SUPREME COURT.

Wanganui Chronicle, Volume L, Issue 12709, 21 March 1911, Page 3

SUPREME COURT.

I ♦ (Before Mr Justice Edwards). BIUSCOE AND OTHERS v. BARTRUM. This was an action by a party of I busbieikrs against Gi N. Bartrum, claiming under the Wages' Protection 1 and Contractors' Liens Act, 1909. a I iien on defendants' land at Matahiwi, Wanganui River, being the land included in a contract for bushfelling. The amount claimed was £300. The case was heard on Friday afternoon and Saturday, but the report was unavoidably held over. Mr C. E. Mackay appeared for plaintiffs and Mr Cohen for defendant. Thomas Briscoa, bushfeller, at present residing in Wanganui, said that he had arranged with the defendant to fell certain bush in September last. They started work on the 28th of September. They first felled 95 acres on defendant's own land, and 'defendant inspected the 1 work at least three times a fortnight. 'Any minor complaints pointed out wero rectified. Witness then came to Wanganui, leaving his mates behind. On return, he met Mr ■ Bartrum at the river. He said, "I had a few words with those chaps this morning." Witness asked what about. "The job was a, little bit rough,'' Bartrum replied. Witness told him he was not aware of, it, and 'thought the work was done in a satisfactory manner. Defendant said, , " I was very near not going to pass it." That was all that was said. While in , Wanganui, witness' mates had shifted camp to defendant's deceased brother's placo, and went on felling the bush. Defendant inspected the work and said it was "real good: it seems to be all dry- '"_ in»* well." About three weeks after i they commenced fe/lling tlie bush, defendant carrie up and said "I think you j chaps had better give me two days and -siio, .over tlift. first piepe of bush felled." They refused, because ho had passed it. Ho went away seemingly satisfied. That was about a fortnight before they finished felling the bush. Three or four ( days before they finished, the camp ran out of stores,"so witness wont down and : saw Mr Bartrum, and asked him if he I would let them leave six acres as they I had no provisions and they would have to wait a week for stores. He said they had better finish and he would let them have a 50 of flour, & sheep and a few sundries'fto F&o, on i,rith. .j?i- Theiy*there^ I fora decided to complete the contract. He sent the stores up. They had about

