SUPREME COURT.

Press, Volume XLVIL, Issue 7738, 18 December 1890, Page 3

SUPREME COURT.

ATNISI PBItTS. DECEMBER 17. v. Honor Mr Justice Denmston at 10.30 a.m. * BcTa-OW COUNTY COUNCIL. *&**** «_e William Thomas, of AmU &* the Chairman, JrW, ** of the county SSWJtodSS: The statement of thaTia the month of Plaintiff contracted with Atf"* *Hfo to.construct a new snper- %?&&**** _._bridge over the Hurunui S^r_ C g to cemin plans That in twr« eefl, JhS rock to which the plaintiff S^ 69 £? of the pier 5% » Wag three feet is. level of the river bed. _S»» "Stiff entered upon the con•s* 1 the nlans, and as to the deborings before the plans. It was •5* >sfßStne plans were misleading Hep** l ** -«T and that the position of SSfSSSSbto Sow the level of the of 3ft, as stated. In |W of this, it became impossible s**°^?the specifications with referbe substituted ior a conWhilst endeavoring to carry and relying upon the the plans, the plaintiff s*_2XS£tte tothe amountof £163 i^wSSiherrepresent^intbeplans **i of timber and lroutothe old superstructure, ' become the property of the I the exception of so much f f&SZ he required in the work. It was • the Plans that there were e_Loi wtougbtiron-work in tbesuper«S2 S in fact there was oaly I «_■£_* In consequence of tins, only available for the carrying out plaintiff bad therefore l_131t» of new ironwork * JSSSfth"contract. In the contract l"S SpSlanted in .the plans that I <Jffito olcast iron were in the old bridge, „be dismantled, and was to of the plaintiff, and he 18 *? __re?» work up such material *****, mailable. There was, however, » •SsS'SS ths difference of 91081b •frJEfw the plaiutilf. It was also X£tth% iv the plan* it was shown #TilfH3tto of timber existed m the should have become the *£_« There wa., how**"Sdi97s934ft, ana the difference fe^^rto'the plaintiff. Under EfdMM of the contract with regard to T 8 -tnifttlon of the work within six ttftriayfor each and every day over SfdiwUiß defendants deducted from the to the plaintiff the sum SS MS contended tbey were not tffiodow th* ground oi extra work SS It'£• also alleged that it- was ~SZa batweea plaintiff and defendants BmSSs Should nndUiecyHaders *fSd deliver them; and that plalnrtfmid £14 4s 5d for carnage, ana also STia. W for duty on tiiaber, which SJr U w» aareed should be paid defendants. 'Ihe plaintiff gjK' dabnad; £000 18s 9d. The of defence denied aU the _Usj_l aliesatlons, and alleged that „__f entered into the contract with a iffknowledge of all the circumstances «_ecud with the piers. It was also Seeed that a clause in the contract made !t_!oftrative on tbe contractor to satisfy tksmSvas as to the correctness of the __Taad speciflcatioas, and no responsi- &_? saoaid attach to the Council with Stoence ther-to. The defendant also Sealed that it was agreed that they should grths cost of" carriage of the cylinders, % oalj to purchase them. The aefends»w farther aUeged that, there was a __y <tf one hundred and eight days be«S Use period fixed in the contract, but kjt „c Clsrk of the Works having erdared additional works, deducted ten ' &vs therel", leaving ninety-eight days, Bi £1 p« W. to bg paid by plaintiff as b» psaalty. That on the Ist of July, fgjfif an account was stated ana pssStei, bat-wesn the defendants and of all moneys wbich had from lima to tlow become due to plaintiff by defe-da-ta fa respect to such contract, &ad sli additional or extra wo/k ordered bvtha disk ot Works, and performed by SjlaißtiS* a-d there appeared a sam of 0% Us 3d as duo to plaintiff, which was sa_ tff dsfendants to plaintLff, aud acMr 'Saiagar appeared for the plaintiff; icr defendants. MrLs_bl3 was chosen foreman of the sjuslsijurjr. .... : withdrew the claim for tha 4atroaths timber, stating tbat though gaeeapsMr Brown might have anequits&k dbdm, he had advised him that kgjlirfae could not sustain it. He then the case for the plaintiff, and ealkd c*ideace. Ai ISO p.m. the ca3e for the plaintiff dosed, a number of expert witnesses and &S himself having been ex- . £_lffl!d. Ms Joynt now moved for a non-suit on tssjoag grounds. Tho first was that _.«!*_? the clause in the contract, making ftineambeut on the contractor to satisfy itim&lf, be was debarred from making lfa.9 slala Ha also submitted that tbe slalntiff had sent in a claim to the Council 'ior extra work under tho -contract, and s_a&* Be-claim far the sum now sued for 4sreg_-&«d the rock. Further, that the Ecccaat settled between plaintiff "and tbe $s__dant raast be regarded as finaL AS to&e Ueias ior new iron, timber, &c, no had bean shown to recover, as there ~t» a . clause in the contract making It imperative on the contractor to i&wn&in for himself that the quantities ®se Berrees, and that no responsibilty sated oa the Council. Therefore he subaittea' that the plaintiff could have no right to recover for alleged misrepresen-t-~m in the plans, as he was bound to for himself that they were corR&. As regarded the claim for remission of jscasiass, he submitted tbat it was a sKiadkiaa precedant tbat plaiutiff should &w thit ha had been delayed by the acts «£ tlslsßdants, wbich he bad not done. As regarded the carriage of tho cylinders, he *_-titted that the letters between the CsaacU and the plaiutiff constituted a sa&act to purchase only, which was not • !_j«d. Tho letters showed that the «aacil agreed to purchase tha cylinders, jj*t bo. to pay carriage. Aa regarded this to also he submitted that the settled I*os-1 aa between plaintiff and defenv&&s "Tered it. Tbe learned counsel cited mml eases to show that where a settled s&SDSEt had been agreed to between the psi_as,j_d tha balance paid, the Court not go behind them, aud admit fiwi^aauas. Sis fiaaor said he was not prepared to Swaa the question of settled accounts 9B*,aor as to the question of the cylinders gffl after further consideration. The fgp with rejrard to the latter were "glteeas, and that being so, there was to go to the jury. As to the he would hear Mr Stringer. ***'oteiager submitted that ou thesubnalsrepreseiitation by means of the g**s, there was ample evidence to go to S»*»y. If the plans were not prepared *Woiapurpose of guiding the contractor wa the resalt of actual borings, then the •*■»_ »*re oseless. If the plans did not :s[**&at what was actually the case, ?*<& was the use of preparing plans amounted to a.reprefie submitted also that as f*|p-d the clause of the contract as to _n uj fe tbat there was no rock at ?**_*«» therefore, what was the case totally different state so that which was represented In r~jwfta> The clause clearly meant that ~«* *m to be taken out. aad not sand 2l_*aoE)e, and Mr Thomas made his foi the former. With referSfcti l1 * Ihainaa being misled s#*t:f oaor taere was not a shadow that Mr Thomas had been »■ >*&&&. He had bored down and tS^aV 168 ' so that he knew where the Ste r^!rto^f r &** 80me twelve years &tS*il% M^ Tllomas bored,he came to S J?" TP"* be thought was rock, SJI fa * U v ilr Walkden aSured him by 16 tbis was r te was justi«oaU rl aor c s aid not see h ow a man _i»ti« w , oat he ** w on a piece ol in opposition to his own sworn teeSr%Sfs £? M bored and found .no YE„ m? 1 ? & S-finger ask the jury tc SfiliJ* 6 m % Plai _«W -as mfslea by which he believed tc %* ■finger said he should do so. B ?i d . t^ at _, t i ie P l -~tiff himJJ«dautted that he did not believe th« submitted that what th« S?*^ l^B ** P~ns Lnd° speJwcacost. The CuTrk^ Sh?i^.? aan ' P° lnted wt that the ejUndwa would not be s* anfc "as agreed to. Tbiswa! »» «aS« 1 a compromise. As v "- *«aaUty of woo _. aod _-<,_, in tn

