MAGISTRATE'S COURT, HA MIL TON.

Waikato Argus, Volume XV, Issue 6043, 17 September 1903, Page 2

MAGISTRATE'S COURT, HA MIL TON.

Yesesterday. (Before Mr W. H Northeroft, S.M.) CotIOROUQU V. COATES.

Me Dyer for plaintiff and Mr Swirbrick for defendent This was an aetiou for »hc receiving of £6S for alleged injury to an engine hired out by plaintiff to defendent. The statement of claim set forth the following particulars : £45 for repiirs, £2O for convoying engine to Auckland and back, £2 10s fee to engineer for examining and reporting, and 10s a day's pay for plaintiff on fld count, of lost time.

Martin Coborough deposed to being owner of the engine in question. It was hired to Mr t'oatos at por week, who under the contract was to keep the ePuine in thorough order and repair, an.l he liahle for all The engine was in a disgraceful Btate when returned to Matamala.

Defendent then gave evidence as to particulars to claim as stated above. Henry Beaney, engineer, holding a first-cluas stationary certificate, deposed that he considered thitthe engiuo if in Auckland could he repaired for £45. Thought it would be cheaper to take it to Auckland than repair it at Matamata, Thought it would cost £4O to tnko it there and back. The engine in a disgraoeful state, looKed aa if it had been through a fire. All the work ho had specified in a written statement he considered required to be done to put the engine in fair working order.

By Mr Swaibrick : Was not prepared to say that all the damages were caused by fire. Valued it now at from £BO to £IOO. It in good order it would be worth £l4O to £l5O

By tho Bench : Thought £lO would be a fair allowance for depreciation in three years. John Kenny, farrier, deposed to having worked with plaintiff about seven years ago chaff cutting, etc. Lost no time because of defects in engine. So far as he knew the engine worked all right.

Isaac Coates deposed to having hired the engine in 1890. The engine was rusty and the smoke stack had a hole in it. The lagging was in bad condition, '.riie taps wore all rusty, and one or two broke while attempting to turn them, ypent £2B or £29, after which the engine worked well and is iu good order now. When he gave it back it was better than when he got it. Valued it at from £BO to £BS ; now it would bo worth £l4O.

To Mr Dyer : Took the engine in th l : bad state it was because he wanted it badly.

J. P. Hill, who deposed to being a certificated engineer, substantiated defendant's statement as to the condition of the engine when ho brought it to Slade's from Crosby's by Coates' direction. Thomas Slade, blacksmith, also confirmed the defendant's statement.