i three-quarters of an acre uncut when (they received a note from liixn saying "You had better terminate your contract. I will go down by to-morrow's boat.—G. W. Bartrum." They knocked off work straight away, packed up their things, and mot defendant at the river next morning. They traveled dowa to Wanganui together. They conversed, and arranged to meet at Dalgety's at 1 3 o'clock to settle up. They all mot i him, but Bartrum then declined to pay ' out. "Witness said, " You passed tha (job, so why not pay?" He then wanted to appoint arbitrators,, but witness refused as the bush had baen passed. Then ho said he would pay out oil! a burn. "Witness them took proceedings. Witness had been reared in the bush, and he thought the work was done in a satisfactory way and in accordance with the specifications. Bartrum had expressed his satisfaction. Thci amount of the stores they had was about £49 and the meat about £10. To Mr Cohen.—The bush was medium. He could not say what .amount a man "could fall a week, but 3 acres would be good work. It was important that underscrub should ba cut clear. They did this throughout the whole work. |He could not say how long it would take to dry. It was raining nearly all the time they were at the first bush. "When he left there was a. little bit of green in the first bush. That was six ! weeks after being cut. Bartrum said one place Avas a little bit rough, but witness found it was all right, and told Bartrum so. He said ho was pleased ,to hear it. He never pointed out to 'witness any trees that had not been ' properly severed. They cut the underscrub as near 6 inches from the ground 'as possible. "Smashing" was done by felling one tree into another and breakiing th© other down. He did not adopt ; this method at all. He could not say j what his mates did. A good burn depended on many things. Bartrum was always satisfied with the work. If Baftruni said that he told witness that it 'was disgraceful work, and that he would not pass it unless the party went over it again, the statement was not correct. Bartrum never poined out any work badly done. At the meeting in Dalgety's office, witness did not say that he was willing to go over the work, but that his mates were unwilling. Witness did not remember B'artrum saying that he would not pass the work or pay the men unless they wsnt over the bush again. He did not remind witness of his having promised, when on the grcund, torg6 .#£r v'the work. When Bartrum asked them to give him two days on the 95 acres, it was to cut a j bit of green 'stuff—vines. .He could I not say the exact date /when Bartrum j passed the bush, or when witness met him at the river, but it was about the sth of November. The felling of the 105 acres was done equally well. Bartrum said it was a good job, and that it suited him well., Bartrum guaranteed the party's stores occounit at Dalgety's, and packed themV up. To Mr Mackay.—They worked 12 or 13 hours a day as well As on Sundays. Michael Keating gav§ evidence, corroborating the above.': . To Mr Cohen—-Bai-trtiin did! not sny that unless plaintiffsiprbmised to make J a better job of the 105 acres he woiild not allow them to go on. At the iai-te-rview in the bush, Bartrum did not say that unless they went back and did I the 95 acres properly, he would not pay out. There was nothing to be done, in order to comply with £he contract. Frank Briscco also gave evidence* in coiroboration. He visited the land on the 14th, and Bartrum had' got a very j fair burn —block all over. The <grasa jse-ed and turnips were beginning to grow. To Mr Cohen —Patches of konini and mahoe were not burnt as these were bad burning woods, and therer was nothing near them to burn. He did not expect a better burn from the work that was, done. The fire was through the whole of it. He did not se-a any green stuff. There may have been a | tree here and thre with leaves only burnt. The 105 acres was as well burnt as the 95—.such a burn as might be exI p?cted from good work and a dry season. There was an odd patch or so which had not burned too well. He culd not account for the green stuff lK>in.cr there. Witness denied that Bartrum had mentioned to him about bad work and that witness had told him to sre the others. Bartrum had asked them to promise to cut the 105 acres [better, witness replied that theiy couldn't. The land was good rolling country. Clarenco Keating, under cress-exami-nation, would not believe that two men working for thr-co weeks had made but a small impression on green stuff J" th? 95 acre'- All the trees up to Jit Gin were cut clear. He was surj nnsnd to learn that there was an abundance of green stuff, and acres which

