SHAREMILKING CASE

Te Aroha News, Volume XLI, Issue 6405, 20 October 1923, Page 5

SHAREMILKING CASE

TAGGART v. HART JUDGMENT GIVEN IN WAITOA ACTION Mr J. H. Salmon, S.M., gave judgment at the Morrinsville S.M. Court on Monday in the case between W. G. Taggart, of Waitoa, and F. G. Hart, of. Waitoa, and counter-claim. Mr E. McGregor (Morrinsville) appeared for the plaintiff, and Mr G. Gilchrist (Te Aroha) for defendant. In his judgment the magistrate said: The plaintiff and defendant were parties to a sharemilking agreement, and the statement of claim and coUnter-claim contain respectively a large number of items. The solicitors for the parties have, however, succeeded in narrowing the issues to comparatively a few items. For some eight months prior to July 1, 1921, the plaintiff waS employed by the defendant on wages, but on that date a sharemilking agreement was entered. A copy of this agreement was put in evidence. It contains many provisions usually embodied in agreements of this nature, and it is expressed to be made for a term of two years from the day of date. I propose to deal first with such items of the stateixxent of claim as remain in dispute. Clause 1: The only items in dispute under this head are the alleged purchase by defendant on behalf of the plaintiff of a shirt and some cigarettes, the cost of which items amounting to 15/-, has been deducted by the defendant from the wages due to the plaintiff. The onus of proving these transactions is upon the defendant, who admits the deductions, but claims to have had authority to make such deductions. On the incomplete evidence presented I cannot find that he has discharged the onus of proof, and the plaintiff will therefore be entitled to be credited with the amount in dispute, 15/-. '■•••

Clause 6 contains five items still in dispute. The item paid Britton for fencing turnips, 12/-, is the first of these. It was not denied that this work was done, and such woi’k is not, I think, within the province of the sharemilker under the agreement. The defendant alleged some arrangement with the plaintiff with regard to this-work, but it is impossible on the evidence to find that such an arrangement was made. The plaintiff is entitled to succeed on this point. The item for foot-rot cures is denied and the onus being upon the plaintiff he -must fall upon this point. The item for erection of calf fence must, I think, fail; On a proper construction of Clause three of the agreement this woi’k was within the duties of the sharemilker. The contract in which the duty to “erect and maintain all fencing required for the yards and piggeries” refers to calves and pigs, and this duty cannot be limited, I think, to pig yards only. . With regard to the item “three men employed haymaking” here again the fact that these men were so employed is not denied by the defendant but he alleges some arrangement with the plaintiff, but it is not proved by the defendant that such an arrangement was concluded, or even understood by the plaintiff. This item is allowed.

The item “O’Connor for mending bridge” appears to have been woi’k on a culvert or drain crossing. The defendant cannot dispute that the woi’k was done, and, if done, the defendant, I think, was liable to pay for it. ,Tbis item is allowed. With regard to the claim for carting pigs to sale, although plaintiff was entitled to a half share in the profits from pigs there is nothing in the agreement which makes him responsible for driving them to market and I think his claim for half the cost for three trips is reasonable and should be allowed. He, however, admits that he has charged the defendant 5/- a trip and he also admits 13 trips. The item should, therefore, be only £3/5/-, and not £3/15/-. With regard to the whole claim: The parties have agreed that £69 15s 5d is due to the plaintiff, excluding the items in dispute under clauses 1 and 6 above-mentioned, and I have found in favor of the plaintiff for 15s, under clause 1, and for £l2 Is under clause 6. The plaintiff is, therefore, entitled to judgment on the claim for £69 15s sd, plus £l2 16d, making a total of £B2 11s sd.

With regard to the counter-claim, the only clause in dispute is clause 2, and the more serious items of this clause are based upon the alleged negligence of the plaintiff to comply or to sufficiently comply with the terms of the agreement. The items under this head are as follows: 2 (a) Depreciation in value of 13 cows through loss in each case of one quarter, £52; (b) depreciation in value of 13 rows

contracting weak quarters, £26; (c) loss of one cow by death, £2O; (d) diminution in the milk supply by reason of (a), (b) and (c) above and generally, £SO; (e) two-thirds of the difference in value of 7831 b of butterfat classed second grade at 2d per lb below first grade price at £6 10s sd, £4 7s; (f) estimated cost of removing manure from yards, filling yards, gateways, bridge approaches , and general repairs, £SO. The greater part of the evidence called for the defendant was directed to these points, and I have therefore bracketed these items. The evidence establishes beyond doubt that there was a certain amount of negligence in the manner in which plaintiff performed his part of the agreement. He was not infrequently drunk, and on and after such occasions he would absent himself from his duties for one or more days at a time, leaving the man employed by him to carry out their work without proper supervision. There is no doubt also that he did not maintain that standard of cleanliness which might reasonably be expected by his employer, and certainly not that standard which was required by the dairy inspector, though there appears to have been some improvement after several visits from the inspector. The plaintiff did not keep the shed, yards and machine clean in terms of clause 3 of the agreement, but allowed the manure to accumulate, and some of the yards to become correspondingly muddy; this applied particularly to the yard beyond the concrete holding yard, and also the yard where, the cows stepped out of the bails. It was stated in evidence that the cows in some places would be dragging their udders through the mud. The dairy inspector found it necessary to make certain requisitions as to the removal of manure, but these, he states, were not carried out. There can be no reason for not accepting the evidence of the dairy inspector on these points. He is an impartial witness, and he explains the comparatively favourable nature of his first report as due to his desire to give the plaintiff an opportunity to <?lean up and also to the fact that he considered the plaintiff was overworked.

