GRAVEL ROYALTY

Southland Times, Issue 23346, 2 November 1937, Page 5

GRAVEL ROYALTY

CLAIM OF FARMER SUCCEEDS JUDGMENT AGAINST ONE DEFENDANT Judgment in the case in which William J. Hanning, a farmer, claimed from William McLelland, a contractor, of West Plains, and Martin Larner, a farmer of Makarewa, the sum of £l5 6/- royalty on gravel taken from the plaintiff’s land has been given by the Magistrate (Mr W. H. Freeman). Judgment was given for plaintiff against Lamer for the amount claimed and costs £5 13/6. McLelland was allowed £2 12/- costs against Larner. The judgment states: This is a claim for £l5 6/- for royalty on gravel taken from plaintiff’s land at sixpence a cubic yard. It is admitted that plaintiff is entitled to recover the amount of royalty from one of the defendants. The dispute is between the two defendants as to which one should pay the royalty. Defendant Larner took a contract with the Southland County for forming and gra- , veiling a road. Lamer did the formation work and when it came to the gravelling he approached McLelland. McLelland says he merely did the carting and contracted to do the carting only. He says Lamer gave him to understand he would pay the royalty. McLelland approached plaintiff telling him Lamer would be paying the royalty. This is admitted by plaintiff. Defendant Lamer contracted with the county at six shillings a cubic yard. He says he sub-contracted with McLelland at 5/3 a cubic yard for McLelland to do the carting and supply the gravel for the job at his own cost. He considers that supplying the gravel included paying the royalty. Lar ,or admits Martin B. Larner, his son, negotiated with McLelland. Nowhere in his evidence does the son say what royalty was discussed with McLelland. The question is one of credibility. I am far from satisfied with Larner’s evidence. If he knew, as he must have known, that royalty was payable why did he not say so in as many words to McLelland. In order to avoid payment he is relying on the “supply of gravel” to include payment of royalty also. I am satisfied McLelland was led into accepting the contract at 5/3 a cubic yard believing the royalty was payable by Lamer. Lamer says he lost on the other portion of the contract and it appears to me he is endeavouring to make up some of the alleged loss by refusing to pay the royalty. Lamer on his own showing, if I accept his evidence, was not frank with McLelland. Judgment will be for plaintiff against Lamer for the amount claimed, £l5 6/-, with costs £5 13/6. McLelland will be allowed costs against Lamer, £2 12/-.