The Magistrate here intervened, on the grounds that with the evidence before him io would he impossible to give a decision, and recommended the plaintiff to accept a uon-au.it. To this Mr Dyer consented. On the application of Mr Swarbrick coats were awarded. BENTON V. BAYNES. ' Mr Cotter (introduced by Mr MaoEiarmid) appeared for plaintiff, and Mr Swaibrick for defendant. Tins was an action for the recovery of i/200 d.-. mages ior breach of agreement, under which plaintiff agreed on specified terms to milk sixty cows. Mr Colter opened the case at considerable length. He stated that he relied upon thu written agreement to substantiate the shim ot his client. Defendant undertook to supply sufficient and suitable pasture, to provide a cow-shed, and set aside 17b acres for the depasturing of the herd the plaintiff was to have charge of. Defendant turned 200 sheep and other cattle and horses into the allotted paddocks, and refused to remove them upon being remonstrated with. His client then threw up the contract, as under the conditions .existing it would not have paid him to continue. Harrison Benton, plaintiff, deposed that he had been connected with milking for sevorul years. In consequence of a reply to advertisement he oalled upon defendant. The agreement put in was the result. Under that certain paddocks were allotted to him for the use of the coffs. On 29th June, while fencing a pig paddock allotted to him, he asked Mr Kaynes whether he should have the use of a certain 10-acre paddock for a whole year, or until ploughed up for turnips, if required. He said, ' Until ploughed up you will have the use of paddocks,' marked blue on plan produced. He told me the same when in negotiation. Defendant employed him between June and August in fencing paddocks and other work. Did nothing to any other paddocks than those he was to get. Io these paddocks there were from 300 to 400 sheep, a number of horses, and 40 steers. This was in addition to the cows he was to milk. Asked defendant when he intended removing the Bheep, because it was not giving the grass a fair chance. Defendant replied in two or three days. On Ist August tne cowshed was uot finished. Complained because he wanted the shed, at latest, in middle of August, for the reason that heifers were much sasier handled after they had calved if taken into the shed and bailed previous to calving, especially as the last time they were handled was in the dehorning race. On 24th August the shell of the cowshed whb up. On Ist August the pasture was very poor on the 170 acres allotted. The cows were then feeding on turnips, with a run over the paddocks. There was not enough suitable pasture in the paddocks even if the other animals hid been taken out. On the Ist of August there were about 300 sheep and horses in the paddocks. After August Ist Benton constantly asked that the horses and sheep be taken off. The gate on the road was frequently 'oft open, defendant being spuken to about this. On the morning of August 21st witness went down with the intention of putting all the cows into one paddock, in order to keep one paddock for them to calve iu. Mr Kaynes said it was useless putting them in one paddock as there was insufficient pasture and that they would have to run in the paddooks and roads and get their living as best they could. Mr Raynes admitted opening the gates leading on to trie road. It was decidedly not a usual plan to allow dairy cows to goon to the roads. Later on in the same day witness asked defendant whether it was not possible to get feed for the sheep on Mr Milne's farm at Tamahere. He replied he hiid no intontion of moving the sheep, at anyrate for a fortnight, and then only temporarily. Witness then replied that he did not think Raynes was carrying out his part ot the contract, the latter roplyim.', 'I do, and if you ara not satisfied I will look alter the cows as best I am able, myself.' To this witness explained that he wished no one to fulfil his part of the contract. That evening he collected the cows about 3 30 p.m., a few being on the road, and the remainder in an old turnip paddock, and put them in a well-fenced pad dock, closing tho two gates. Next morning he found the gates open and the cows again scattered. Mr Raynes was asked whether he opened the gates, to which he replied ' yes.' Wituess told tho latter that ho had not fulfilled any part of his contract, naming the bleaches to him, and that any practical man knew that dairy cows could not uo with sheep, an'l that he would bring Mr C. Day and Mr Mulcahey to see the paddocks. Raynes said if plaintiff cnuld not trust him to look after the cows it waß a bad job, and he cnuld ' chuck the job,' adding that as the cows were his property he could do what ho liked, put them where he liked, aud treat them how ho liked. Witness told him ho should not like to have the income iu his hands, being utterly inexperienced. Witness said it would be better for defendant to take the sheep out and save