I have dealt with these five items of the counter-claim together because the evidence was directed to show that the alleged depreciation in the value of certain cows through the loss of quarters or through the dedevelopment of weak quarters, the dimunition of the milk supply by reason of such fact, and the secondgrade quality of some of the milk might all be attributed to the plaintiff’s neglect to keep the shed and yards''clean, and particularly to the filthy and muddy condition of some of the yards owing to the failure of the plaintiff to remove the manure and keep the yards in repair. The evidence showed that the farm consisted of flat land and that the herd to be milked was a comparatively large one, but on the whole I think it is established by the evidence that if these yards had been kept in something approaching pr’ope# condition there was no reason why the milk should not have been graded higher. Nor can the phenomenally wet winter which we have just experienced be blamed for the state of the yards because the evidence shows that the matters above referred to had given the defendant grounds for complaint before the wet weather set in, and that he got Mr Martin and Mr Saxton to examine the cows on the 16th of April last. There is, moreover, the evidence of the dairy inspector as to the state of the shed and yards before that date and even in the summer months. Mr Martin and Mr Saxton found 15 cows with bad quarters. Some six of these were blind in one quarter while the remainder were weak in one quarter, In the opinion of Mr Burton, M.R.C.V.S., who expressed that opinion after hearing the evidence, the condition of these cows was due to septic mammitis attributable to a dirty yard or to dirty conditions.

It is impossible, however, to find on the evidence that all the unsoundness in these 15 cows was due to the negligence of the plaintiff, because there is evidence that some three cows had a weak or a blind quarter at the beginning of the first season. There must also be taken into consideration The fact that in a large herd such as this a proportion of such cases must be experienced during the season. Mr Martin and Mr Saxton admit a proportion of such cases in their own herds. I arrive at the conclusion that the conditions which have been described by the witnesses were a contributing factor in the proportion of cows so affected, and that it would be unreasonable to assess the damage to which the defendant is entitled upon the basis that plaintiff’s negligence was responsible for the whole of the trouble. There is a diHieult.y in assessing the damage for

which plaintiff was responsible, and in doing so I prefer to err in favor of the plaintiff in under-estimating the amount of such damages. I therefore assess the damages to which defendant is entitled in respect of the causes of action contained in clauses (a), (b), (d) and (e) of clause 2 of the counter-claim at £SO.

With regard to the claim under clause (c) for the loss of one cow by death, it is probable that the death of this cow was attributable to lack of proper treatment after calving, but in view of the evidence that defendant himself took her in hand and treated her shortly after calving, it is impossible for me to find that plaintiff can be held solely responsible for her death.

With regard to the condition of the separator, and the loss of milk referred to in clauses (f) and (g) I am satisfied on the evidence that the’ separator never did work satisfactorily—at least for any length of timeand the plaintiff cannot be held responsible for the repairs that were rendered necessary. It is extremely doubtful, however, whether the plaintiff was justifiediin any circumstances in giving the whole milk to the pigs or otherwise wasting it on those occasions when the separator was not working properly. The defendant admits that the separator gave trouble in Peat’s time. There is Evidence from Messrs McGregor and McPherson’s letter to defendant dated March 9, 1922, that the separator was givingtrouble then. The plaintiff had been paid in full for his share of the value of the milk wasted as above mentioned, and I do not t{iink that the defendant can recover on this item of the counter-claim. I think, therefore, that items (f) find (g) must be regarded as not established. I think also that the items under clauses (h) and (i) are not sufficiently established by the evidence, and that these claims must fail. The claim under clause (1).. refers to jthe cost of putting the yards, gateways, etc., in repair. I find that this claim, which refers to those matters - which gave rise to the major part of the trouble, is established, and the amount claimed is not unreasonable. . The defendant .will be entitled to judgment on this item for £SO. With regard to the claim under clause (k), defendant’s evidence on this claim is not contradicted, and the work clearly comes within the province of the sharemilker under clause 3 of the agreement. The defendant is, I think, entitled to succeed on this head. / On the counter-claim as a whole the defendant is, by agreement .. of the parties, entitled to recover £55 6s 6d, exclusive of the items above referred' to which were in dispute. I havefound for the defendant for £SO in respect of items (a), (b), (d) and (e) of clause 2 ,of the counter-claim, and for £SO in respect of item (i) and for £9 10s in respect of item (k).‘ ,The defendant is, therefore, entitled to. judgment on the counter-claim forV £164 16s 6d. - With regard to the question of costs, in these cross-actions where each party succeeds to some extent on his claim, I think it is fairer to apply section 163 of the Magistrate’s Courts Act and to allow each party, . his costs on the amount recovered. On this basis the plaintiff will be entitled to judgment for £B2 11s 5d and costs £lO 12s 6d. The defendant will be entitled to judgment for £164 16s 6d and costs £26 14s 3d. A further incident in the case was heard on Monday, when W. G. Taggart sued F. G. Hart for £6B Is 2d, the amount of bonus. This was a formal claim as defendant had admitted at all times the liability.

Judgment was given for amount j claimed' and costs.—Morrinsville Star.