i tlio fire had never touched. ; j William Phillips also denied that Bar ■ j trum complained to witness personally ) about the work ho was doing. I| • William Briscoe gave, very similar cvi ■ dence, after which the Court adjournec ■ till 10.30 the following morning. > j When the Court resumed on Satur day morning, i J Barnard Phillips, bushfeller, Wanga ■ nui, said he-was no relation to th< plaintiff Phillips. He had! four years experience in bushfelling. He had inspected the bush a-t' the request of th< plaintiffs. He inspected it thoroughly for four hours. Close on 200 awes iiac , been done, and done well, according tc I specifications as near as possible. Wit- , ness could not s€te any green stuff. Th< 'work should have been passed. Tlk i , burn had been a good one, and the grass seed and turnip seed had grown, j Crass-examined, witness'said that'the grass growing on the second piece oi j bush was in old buish. I John Tinnot and Alfred Gillison, bushfellers, Wanganui, gave similar evidence as to inspecting the bush. The latter had also inspected the burn and found it a good one. Tho grass and turnip Eeed was growing. I This concluded the case for the plain.tiffs. iMr Cohen said that plaintiffs would have to show they had completed tho j work—this was condition precedent. I His Honor—lf the work is nofc stopped by the employer. | Counsel said the case would be led to show that the plaintiffs had not carried 'out the work -according to specifications. On the point that Mr Bart rum had pass ed the work from time to time there I would be a considerable conflict of evidence. Competent witnesses would hi\ produced as to the value of the work I done by the plaintiffs, and as to- wheI ther it had been done according to specifications. George Nathaniel > Bartrum, defendant said that about a weak after the ; plaintiffs started, he caught Phillips leaving the trees on the stumps, and {complained about it: Hei said it was i too dirty with vines and supplejacks to ; do otherwise. Witness a^o told Briscoe, who sad he would see into it. Witi ness was there three times while the 95 acres was being cut. He complained ty-ery time. On the second and third |tim:s he complained to Briscoe on the same grounds as before. When the 95 'acres was finished, witness "met the men at the camp. Ho complained that the bush, had been disgracefully cut, and wanted:a guarantee that they would do tho next piece better. He said he had never seen bu?h cut worse. He had had bush foiled for him for five seasons. The' men said they hnd dons tho 95 acres as well as they could. Witness shifted camj) for them on those conditions. Tli9 work was bad in tliat they Jeft so much not St'.tvered. They had not front and back scarved the? trees, and l.bey did not fall clear. The felling was not according-to specifications. Ferns and half the supplejacks • wero left. The undersc rubbing was done to all heights, up to four feet. There Averse evidences of smashing, in one case particularly.' The trees uaiderneath tho ..smashing tree were green, and could not be treated. Everything must be cut to get a good burn. The work en tb-ei 105 acres was worse- than that on the 95 acres. Ho was on the job twics, not 12 or 13 times as the men said. Ho had an interview with all tho men when tho work was half done. Ho asked them to go back over the 95 acres to re-fell it. It Mas getting very green. No answer was made. Witnesssaid he would not pay out unless they did. Keating said h H would see whether he would or not. None of th-etm said they did not think it fair to go over th<? 95 acres again, because witness had passed it. He had. never parsed any of. tho work. The defects of the work on the 95 acres were exaggerated on the 105 acres. When witness wrote knot-king the men off theore was still about 30 acres to be done. Ho saw the bush from the ridge the day before, and it was so disgraceful that he thought he had better knock the men off. Witness had sesn the plaintiffs at Ins house a Aveek previously to his* sending the* not?. They wished to knock off. AVitness declined to let them go They said they had no food, there was only five acres to do, and as it was in a gully, it was not of much consequence Witness .said they could get food whenever they required it. After his note he met them on the boat and arranged to meet Briscco at Dalgety'.s. Witness did not say he would ssttle up there. He came down to se3 Mr Watt. Mr Watt, witness, and Briscoe met. at Dalgoty's, and witness told Briscoe he would not settle. Briscoe first denied and then admitted, that he had been asked to go back over tho 95 acras. Ho said a man could not be expected to go ove , r it again. Some high Avoids passed. Witness worked himself, and had other men working on the bush right up till the burn on the 18th of

