SURVEYOR’S CLAIM.

Gisborne Times, Volume XXVII, Issue 2489, 30 April 1909, Page 6

SURVEYOR’S CLAIM.

JUDGMENT FOR PLAINTIFF

His Worship, Mr. W. A. Barton, S.M., yesterday delivered the following judgment iin the case of George John Winter (Mr. E. H. Mann) v. William Boothman (Mr. Alston C'oleman): “The plaintiff claims to recover from the defendant the sum of £25 7® 3d, for surveying three bush sections, containing in all 405:1 acres, at Is 3d per acre. Counsel for the defendant has raised three nonsuit points which 1 shall deal with first. The first is that the plaintiff has certified to and adopted the act of his servant as to the accuracy of the plan and survey, not having Himself done the survey or prepared the plan, or had the same done under his immediate supervision. The plaiiitiff has certified to the 1 accuracy of the plan, for the reason that it was prepared by his authorised assistant, in plaintiff’s office, and under plaintiff’s authority, and that being so I must assume that he satisfied himself | to its correctness before allowing his name to be placed upon it. He lias by doing so adopted the plan as his own and has rendered himself liable for any inaccuracies should they appear therein. In reference to the second point, viz., that to entitle plaintiff to recover it must be proved that he was a licensed surveyor at the date the work was done, by the production of the gazette as is necesary in the case of a medical practitioner suing for fees under the Medical Act, 1908, Section 17 of the Act referred to provides that no person shall be entitled to recover any charge in any court of law in New Zealand, for any medical or surgical advice, etc., unless he proves on the trial that he is registered. I am unable to find any similar provision applying to surveyors, and that being so I think it is quite sufficient for a surveyor to state upon oath that he is a duly licensed surveyor, without the production of the gazette' leaving the defendant, if he can do so, to prove the contrary. “As a third point counsel submits' that section 65 of the Magistrate’s Court Act, 1908, has not been complied with. Subsection 4 of the section referred to provides that the statement of claim shall give such particulars of time, place, names of person, dates of instrument, expressed in figures or in words., and other circumstances as may suffice to fully and fairly inform the Court and the opposite party of the course of action. The only omission from the statement is the date of the service, but as there was only one transaction between the' parties, I am satisfied thati the section referred to has in the circumstances been reasonably complied with. For the reasons given I decline to nonsuit the plaintiff. “The facts of the case are shortly as follows: luat the plaintiff, through Mr. Honan, his authorised assistant, entered into a contract with defendant to survey three sections of bush at Bua'kitnri, and the pince agreed upon was Is 3d per acre. Mr. Honan says that he told defendant that he had no official information with him as to the boundaries between his) land and that of Barker Brothers, whereupon the defendant said he thought he could find the pegs, and if he could he would flag them,- but that he was not sure of finding all the pegs and that he w'ould be satisfied by Honan taking a line by the flags he put lip. Honan says that he tolcl defendant that he would, be surveying for Barker Brothers the following year, and if the line defendant pointed cut was not the true boundary he would then cut out the true boundary and supply him with an amended plan, and that if in the meantime he had cut any of Barker’s bush that they could then adjust the cost between them. Mr. Honan further says that he told defendant that he would speak to Mr. Brown, manager for Barker Brothers. about the matter, and that he did so. Mr. Brown was called and corroborated the evidence of Honan and stated that he agreed with Honan to pay defendant for any bush felled by him cm Barker Brothers’ land. Honan says distinctly that he surveyed the land in accordance with the boundaries pointed out to him bv the defendant, and that he furnished him with a £>lan. Mr. Honan returned to Ruakaturi in 1907 for the purpose of surveying Barker Brothers' ,:-land, and then completed the survey j)i defendant’s land and supplied him with an amended plan, caused by the 'discovery of another peg, which he was unable to find on the .first survey, owing to him not having official information as to the boundaries of the land. The defendant, between the date of the first survey and Honan’s return to Ruakaturi in 1907, to survey Barker Brothers’ bush, for some reason obtained another surveyor to go over the ground and he made the area considerably greater than Honan’s first survey, but practically the same as the second. The parties are in direct conflict as to what took place at tlieir first interview, and I should have considerable difficult in arriving at a judgment in this case were it not for the evidence of the witness Brown, who most materially supports Honan’s evidence. Defendant says that the first survey was to be complete and that nothing was said by Honan in reference to" supplying him with an amended plan. lam satisfied from the evidence of the witness Brown that .Honan did not intend the first to be a complete survey and that he intended to finish it on his return to the locality the following year. If' the first survey was to be complete what was the necessity for Honan to arrange with Barker Brothers’ manager to pay for- any bush which defendant might fell over his boundary line ? I am of

opinion that defendant’s-memory is defective, and that he may have forgotten what did actually .take place between himself and Mr. Honan. For the

reasons • given, I am of opinion that plaintiff is entitled to succeed in this action.. Judgment accordingly with costs £5 7s of Court.