SUPREME COURT.

Press, Volume XXXI, Issue 4177, 17 January 1879, Page 3

SUPREME COURT.

SITTINGS AT NISI PRIUS.

THUBSDAY, JANUABT 16.

Before His Honor Mr Justice Johnston, and a

Special Jury.J The civil sittings of the Court were resumed at 10 a.m.

HENDERSON V THE NAPIER HABBOB BOABD.

This was an action ia which John Henderson, civil engineer and contractor, of Wellington, was plaintiff, and the Napier Harbor Board, incorporated under Act of the General Assembly, defendants. The plaintiff sought to recover from tbe defendants a certain sum of money, being the amount of a contract entered into between the plaintiff and defendants to do certain works connected with the improvement of the harbor of Napier, under the control of the said defendants. The plaintiff further charged the defendants that by collusion between them and their they had prevented the obtaining of the final certificate by the plaintiff from the sail engineer, and had also, hy alterations in the plans from tho=e upon which the contra :t was taken by the plaintiff, caused him to do a large amount of extra work, for which he sought to recover payment to the amount of £ 18.206 5s lid, forming part of the whole sum of the money alleged to be due under the contract from defendants to plaintiff. The plaintiff further sought to recover the sum of -5305, being tbe amount of their d°posit on the contract at the rite of 10 per cent. The defendants alleged that the plaintiff was indebted to them in the sum of .£9500 as penalties incurred by reason of delays in carrying on the work by the plaintiff, t nch penalties being fixed by the ltith clause of the contract entered into between the parties. They also denied the charge of collusion and fraud, and alleged that it being provided m the contract that all works extra over aud beyond those specified in the contract were 11 be orde ed in writing by the engineer of the Bjard. no claim could lie for any else. As to the other portions of the plaintiff's declaration, the defendants denied all the material - legations. The case for the plaintiff, as stated by Mr Bees, was as follvws :—The Board on May 31st, 187 d, issned an advertisement calling for tenders for certain works in connection with the Napier Harbor, and on June 12th of the same year the tender of the plaintiff was accepted, and on 11th July, 1876. the plaintiff signed the contract. The contract, amongst other things, specified that the work was to be completed \y the 11th January, 1878. That was as regarded the three principal works mentioned therein. The plaintiff obtained plant, &c, from Auckland, and at once proceeded to carry out his contract. Owing to the difficulty of procuring pr*_t, Ac, aad the breakage of wire ropes, consequent on tbe heavy current in the rivier. considerable 'delays occurred in the work. In 187*?, Mr Webber, engineer to the

