DAIRY BONUS CASE.

Stratford Evening Post, Volume XXXV, Issue 1, 24 December 1912, Page 7

DAIRY BONUS CASE.

MERHTENS V. ELTHAM DAIRY COMPANY.

JUDGMENT FOR DEFENDANT,

In. the claim of Mr Robert Mchitons v. the Elt'ham Co-operative Dairy Co. for balance of bonus on milk supplied to the company by plaintiff during the season l9li-19i2. Mr Kenrich, S.M., has now delivered judgment. After reviewing the evidence a® to the procedure of the defendant company in the matter or decreasing supplementary payments (or bonus; in which one must be both a shareholder and a supplier to participate, his Worship says: “All the material facts in the case are admitted, and the argument has been on questions of law only. ... I am of opinion that plaintiff, to successfully sue as an outsider or as if he were a non-share-holder must prove a special contract with defendants to share in the profits. Article 8a expressly says a non-shareholder shall not participate in the profits; as such he sells his milk eacli month less a deduction he agrees to being made and cannot have any claim on those deductions unless he proves a special contract, which in my opinion lie has failed to do. Plaintiff is a shareholder, and it is from that point of view I shall non consider his claim. It is admitted In

defendant company that the plaintiff as a holder of 66 shares would be entitled to the balance he now claim:, of the profits had article 8a not been amended. I have therefore to decide whether plaintiff, notwithstanding the amendment, is entitled to the balance he* claims. The effect oi the amendment to article 8a is to require the plaintiff, who was the holder of 65 shares, during 1911-1912 yea: to take up an additional 66 shares if he wished to participate to the full extent in the division of the profit: for the amendment now requires him to hold one share for every 150 gallons instead of 300 gallons of milk supplied. The plaintiff refused tc

Comply with the amendment, but demands his full share of the profits or, the amount of milk supplied irrespective of the number of shares held In him. The company have paid plaintiff a proportion of the profits on ever; 150 gallons of milk sold which is re presented by one share and offered tc pay on the balance of milk if a proportional number of shares were taken up. Mr McYeagh (for plaintiff) contended that payment should he made on every 108 gallons sold represented by one snare upon the ground that the amendment to article 8a having been passed during the currency of the year 1911-1912 can not applj to that year as it would be retrospective and therefore bad. Mr Spence (for the Company) contends (1) that the amendment is not retrospective but only indicates the method upon which the supplementary payment is to be arrived at j (2) that if it is retrospective it is not bad. lam of opinion that the amendment to article 8a which is not questioned on- any other ground than being retrospective is not bad, if the amendment is really retrospective. lam satisfied the articles may he made retrospective. Mr Spence has raised a further defence namely the plaintiff having accepted a less sum than he claimed as duo is barred from claiming the balance. The law on this subject is that where the amount due is uncertain or disputed, payment of any sum agreed between the parties is'a satisfaction of the whole liability. In the present instance the amount payable was known, the only question was under which scale it was to be paid, namely, under article 8a or under the amended article. The, cheque was calculated under the amended article and brought to plaintiff by his employee who is not necessarily his agent, it was cashed by plaintiff and he immediately afterwards demanded the balance which would he payable if made up under article Ba. There was no agreement to accept the lesser amount between the parties; there had been no dispute between the parties until after payment. Ido not think under these circumstances plaintiff is barred from proceeding. Plaintiff is hound by the articles being a shareholder and he has been paid his bonus in proportion to the shares he held and has ■ no right to a bonus on the further milk sold unless it is represented by one share for every 150 gallons sold. Judgment is for the defendant with costs. At the hearing, Mr McVeagh, of Eltham, appeared for the plaintiff and Mr R. Spence, of Stratford (instructed by Symc and Weir, of Eltham) for the defendant Compan y.