CLAIM ON A CONTRACT

Taranaki Daily News, 9 June 1931, Page 8

CLAIM ON A CONTRACT

QUESTION OF NOTICE RAISED.

COMPENSATION SUED FOR.

Alleging that hi<s contract had been I abruptly terminated without the length of notice provided for in. the agreement of his employment, Reginald Slater, Stratford, sued Paviour Smith, Ltd., Wellington, export and indent agents, for £272 14s 4d. The case was heard yesterday in the Stratford Court by Mr. R. W. Tate, S.M., who reserved his judgment. Mr. A. Coleman appeared for plaintiff and Mr. D. M. Findlay acted for the defendant. In outlining the case for plaintiff, Mr. A. Coleman said Slater had been engaged by the company to secure dairy produce on consignment and to sell certain lines for which the company held the New Zealand agency. Slater considered he had been employed for two years from February 5, 1930, as there was a clause in the agreement stating that plaintiff was to be given one year’s employment and thereafter one year’s notice of termination of contract, so that, plaintiff contended, he had to be employed for at

least two years. Slater was given commission and as an advance against it was paid £4 a week. In the event of the commission not reaching that sum plaintiff was still to be paid the £4, which really amounted to a salary. Slater commenced work but did not ha,ve much success with the dairy produce, though he effected sales of other lines. Towards the end of the year the company terminated the engagement. Plaintiff said the agreements of employment were dated February 5, 1930. Besides buying dairy produce witness sold certain lines of goods. Among them was £270 14s 6d worth of insulation board and another lot of board worth £224 16s. The latter order had been a repeat order from Williamson’s (Masterton) theatre. The order had been sent to his company, said witness, but he understood that the board had been supplied by John Burns and Co. How that was arranged and why he did not know, as it was no concern of his. Nevertheless he maintained that he was entitled to commission on repeat

orders, no matter through whom the company discharged the order, and as a matter of fact defendant had allowed him commission on orders supplied by John Burns but at 1| per cent, and not at 10 per cent. Neither at the time of the signing of the contract nor before was any mention made of witness receiving only 1J per cent, on orders supplied by firms other than defendant. Witness therefore considered that he was entitled to full commission on orders secured through his work. When the company sub-let its agency for the special line of insulation board witness was advised that he would receive only 1£ per cent, on repeat orders from Williamson’s. Slater replied that , he was not concerned with what action defendant took in subletting his agency, except that he wanted the 10 per cent, commission provided for in the contract. Commission on dairy produce was to be at the rate of i per cent. < On September 2 Smith senior wrote sayino- that the business had not turned ■ out as he had anticipated and suggest- 1 ed that Slater cancel the agreement. He refused to do that. Under the date ' of December 24 plaintiff received an- ’ other letter proposing to terminate the ’ contract at the end of January, 1931. In reply plaintiff drew attention to the .

clause ’ stating that he was to be employed for one year and thereafter until one year’s notice of termination had been given by either party to the contract, and said he would have to hold defendant to the agreement, especially as he had bought a car in order to do the work and as he had arranged the instalments on it to cover two years. Cross-examined by Mr. Findlay, plaintiff denied that he had been told at the outset that he would receive 10

per cent, commission on insulation board only until defendant’s stocks were disposed of and the agency was sublet. Though he had not been successful in securing dairy business last season he had hoped to get some of the business this season and thus compensate for the poor initial year. , To save time in order that the Wellington witnesses might not have to stay in or return to Stratford, in the event of the case not being finished at the end of the day, Mr. Findlay refrained from giving an opening address. Samuel Thomas Paviour Smith, governing director of the company, said it was part of the business of his firm to obtain dairy produce on consignment. Witness met plaintiff early in 1930 and some weeks ■ later offered him a position as Taranaki representative of the company and J per cent, on all the business he obtained. A general discussion ensued and witness offered £4 a week as an advance against the commission. Plaintiff agreed to that and discussion revolved around the question of duration of the contract. It was pointed out to plaintiff that he had no experience of the dairy business and witness’ son suggested giving Slater six months’ trial, but witness had said it was only fair to give plaintiff a year’s trial. If the plaintiff were to be reengaged it would be from year to year. Plaintiff agreed to the proposals, which were typed as an agreement by wit- ] ness’ son. Witness was not present when it was signed. At that time witness had £5OO worth of insulating laths and Prcstwood on hand that he was particularly keen, for business reasons, to get rid of within a few months. It was therefore agreed that plaintiff should have 10 per cent, on insulating board and 5 per cent, on Prestwood. When witness sub-let the agency he told Slater, while on a visit to Tara-

naki, that Slater would get half defendant’s commission, or 1J per cent., on repeat orders from Williamson to John Burns and Co. Dairy factories in Taranaki, witness said, preferred as a general rule to sell rather than consign. The firm which the company represented -would not buy in New Zealand, so that it was not surprising that plaintiff had been unable to get business. There was even less chance of his getting it this year. During cross-examination witness said he did not see the agreement after it had been typed as he had been ordered

by the doctor, about that time, to take three months’ holiday. Mr. Findlay contended that as it must be interpreted by law the agreement provided that plaintiff should be employed for one year only. If the language of the agreement were ambiguous then the evidence concerning its construction would be admissible to show the intention of the employer parties to the agreement. He submitted that plaintiff’s evidence on the two points in issue regarding the insulating board was unconvincing, uncertain and insufficient.