Board, wrote to the plaintiff's manager on the works, a.-kirg him to push the work forward more rapidly. In Januiry, 1«77, when the works were proceeding, Mr Pavies. senr., who was concerned with the plaintiff iv the contract, thouah not appearing ia the contract, came to Kapier and proceeded to the works. When he reached the works, it struck him that the lines of the works were different to those given on the plans accompanying the specifications, and that the pegs had been shifted from wh<ere they were when the contract was taken. He communicated this belief to Mr Webber, the engineer of the defendants, but he said that no such alteration had taken place, and assured the plaintiff that they were the same as on the plan ou which the contract had been taken. In March of the same year Mr Davies became convinced, from actual observation, that the alteration had taken place, which would necessitate the plaintiff putting a great deal more work in than had been shown by the specifications attached to the contract, but Webber again denied that such had been done. On April 2nd. on Mr Davies reiterating his belief, from actual inspection, that an alteration had really been -nade. Webber then ndmitted that it was so, but f aid it would not give them any more trouble. He explained that the alteration had to be made, and was made by I authority of the Board, in order to miss certain sections belonging to Mr T. C. Williams iof Wellington. Mr Davies had a survey made by Mr Rochforti' on behalf of the plaintiff, and it then turned out that considerable alterations had been made in the work as laid down in the plan npon which the pliiintia? tendered. Mr Davies wrote a letter on this to the defendants, informing them of the results of the survey by Mr Rochfort. This letter stated that the line, having been shifted from the reef into deep w*ter, would cave enormous additional work and expense to the plaintiff, and he told them that ho would do the work, but should treat it as extra work over and above the contract. This letter was referred to Mr Webber, as engineer to the defendants, who replied that plaintiff had no grounds for complaint or compensation, inasmuch as they ought to have discovered it, and that it did not increase the amount of work to bn.done by the phi-tiff. The extra work alleged by the plaintiff to be thus caused formed one part of the claim. Then, as to the question of delay, the plaintiff alleged that they were prevented from pushing on the work with thit speed th-y should have done, owing to the defendants' engineer f.v'ling to supply them with a test for driving pdes for nine or ten months, though repeatedly asked for the same, thus causing the plaintiff to do a large amount of unnecessary work in driving piles which were smashed up oving to the absence of a test. The plaintiff further alleged that delay was caused by the defendants' engineer refusing to allow of the piles beiDg braced, whereby during stormy weather a number of them were swept away, and the work thus retarded through no default of plaintiff. The plaintiff requested the engineer to alow of the piles being bracod, but he refused, and told them to go on without doing so. At the Harbor Board meeting the cb.irman had said lhat the piles being swept away was due to their not being braced. Ultimately the plaintiff braced the piles in defiance of the engineer, and after that no more were swept away. Tho time for the completion of the contract was January l!th, 1878, and Webber wrote to plaintiff on that date that the work should te finished. Tbe plaintiff replied that he had had to put a large quantity of extra work down beyond the contract, owing to the alteration of the bnes from the original plan made _by the defendants. It was pointed out that instead of 5000 yards of rubble being put in tha embankment as provided by the plans on which the cont act was framed, 12,000 or 13,000 yards had to be carried. On February 19th, )S7d, the plantiff wrote to defendants, teiling them the contract was completed. The engineer to defendants replied that the work was not completed, especially on the west embankment, to which plaintiff stated that an alteration having been made in the plans, he considered this as extra work, and nothing further was said about the matter. On the lGth April, 1878, notice was given to the Board that the work was completed. Ultimately it was arranged between plaintiff and Webber that certain cavities should be filled up, that the cost of certain piles should be deducted from the contract money payable to the plaintiff, and that the latter should call for tenders for clearing certain quarries, the work to be performed to the satisfaction of the engineer to the defendants. Webber, it was alleged, agreed with plaintiff that if these three points were performed by the plaintiff he would certify finally to the comp'.etion of the work under the contract. This ct-rtificate was to have been forwarded to the Boa' d on the 7th May. The plaintiff, rely ng upon this undertaking, performed th.9 conditions laid down by the engineer, but the latter did not forward to the Board the final certificate as agreed on, and declined to give to the plaintiff the final certifioate of the completion until the Board were furnished with a written account of all claims against the Board on account of extra work. Further than this, he recommended to the Board that the. only safe way of dealing with the matter would be to terminate the contract by mutual consent, when all memoranda of claims would have to be settled. Ultimately, though all conditions imposed on the plaintiff by the engineer had been carried out, and the latter had reported to the Board the contract was completed, the plaintiff was and is unable to obtain tha final cert.ficate of the completion of the work. Wherefore the plaintiff sought to recover from the defendant the sum mentioned in the declaration, together with the amount alleged to be due for extra work performed

The Attorney General, with him Mr W. L. Rees, appeared for the plaintiff.

Mr Macassey, "with him Mr George Harper, contra.

Mr C. W. Bishop was chosen foreman of the special jury.

The following were the issues submitted to the jury :—

1. Was a contract for £30,500 entered into between plaintiff and defendants ?

2. Did the plaintiff do the works contracted for with the exception of omissions ordered by the Harbor Board's engineer? 3. Is the plaintiff entitled to the certificate of the engineer? 4. Bas the defendait's engineer fraudently and in collusion with the Harbor Board, refused to certify to the completion of the work, and for the extras, additions, and commissions under the said contract ?

5. Are the defendants indebted to the plaintiff in the sum of _318,2065s lid, orany other sum, for extra works, 4c. ?

6. Were the extra works, Ac, done and supplied iv the execution of the contract ? 7. Were the extra works, &c., or any of them done and supp ie iv pursuance of orders in writing given by defendants ?

8. Did the plaintiff deliver the work to defendants, and did the latter take possession of the work as completed in or about April last ?

9. Was the plaintiff indebted to the defendants in the sum of ,£9500 for delays in the work under tho 16th clause of the general conditions of the contract? 10. Is the plaintiff entitled to recover JE3OS, the amouot of his deposit ? 11. What amount is the plaintiff entitled to recover on the contract ? I' 4. What for extra work ? Mr Res opened the case for the plaintiff by reading the declaration and the pleas. A number of plans, letters, telegrams, Ac, were put in. Mr Bees then called evidence in support of the plaintiff's case; comprising Messrs Gainsbury, Kochfort, Handley, and Davies, sen. At 5.30 p.m. the Court adjourned until 10 a.m. this da.