attained relations. The latter, however would not, and when he did it would only be temporarily. Witness explained that under those conditions it would be utterly imposiibla to catty out the contract. Wh*n the first interview took place, Raynes admitted knowing cotliina about, cows and pigs. Witness then consulted his solicitor, who sent a notice to Raynes, requesting the removal of th'; sheep. On the following Tuesday, going to fulfil hia contract, the 6h<;ep still being there, witness took part of his belongings away. Witness had to place the cows, within three weeks of calving, on the turnips. He hud no choice, although it was not the right thing. There was not a suitable pasture for the cows on the piddocks referred to. Even so, hid the sheep and horses been removed, witness would have gone on with the ooutruct. He hud never known of sheep except perhaps a few pedigree, being allowed to graze in the same paddock as milch cows. Speaking as a practical man, he considered sheep took the heart out of the grass, and otherwise made it unsuitable. Milking on shares had been for years pist a common practice, both in Taranaki and in the Waikato. When paddocks were allotted it was the practice, of the owner not to put another hoof on to them, The agreement was the usual one in Taranaki, bur could not be carried out by a dual control over the paddocks. Witness had not the slightest desire to get out of the contraot. Basides buying pigs he had bought a waggon aud two horses. The outfit had been sold at, a loss of £l6, in consequence of the termination of the contract. Had the contract beui carried out, plaintiff estimated the gross profit on the herd at £4BO, equal to £8 per cow, the proceeds of butter-fat, calves, and pigs fattsned on the skim milk. Of this his share would be £l4O, he aud his wife required assistance probably to the extent of £IOO to £l2O. By the agreement he was to be provided with a free house, the rental of which was from 6-) to 8s per week ; also the grazing of four horses free. He would have been able to make something out of the horses, beyond the milk contract. This he estimated at about £2B. There was a very little prospect of his getting another contract this season, everybody having made all arrangements. Cross-examined by Mr Swirbrick : Witness went ovor the paddooks supposed to be his before signing the contract. This was 2-50 acres. The sheep were all over the farm, with the exception of the turnip piddock. Bought the horse ond waggon about the first week in August. The cows were due to calve about the first of September. It was understood on both sides that milking would not start on the Ist of August, Witness had told Haynea it was inadvisable to feed the spriugers on young grass, because of tiie danger of milk fever. That it was best not to put them on too much pasture. On August Ist the herd was in good condition, us they were on the 24th also. In their bodies the cows had not suffered from improper feeding. Witness had never milked any of the cowr, as they had no milk. None of the cows had calved wh«n he left. Except for breaking in heifers, he had therefore no use for the milking shed. lu regard to breaking-iu, ho had no conversation with Riynes, so far as ho recollected. He, however, proposed to feed them in Lho bails, to which defendant agreed. Witness had continually made complaints up till the 21st August. He had never asked defendant to allot him any particular paddocks, becmse it was considered they had already been so allotted. Witness then detailed the conversation held with Riynes on the Saturday morning, iu which the former said that with the sheep out it would take four mouths to obtain suitable feed. At this time the cows were getting oaten straw. Mr Day, on inspecting the cows, said they looked alright, but witness explained they had only beeu a few days on the turnips. Ho had told Mr Day that the straw was musty in places, but denied saying it was all musty. His experience in Waikato dated from last December. He had fulfilled a two months' contract on Mr Allwill's farm, but hid never been iu this district during August. Grass grew more freely in Taranaki in spring, and a few turnips were grown there. Any practical man could tell from the stool of the grass in winter what kind of a crop there would be. Had not worked for Raynes since the 25th ult. Had left the contract before Mr Swarbriek had replied to the letter of witnesa' counsel. Defendant received the letter on Sunday, and weot away with horses on Monday, while witness did Dot see him on the Tuesday. Prior to the 2lst defendant had always given the impression that the paddocks had been allotted. The arrangement was that if the sheep were taken out tho cows should remain on the older grass, and be fed on oaten straw until they calved.

By Mr Cotter: Defendant did not at any time promise to provide sufficient pasturage. Had ho offered to provide pasture in any other part of the farm, plaintiff would have had no cause to complain. Defendant had never attempted to meet witness in this respect. Every leading gate was closed, other than those mentioned as on the road line. Since receipt of the letttr defendant had made no offer of any kind that he would comply with the request to take the cheep out. Straw was not pasture, simply winter feed.

Leslie Fortescue, farm cadet, residing at Tamahere, said he witnessed the agreement between the two parties, of which he knew tho contents. At the executive of the agreement he was present at several conversations in reference to the contract. On Juno 29th he was present when plaintiff asked defendant whether he would have a certain paddock for the use of the cows. Raynes said he would, up to a certain dale, while the latter proposed ploughing it for turnips. Witness had no doubt whatever as to the paddock to be used by plaintiff. About 55 cows and heifere, 40 steers and bullocks, 14 horses and colts, aud from three to four hundred sheep were on the paddocks at that time. These continued thereon until August Ist. Witness corroborated the evidence of plaintiff as to his requests for removal of the sheep. On August Ist very little grass was on what he considered the allotted paddocks. The cows were then on turnips, with the run of other paddocks. Kept solely on the grass land they would have starved. There were very few turnips then. Defendant did not take off th>s sheep, though he frequently promised to do so, almost daily requests being preferred by plaintiff. Tho evidence given by this witness closely followed that of tbe plaintiff. At 9.30 pin. the Court adjourned till 9 this morning.

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