That where the words of an agreement were precise,- evidence should not be admitted in reference to any verbal understanding was the submission made by Mr. Coleman, who quoted an authority in support of his statement. Mr. Coleman quoted four more authorities bearing on the case and drew attention to the fact that none of the authorities m.ide mention of any ambiguity in the agreements , with which their judgments were concerned. “This is most certainly a case wherein the wording of the agreement should be taken at its face value,’’ Mr. Coleman stated.

PARK GRANDSTAND IMPROVED. Substantial improvements are being effected to the area beneath the grandstand in Victoria Park, Stratford, under the supervision of the borough engineer (Mr. L. B. Davis). Partitions, fitted on concrete bases where necessary, have been erehted to provide two commodious dressing rooms, one on each side of the entrance passage. Shower rooms open off each dressing room, while on the western side a committee room and a ladies’ retiring room occupy the rest of the available space. These rooms are reached by doors placed in the exterior wall at the rear of the stand. On the eastern side there will be a large store room and another rom for men.

In dividing the space, a long partition has been made at a point where the slope of the stand reaches about the height of a man. The enclosure thus formed is to serve the Domain Board as a further repository for tools and materials. NGAERE NOTES. The coming of age of Miss M. McDonald was celebrated in the Ngaere hall on Wednesday. About 70 guests were present to tender their good wishes. An enjoyable time was spent in dancing, games and music. The supper room was tastefully decorated. Hostesses for the evening were Mesdames Scott and Walsh.

The programme submitted at the Ngaere Sunday school prize-giving and presentation to Miss Tecofsky was as follows:—-Pianoforte duet, Helen and Ora Simpson; song (“Railway Train”), scholars; recitation, Gwen Brisco; song (“A Bird in the Hand”); recitation, Ida Taylor; song, Elaine Harre; pianoforte solo, Ora Simpson; recitation, Jimmy Fullerton; song (“Birdie’s Ball”), scholars; recitation, “Red Riding Hood”; recitation, Gordon Kofoed; pianoforte solo, Dorothy Pedersen; recitation, Jimmy Coleman; dialogue, boys and girls; song (“Tip-toe”), scholars; recitation, Jack Blizzard; violin solo, Garnett Harre; dialogue (“The Seasons”), scholars; dialogue, senior girls. The school girls’ basketball team travelled to Manaia to take part in the tournament held there-. The girls played well but were beaten in the semi-finals by Hawera.

Work on the tennis court at the school is well in hand and should be completed within a fortnight. GENERAL ITEMS. The folowing will represent Celtic first juniors against Pukengahu at Stratford on Thursday:—D. Jones, B. Harris, J. Carryer, T. Sullivan, K. Elgar, B. Stevens, Lawrence, Withers, McMillan, T. Stevens, Holder, Burton, Pettigrew, Farmer and Foefoed. Emergencies: Hayton, Milne, Weston, Mangin, Dawfins.

Through' the generosity of Mr. S. A. Mann, Mahoe, prizes of 10s., ss. and 2s. 6d., with a kite as fourth prize, will be offered to children under 10 years of age for a 1 novel kite-flying competition to be held in eonenction with the Stratford winter show. Entry will be free, but intending competitors must hand their names to the secretary (Mr. F. T. Hale) before July 4. The competition will be held in Victoria Park at 2 p.m. and will last an hour. String, not wire, may be used to fly the kite. The winning kite will be exhibited at the show the following week. KING’S THEATRE TALKIES. METRO-GOLDWYN BIG SPECIAL. Spectacular and thrilling to-the nth degree, Cecil B. De Mille’s first talking production, “Dynamite,” allows this super-director to take one of the biggest bows of his career and provides screen patrons with a production that should keep all of them talking for many weeks after seeing it. Scintillating society panoramas are blended into an enthralling dramatic situation in which a coal miner and his rival for the hand of a society girl face death together, a thousand feet below the earth. One must praise whole-heart-eely the exceptional work of Conrad Nagel as a young society gadabout, Kay Johnson, brilliant stage star, as a girl of high social position, and Charles Bickford, another stage favourite, as Hagon Der-k, the miner.