Then the cancellation appeared to have been made on the assumption that because Linton was drinking in the month of April he would not be able to carry out a contract in the month of May. It was admitted that Linton was a man who occasionally did get on the spree, but this had happened at intervals during previous contracts. The fact was that Mrs Linton, being as good a cheese-maker as he was, provided she was there, things went on equally well. The evidence would go to show that when Linton waa on the spree the directors expressly told Mrs Linton that they were quite satisfied with her being in charge. Thus the imputations regarding Linton's drinking had little to do with the contracts, more especially aa they attempted to anticipate by several months that Linton would be on the spree. The fact was they had been wishing to make use of him to the end of the season, and then get rid of him for their own reasons. Very little choese was to be made during that part of the season when he was on the spree. .Since he had left Mataura he had filled another appointment, and if the Mataura people had kept him it was reasonable to suppose that he would have kept as sober as he had since. Mrs Linton had been absent from 14th April through illness for fourteen days, but she was up and about by the first of May, and during the whole of the time she was away Linton was there, and in addition a cheese expert from Dipton was working at the factory. With regard to the alleged alteration of weights it was worthy of note that there were two machines used side by side and indiscriminately, and that Linton was only accused of altering one of them. If there had been any advantage to him in altering the weights why did he not alter both ? The facts were that it was occasionally necessary for him to adjust the machine !to ensure perfect correctness, but as he had not to pay for the milk he had absolutely no motive for causing the weights to be incorrect. The truth was Linton's sprees had not affected the making of the cheese. Instead, he raised the factory from one in debt and uuprosperous to that of a factory turning out the first quality cheese of Southland, which headed the list in the London market, and in the month of April duiing which he was supposed to be on the spree, and for which his contract was cancelled, it gained the prize from all New Zealand at the Hawera show. Even after the contracts bad been put an end to Mrs Linton was approached to induce her to put in fresh proposals — that of course would bo to put in contracts at a lower price. The whole trouble was the fall in prices. When the one year contract of 1894 was entered into the price Linton was paid left a margin of profit to the company. In the month of January the directors, without forecasting whether cheese would remain at those prices, entered into a fresh contract, at which time New Zealand cheese would not have reached the London market, so that they could jiot ascertain if any alteration in prices had taken place, and thus they entered into their three years' contract blindly. Comparison of prices showed that the 1894 season commenced with cheese ad 55s and 56s and the 1895 season atj 48s and it then went steadily down to 40s. The directors felt no doubt that they had made a bad bargain, and as indicating this there was a petition got up in Mataura to put an end to the ccntracton the ground that Mr Linton was getting too much, and at one of the meetings of directors it was stated that it was proposed to end the contract, not because the price was too high, but on some Other ground. At the meeting at which the balance sheet alluded to was brought up several shareholders complained that the contract was a bad bargain. At the time the directors cancelled the contract they were warned not to do po and there was a split in the camp over the matter. With regard to the question of damages for breach of the three years' contract they claimed L 750. The output of the factory was from 160 to 170 tons per season. During 1894 the output was 163 tons and as they would see from the balance sheet the amount earned in that year by Linton at 5s 6d per cwt was LIOOO. As the expenditure for labour and materials amounted to L4OO it left him a margin of L6OO. Under the new contract the price was reduced by 6d per cwt., which would be equivalent to LIOO a year. Thus at LSOO a year hia profits for the three years would have been LISOO. They were only claiming half of this as Linton had had a chance since he left of obtaining other employment in the North Island, but as the place was not so good he had only been able to make a profit of LIOO for the season. It was not likely that with a fall in the price of cheese he could obtain as satisfactory contracts as that which had been cancelled. There was a counter-claim of LB3 0b lOd, by a loss defendants said they sustained through the cheese Iturned oub being inferior as a result of Linton's drinking. That they would have to prove. Another claim of LI 7 19a 4d for whey was admitted.
