SOUTHLAND CASES

Southland Times, Issue 19656, 5 October 1922, Page 6

SOUTHLAND CASES

SUPREME COURT JUDGMENTS. (Per United Pre® Association.) DUNEDIN, October 4. Mr Justice Hosking gave judgment today_ in actions recently heard in the Supreme Court:— The case J. Johnston Sons, Ltd., Invercargill, v. the Waikiwi River Board, took the form of an originating summons for the purpose of determining whether plaintiffs were entitled to certain rights which they claimed under a contract with the defendant Board. The contract entered into between the parties was for the work of widening, deepening ,and straightening the Waikiwi stream. Parts of the stream wpre bounded by bush and other growth, and part of the work contracted for was the clearing of the bush and growth from those parts. Plaintiffs claimed that all logs, underbush, vserub, and other vegetation removed by them from the area to be cleared became their own property and could be disposed of by them as they thought fit, but the Board claimed that the timber belonged to the owner of the land. It was allowed that plaintiffs had, without the Board’s consent, used timber and logs for fuel for the. engines employed by them on the work. His Honour said that the timber and logs were of monetary value, and the question between the parties really only concerned these subjects. He therefore confined himself to them. His opinion was that plaintiffs were not entitled under their contract with the Board to appropriate to their own use whether for fuel or otherwise any of the timber and logs from the land cleared. II<? would allow eight guineas costs to the defendant Board.

Judgment was also given by His Honour in a case of appeal on a point of law against the decision of the Magistrate at Gore. Appellants were Beattie, Coster, and Co., Ltd., and respondent James Duncan. Respondent was a coal-miner in the employ of the appellants at date of an industrial agreement entered into between the Mataura Miners’ Union, and the employers (including appellants), and had been so employed during a period from the date of the national agreement (March 8, 1920). He continued in that employment, after September 20, 1920, claiming to be entitled to payment for his services at the retrospective rates provided for under the industrial agreement. He commenced an action a few months ago at Gore to recover an amount made up of the difference between what he had actually received and the amount he would be entitled to at the rates made retrospective. Judgment was given in his favour, and against such judgment the appeal had been brought.

The case stated, His Honour said, did not give the Magistrate’s reason for his determination, but it set out that he held that th? agreement could be admitted as evidence of respondent’s contract of service, and that it was not a condition precedent that the document should be signed by all the parties or that it should be registered as an industrial agreement. The question of law txj be decided was whether there was evidence before the Magistrate on which he could properly find that it became a term of the respondent’s service that from and after the date of the industrial agreement. (September 14)%0r at any date from and after the date from which the hewing rates were to begin (September 20) he should be paid at those rates for his services from March 8. After reviewing ?t-he case at length His Honour dismissed Ithe appeal and fixed costs, as the decision might govern other pending cases, at £lO in addition to Court fees to be paid by appellants.

Judgment was also given in the case in which James Samson & Co’., claimed from Murdoch McKay, of Winton, the sum of £5OO as commission for services rendered to the defendant by plaintiffs as hotel brokers in connection with the sale of the Winton Hotel. Plaintiffs had alleged that defendant employed them to sell the hotel for £13,750 and the stock and furniture at valuation, and that the usual commission was to be paid by the defendant to the plaintiffs. In the alternative plaintiffs alleged, that they were employed to find a purchaser on those terms. 1 Then they alleged that they sold to one Pringle, or in the alternative that- they found him a purchaser in accordance with their instructions. His Honour, in giving judgment, said plaintiffs had failed to show that they produced a person willing to enter into a binding contract on the term* contained in their mandate, plus the terms which the mandate left open for future settlement. His Honour was therefore of opinion that plaintiffs could not maintain their claim for remun-

eration. They had not attained the result on which their commission was to depend. Judgment was given for defendant with costs as per scale and the expenses of witnesses and disbursements.