AN IMPORTANT DECISION.

Wairarapa Daily Times, Volume XVI, Issue 6114, 16 December 1898, Page 3

AN IMPORTANT DECISION.

CHRISTENSEN AND MOORE V. CAMERON. Tlio following is Afr \V, 1!. llwiden 1 ? full jnilgmi'iit in the ense Christonscn mid Moore v. Cameron recently heard by him in theMaslrrton S.M. Court : This neliou is brought under "The I Contractors and Workmen's Lien Act, 1802," and the plaintiffs allege (hat Ilicy were labourers, employed by one James Bcntley, who (hey nllego was a contractor, employed by tho defendant Cameron, in a contract for clearing scrub on tho defendant's run. The plaintiff Cbrislcnsrn claims to recover

a balance of £32 Ms for wanes due lo him by llentley, and tho plaintiff Moore claims £3O Ms, also a balance for such wages, both plaintiffs claim a lien upon tho land of the defendant, but admit they are only entitled to a lien for thirty days' wages, though they claim« charge upon any money due from Cameron to Bcntley under the contract, up to the full amount of their respective claims. The plaintiffs have given the notices mentioned in section 8 of the Contractors and Workmen's Liens Act. Section 19 of tho Act provides that summons shall be directed to the person from whom payment is claimed, mid also to " every person who, if the claim were not made, would be entitled to receive tho money claimed by the plaintiff." The summons in this case is only directed to Cameron, and is not directed, as it should hayo been, to Bcntley also, who is tlio person, who, if the claim were not made, would bo entitled lo receive the money claimed by the plaintiffs. This omission was not noticed at the hearing, and no amend-

ment was asked for. I am, however, unwilling to dceido the case upon a point which might, with delay and expense,

be remedied. The evidence for the plaintiffs was that by nn agreement in writing dated erroneously 2nd February, 189/-(lie true dale being ISM-Bcntlcy, on his own account, agreed with Cameron to fell two hundred acres of scrub, moro or

less, at 12s lid per acre, with a condition that if the contractor failed to finish the contract the contractor was to forfeit fifty per cent, of the work done. The work was to be completed by the 30th November, 1808. The block of land, which bad been estimated to contain two hundred acres, more of less, turned out lo

contain one hundred and forty-three acres, and on the 2nd September, one hundred and twenty acres had been cut. These quantities were furnished by liio defendant, the plaintiffs not disputing them, although I notice the plan is dated llltli August and the plaintifFs say they worked to September oth. The plaintiffs say that on the oth September they were discharged by Benlley and received from him orders on Cameron for the amounts due to them respectively being the amounts now sued for. Benlley, who was called by the plaintiffs, says he took the job from Cameron on his own account, and offered Moore and C'hristeusen a share in the job, or wages, and they chose wages. The rate of wages was not agreed upon or mentioned. He says he kept the men's time, but does not produce any account of it. The three men worked together at the job until about September sth, when, as Bentley says, Cameron stopped his credit at Johnston's, and ho could not go on. Moore says 25s a week was agreed upon as the rate of wages. Christenscn says no rate was agreed upon. The real question at issue between the parlies is whether Cameron can deduct tho money he paid and guaranteed to Johnson for stores supplied to Bentley and his party.

It seems that these three men earned 'rom Bth February to oth September, a jeriod of seven months, the sum of £75,

being about IBs per week per man, and received from Johnson stores to the vnlue of £lO Os lid guaranteed by Cameron, stores from Cameron to the value of £ls 15s 7d, and cash £lllos a total of £7112s 7d leaving a balanco of £3 7s od provided Cameron is not entitled to retain it under the terms of the contract. The plaintiffs, however, say that Cameron was bound to retain one fourth part of the contract moneys payable under the contract, until the expiration of thirty-one days aftor the completion of tho work, and that he cannot set off as against their claim for wages, moneys paid to

the contractor, or his order, iu excess of 75 per cent, of the moneys so duo. The three men, Bentley nud tho two plaintiffs, all lived together, and consumed the stores obtained from Johnson and Cameron, and apparently earned little more than enough in tho time to pay for their food, which averaged about 13s per man per week. It is said, and not disputed, that the price paid for the clearing was a fair one—l2s (id per acre -and the prices charged for stores are not disputed, The main ground of defence whs that

10 three men, Bentley and tho two

plaintiffs, were really partners or cocontractors in the job, and that although Bcntley's name alone appeared in the agreement, it was intended that the others' names should be inserted; the agreement beingdrawn partlyin the plum number, and a blank left forunmes; tbat Cameron was informed of this arrangement, and that he paid small sums on account to all three men, and that it is in fact a fraud on the plaintiffs part to say uow that they were wages men and endeavour to mako Cameron pay twice over.

The defendant also sets up a number of technical objections which I do not think it necessary to decide; some of themareintcrpref alionsof the Truck Act,

the Workmen's Wages Act, and the Contractors and Woritmens Lieu Act; they can. be referred to hereafter if occasion should arise.

On tho evidence of (he plaintiffs and Bentley, and the evidence of Hibble, I

believe tho three men were cocoiit/ncloH, It is lome inconceivable that men would act as they did if the relationship of master and servant subsisted betweenthcni. I believe thatwhen

the work done by them was measured, and they knew how little they had earned, they decided totake advantage of the omission of the plaintiff's names from the agreement and to claim as workmen.

I think also that no sum of money is due to Bentley under the contract, he abandoned the contract because ho says Cameron stopped his credit at Johnston's, yet nt the same time he says he did not ask for Cameron to guarantee his account at Johnston's. Johnston says he would not supply Bentley unless guaranteed by Camoron. It is possible that Bentley might have claimed payment for cacb acre done, as each acre was completed, but he did not do so, and on his failiuglocoinplete, the penalty set out in the agreement became enforceable. This is a defence which would be available against an action by Bentley and is, I think, available against an action by (ho plaintiffs. Section 18, Workmen's Wages Act, 1893, Hughes». Jones, VI. N.Z.L.K., p. tiOO. Much more is this dofence available on the finding, that the plaintilt's were co-contractors with Bentley. I am bound to hold under the authority of Kellich e. Adams, XII. JM.L.B., p, 718, that the case is not within the Truck Act, 1891.

Judgment for defendant, with costs. Mr C. A. Pownall appeared for plainill's, and Mr \\. G. Beard for (he lefence,

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