CLAIM AGAINST MILKMAN.

Gisborne Times, Volume XXVI, Issue 2204, 30 May 1908, Page 3

CLAIM AGAINST MILKMAN.

A QUESTION OF'AGREEMENT....

JUDGMENT FOR PLAINTIFF.

At the Magistrate’s Court yesterday, before Mr. W. A. Barton ,b.M., Charles Livingstone Ferguson proceeded against Charles Smith lor alleged broach of .agreement. The statement of claim sot out that defendant agreed to supply plaintiff with milk for 12 months, on tlio following terms: SJd per gallon frein December l v 1007, to Juno 1, 1J08: 10d from Juno 1 to September 1; ami 81d from September to December. The defendant supplied milk accordingly for the first month, and thereafter discontinued,'.and since tho discontinuance plaintiff had been paying Is 2d a gallon. The plaintiff claimed to recover tlio sum or £Jo 10s, being £3O 10s the difference between the price of milk as agreed and £5 damages for breach of tho agreement. , „ , Air R. U. Burke appoared for tho plaintiff and defendant was represented by Mr T. Alston Coleman. Charles Livingstone Ferguson stated that the agreement had been made on November 20, 1907. Ho was supplied with milk in tor ms of tho agreement for about a month. He had then received an account, claiming at the rate of lOd per gallon. Ho disputed the account, saying that ho had agreed to tho price of B}d. Witness refused to pay, and on 27th January Gillan, the defendant’s agent, deducted tho. overcharge and tho balance was then paid by witness. Milk was supplied to witness by defendant until January,, loth, when ho -(witness) complained to tho delivery man that he was not coming early enough. Witness said that defendant had promised to come at 0.30 n.m. The man delivering tho milk said that defendant had nothing to do with it, as lie had taken over the business. On being asked what he was charging for milk the man said 9Jd. Witness saw. defendant the same day,, and asked him what lio was doing about ■lis (witness’) milk supply. Defendant replied that he would see that .witness would got tho milk at 8)d. Mills was supplied up till about tho 27th of January, when witness ask'd Hall, tho driver, if defendant had arranged about tho price. Hall replied that defendant had not. Watuess then, telephoned defendant and asked him again what ho was going to do in tlio matter. Defendant then admitted that lie had sold out, uni thought that under the circumstances it was not fair that witness lion Id hold him to the agreement. Witness then tolil Hall that ho need not call after February Ist on account of tho increased pries. Defendant came to witness’ shop about tlio mil of January and asked witness to go with him to Hall and try and get the milk as cheap cas possible. Witness declined to go, saying that it was defendant’s place to keep the agreement. About tlio beginning of February Hall camo to collect his ac:ount, charging 9£d for the _ milk which had been supplied. Witness ;aid he would not pay it. Hall came back on March 4th and said that he was going away and that it would have to be paid. Witness paid Hall at the rate of 9Jd and said that he would look to defendant for the difference. The average monthly consumption of milk in witness’s establishment was 132 gallons. To Mr Coleman: He did not tear up an account for milk at SJd and was now getting milk from Mr Golclio mid paying Is 2d per gallon for it. Ho had been allowed 3s 6d discount on the one and only account. Witness also got milk from Lumsden during the month of April and Lumsden also charged Is 2d per gallon. Defendant did not, at any time, say that he would not carry out his agreement with witness.

Mr Coleman, for the defence, stated that the defendant had sold outbut was willing to supply milk until tho end of the year. Defendant at uo time refused to complete his contract, but was not given ail opportunity to do so. He would call the defendant. Charles Smith said that after the agreement was made he supplied milk to the plaintiff. He ceased having mills: delivered to plaintiff, because plaintiff had said that the milk was not being delivered early enough. Hall tools over the business from witness for 12 months and also the round of customers including the plaintiff. Witness told .Hall and Fitzell that plaintiff’s contract was for milk at ?Jd. They said that they were agreeable to supply the milk at that price. Witness was aware of the dispute between Hall and plaintiff, and is a consequence be saw Hall and Fitzell who said that they wanted 9Jd. Witness told Hall to go on supp'ying the - milk and he (witness) would make up tho difference. Witness paid tho difference 11s'9d to Fitzell and Hall, which was the amount charged by them over tho contract price. He did not at any time refuse to carry out the contract, hut since plaintiff put the cart off, he had not supplied milk. Witness saw plaintiff after the cart was put off and told him that he should have como to seo him (witness) about it. Plaintiff replied that the milk was late and that it was being charged at 9pi. He told plaintiff that he (witness) would pay the difference, but plaintiff refused to take tho milk as he had another supplier.

To Mr Burke: "When the business was sold to Hall he. (witness) informed him as to tho agreement with plaintiff. Plaintiff came to witness and said that he was being charged 9.1 d, hut witness did not tell him at that time that he would make up the difference. He did not remember saying to plaintiff that it was unfair to hold him (witness) to the agreement. After receiving a letter from plaintiff’s solicitor witne'ss saw plaintiff and told him that he (witness) would see that tho matter was put right. He never told plaintiff that he had paid tho difference. His Worship said that ho had not tho slightest doubt that defendant had committed a breach of the agreement. Judgment would he for plaintiff for .£ls with costs £2 6s.