James Lint on, Jane Lin ton, and Jessie Linton gave evidence as to the conduct of the factory.— John Thomson, storekeeper at Mataura, stated that he had inspected the cheese after the period in which Mrs Linton was prevented from beiog at the factory, and found it in good order. — Wm, Robert Cameron (Dunedin), dealer in dairy produce, gave expert evidence as to the fall in prices of cheese in the London market, add also stated that the product of the Mataura factory was equal to the beat in New Zealand. This was the case for the plaintiffs. Mr Hall, for the defence, said that in dealing with the question of motive it had been suggested that the object of the company in cancelling the agreement? was that they saw that the cheese market was falliDg, and as they were giving the maker a high price they wanted to get out of the bargain by means of a quibble — took the chance of his misconduot to get out of it. Evidence would show that the company had a fixed price for their cheese for the whole of that season with Messrs Tothill, Watßon and Co. , ao that it did not matter to them how much the price might go down in the London market. Of course that was only for one season, but they could not at that time tell how high the London market might rise to in the following season. As a matter of fact, Linton'a conduct had been so bad that they felt they would be imperilling the interests of the shareholders and milk suppliers by retaining him. This was not the first time in which his drinking habits had been so bad. In the past there had frequently been cause of complaints on this ground, and he had sent apologies to the company and promised to make amends. The company had made his wife a party to the first agreement to protect themselves. Still he went on worse than ever till he had to be taken to the hospital and treated for illness consequent upon drinking. With regard to the firet contract, for the breach of which no damages were claimed, the company claimed that they lost through the cheese manufactured being inferior LB3 Oa 10d, the inferiority arising from Linton'a misconduct. By his misconduct be practically broke that contract. Counael drew attention to the fact that though Mrs Linton was |a party to the first contract she w&s not in the second, bo that it did not matter how ready she was i in doing her .husband's work, that bad . nothing to do with the defendants, They
had to look to Linton only for the fulfil ment of the contract, and if they thought; in advance that his conduct w»« Buch as to lead them reasonably to believe that he would not be able to carry out that contract they were within their rights in cancelling it. That was a question of law on which hie Honour, would direct the jury. Aa to the question of damages, the olaim was based on the assumption that the output of the factory w6uld continue the same, whereas it was a fact that owing to the rise in the price of meat and the_ fall in cheese the system of farming in the district had been altered and the output, even had Linton remained, would have have been much less than previously. The actual amount he would have made if he had stayed at Mataura would have been probably L 274 a year, making L 822 for the three years, which, if the company applied the generous halting process— as he had no doubt they would— to it, as they had to the LISOO, the amount claimed would he considerably reduced. The question for the jury to consider principally was : were the directors — who had entrusted to them the interests of a large body of shareholder and milk suppliers— when they found the man going on aa he was after repeated protests, apologies and promises of amendment, justified in getting rid of him at the time they did, namely, on 13th May, when he was to begin work on Ist August, thus giving themselves two months and a half in which to fill a place with a competent man ? A qualified man could not be picked up to fill such a position at a moment's notice. As to his misconduct, evidence would be given to show that he was habitually and constantly drunk, and he contended that in " all contracts in which personal services were to be rendered it was an implied condition that the man who was to render them led his employes to infer from his conduct that he would be fit to carry it out. Then there was the question of weights. Evidence would be produced to show that Linton had altered the weights', the effect of which was not only to cause considerable dissatisfaction amongst the suppliers of milk, but also to give Linton credit for producing more cheese in proportion to the milk supplied than was actually the case. It would be shown that boyß had been left in charge of the factory, and whereas one of the machines would only weigh 10441 b the cans which contained the milkwould,whenfull,weighlll6lb. Lead had been punched out of the holes of the weight* of the machine. With regard to the damage to the cheese expert evidence would be given to show that the quality had deteriorated to the extenb claimed for. Evidence would show that Linton had made his will and expressed his intention of drinking himself to death.
Allen Hendry, medical practitioner, Robt. McGilvery, Wm. C. L*dbrook, Alex. Stevenson, W. Pryde (chairman of directors of the Mataura Dairy Factory Co), John Gray and Alex. Mutoh were called for the defence, and at five o'clock the court adjourned until ten o'clock next morning.
Permanent link to this item
https://paperspast.natlib.govt.nz/newspapers/ST18960611.2.19
Bibliographic details
Southland Times, Issue 13478, 11 June 1896, Page 3
Word Count
2,608Supreme Court. Southland Times, Issue 13478, 11 June 1896, Page 3
Using This Item
No known copyright (New Zealand)
To the best of the National Library of New Zealand’s knowledge, under New Zealand law, there is no copyright in this item in New Zealand.
You can copy this item, share it, and post it on a blog or website. It can be modified, remixed and built upon. It can be used commercially. If reproducing this item, it is helpful to include the source.
For further information please refer to the Copyright guide.