S.M. COURT.

Bush Advocate, Volume XXII, Issue 11, 14 January 1910, Page 7

S.M. COURT.

YESTERDAY

(Before Mr S. McCarthy, S.M.)

CULLINANE v. NEWETT AND HARVEY.

Jeremiah Cullinane v. Geo. Newett and Geo. Harvey, claim £32 18s. Continuation of yesterday's evidence :

His Worship decided it would help in arriving at a settlement if the court looked over the road in dispute, and accordingly this Mas done. On resuming John Jiargh, civil engineer, deposed lie knew the road Cullinane had formed past Mr Hartgill's. Measured up the land for Cullinane. He made the formation on Guv-street 9 chains and 20A chains on the cross road. When he visited the section he did not see any pegs on the road as the formation was finished. Cross-examined: All the longitudinal plan showed was 18 chains. If pegs were misplaced witness would not proceed further until the person in charge of the job had replaced them. • Witness thought the estimate of Mr Rose in regard to the damage done was excessive.

George Harris, county road overseer, deposed he was employed by Cullinane when Cullinane was metalling Adelaide-road extension. The spreader had widened the metal out at the junction of Smith-street and consequently they had to put on more metal for which Cullinane was entitled to be paid. Cross-examined: Sometimes contractors did a little more formation when work was of an easy nature. David Johnson, farmer, of Tiratu, deposed lie was employed by Newett spreading metal on Smith's road. At the junction of the road he widened the metal out to make a finished road. This was an extra for which the contractor was entitled to payment. Cullinane had to help witness to spread. T. J.. Cullinane, son of plaintiff, remembered his father and witness going to Newett and asking him what about finishing the work. Newett told his father to go on and never mind any penalties. This closed the cfise for the plaintiff, and Mr Fitzherbert submitted that plaintiff should be non-suited, as the work had never been passed. Mr Robertson had never issued a certificate that he was satisfied with the work. His Worship stated they had already had it in evidence that Mr Robertson was satisfied with the work. Mr Fitzherbert stated they would reduce the claim for trespass and damage to £lO, and abandon the claim of £3O for penalties. George Newett, commission agent, deposed that he went over the land with Cullinane before a contract was mentioned. Witness represented the syndicate. Guy-street had to be extended about nine chains and then eighteen chains on the cross road laid out Gave, Cullinane a copy of the plan produced, which Cullinane denied* having received. The whole contract was worth £l4B lis 6d, and Cullinane had received £l2O out of that. Cross-examined : Had never told Cullinane to continue the road to a barb wire fence. John A. Robertson, surveyor, deposed he was part owner of the land in question. Witness supervised the work of cutting up the land. He (witness) put the road pegs in. They did not want the road made to where Cullinane put it as it destroyed a good building site. If the plan produced was not sufficient for plaintiff to- work on he should have seen witness. Two- culverts were authorised. These were extras. Knew a mowing machine had pulled several pegs out. There were a number of pegs left in. Cross-examined: Never noticed Cullinane had exceeded his limit. Mr Fitzherbert, in addressing the court, said the contract was a written one, which could not be overridden. The fact that the contract was not finished until eighteen months afterwards was corroboration of negligence on the part of plaintiff. Mr Lloyd briefly addressed the court. His Worship, in giving judgment, said if one of the parties to the case shows a certain spot as the point where a road was to g'o the contractor was entitled to make the road to that spot and recover for any extra work. The question was whether Newett had indicated the bottom of this el iff and he was of t-h* oi:?i'ion from the evidence submitted that such a spot had been indicated to Culliiviue as tlie po ; nt to whcivlie should form the road. The contract must be construed subject to that arrangement. Plaintiff was entitled to recover for such extra chainage. Judgment would be for plaintiff for £2B lis 6d, and for defendant on the cross action. Only one set of costs would be allowed—court costs £2 os, solicitor's fee £2 12s 6d and witnesses' expenses £2 7s 6d.