January. The conditions were very fa- •- vourable to the burn. Tlie weather in y January was very good. There were burns all round, and they were all spleni- did. The fire was lighted properly, d Part of the burn was fair, about 40 acres, but tho ether 55 acres were very •_ dirty. There were green patches all through it, that a cat could not get L . through. Ten acrets could not be sown. c The burn was better than expected. ,' Of the 105 acres, none was well burnt. _ Jt was a black burn, leaving all the c bark off the trees. This pulled the . wool <'ff tli€i sheep. Twenty acres had jj practically not been touched, and did 0 not now appear to have been felled. Badly burnt land got better after four ~ years. The 105 acres had not been sown. Any grassl there was self gown. " Witness remembered the interview with Thomas Briscoe. on the latter's return • from Wanganui, about tho time of changing camps. Witness told him ho had had a row with his mates, that he was not satisfied with his work, and ■ that ho would have to be careful, or 9 there would be trouble. Briscoci said '" he was sorry, because he thought they 1 had made a good job of it. Witness > had never said the job was a real good one, and that he was satisfied with it. | - | Cross-examined, witness said th© men were to pay for store?. Witness had I given his order to Dalgety's, and was ) liable for the stores. Witneiss knew Dalgcty's had sued the men for the ' ; stores. Tin's was not by arrangement ' ( with witness. His work among his i isheep sometimes took him near the [ I bush. . I Corroborative evidence was given by jE. A. Campbell, D. Mason, and W. Oon- \ nor. About five o'clock the Court adiourni ed m order fo allow the parties to come to an agreement, but without result Counsel addressed the Court. >• Mr Cohen submitted his case for iud,<--me«t or a quantum mVruit, claiming'"a' deduction of the amount of damage* a.s ; , estimated by the defence. His client. | ; Jiad no desire to evade payment of what was properly due to the men, and to i quit© willing to pay the value of the , work they had done. I His Honor said lie would have nonsuited the plaintiff had Bartrum not written the letter "knocking off" the ' plaintiffs. Judgment was given for ' SoA ntiffs for £? 0 ' in addition to tho £30 already paid on account, nnl on 1 condition that Bart-rum paid the ini>n"s stores account of £51 10s. Costs were ' not allowed because the action had not ' been dealt with by the Court in the way ' m which it was brought. 'MONDAY, MARCH 20. MITCHELL v. BUCHANAN. This is an action by George Mitchell against his tenant, John Buchanan, to recover possession, and to recover damages for.breach of contract. Tho hind concerned is about 295 acres, at AVcstmere. ;..: ■.»■■■■ ■-•■.-; -■■• -': ;•■■ *> - Mr W. J. Treadwell appeared for the rJaantiff, and Mr C. P.--. Brown for the dereaidant. •■■ , r Tn: openiiio-, Mr Troadwell said that Mr Alilchell liad f.irmed tho land in .question for 10 years, and had left it pract'.eally free fi-om noxious weeds In 1901 Mr Mitchell subdivided Ins farm into four parts, and his Honor would be asked to compare the part now tenanted by Mr Buchanan" with the other -three parts. Tlie part held by Mr lioberts was in. the same condition as uhen lia took it. and it would be contended that Buchanan should have done . likewise. From 1901 to 1904, Downes liad the tenancy of the land which was tho subject of tlw action. He tlien assigned to Power, who transferred to Buchanan. The plaintiff contended that during the tenancies of Power and Burchmian, the property had been iKglectcd.v. Noxious weeds had increased considerably. In 1906 Mitchell complained about the noxious weeds to Buchanan and said that the latter mu*t be. attended to. Buchanan said Power was partly responsible, but added that the ' supposed that "the last man had to oenr the monkey," and agreed to" seeing ! to th<? removing of th* weeds. He had I'^n 1", 1!* l lis fler^nient. On Ist June, 3T/09, Buchanan apj)li«d for leave to *»«'<>t. Mitel jell said, he was dissatisned with the management, CBpeciallv as to the noxious weeds, and some paintmg, but on bcin fi promised that tlicse would be attended to oara }vs consent The promise was" broken again In June, 1909. Buchanan deter- " mined tne tenancy of his .sub-tenants and resumed possession. At this time the place was rapidly becoming cowre-r? with Avceds wasted, and impovenshe:!. In July, 1909 Mitchell consulted his solicitor, who notified Buchanan, reoturi\ig him to remedy certain braicW Mr Biifhanan did make an attempt to , remedy thcj state of affairs somewhat. J and asked Mr Mitchell to approve some weed tor sowing in ground that was broken m> which Mr Mitchell did. This sred had been sown in wet ground and

. had conseqv.|ontly been unproductive,. The gorse received some attention, but. , | the briar none. Plaintiff again liad a notice to repair, and remedy breaches of the covenants in the lease sent toBuchanan by Mr Gordon. This wets im October. Very little was done, and t?ia - writ was issued four months later. TJie plaintiff complained because he was--1 }>eing trifled Avith. He had askctl ob. , four ocasionis that matters be remedie<I r ., and practically nothing hadi been done.— | On the 25th February no briars were- , cut. Since that date, after the lease • had been determined by the issue c£'" the writ, the heads of the briars hit<3 been cut, and this had the! effect «&" making matters very much worse. Ko>> •attempt had been made to perform thercovenant, and this was an illustrationof the manittir in which plaintiff \raa^ being trifled wth. Tli© Court then adjourned till 10.30? , a.m. to-day to enable' his Honor "i»>.view the property. I ;" l—" —-^^——^^—^—