bridge, he submitted that the plaintiff was misled. His Honor said that the plaintlfFa only course was to throw up his contract, as he could not go oa with the contract, knowing as he dla that a misrepresentation had been made, get hie profit out of the work, and then sue for the amount on the misrepresentation which he knew of. Mr Stringer thought that this came in the light of a warranty. >' . His Honor did not think so. The course £w^la?d h d6^ nCiff Waß <W«d : tp- the Mr Stringer submitted that all Mr Thomas could hare done, would be to throw up his contract. But when he found oul the misrepresentation he caHed the attention of the Clerk of Works to it, who saia, go on. , - His Honor thought the Clerk of Works had exceeded hie powers in doing so. Had Mr Stringer any case to show that a manon discovering a mistake in the specification which was obvious, could go on as under a warranty.: , . Mr Stringer could not come across a casern this direction. - Hi* Honor pointed out that all the professional witnesses, and the plaintiff himself, had emphatically stated that anyone who had visited the bridge as plaintiff had done could by no means mistake the bridge a* delineated on the plans for the bridge as actually existing. .*¥/" StrtoSer said it was quite possible if Mr Waikden, who , had prepared the plane, and who had been up to the bridge, had made a mistake, that Mr Thomas also vrai mistaken. His Honor quoted from the evidence of the plaintiff to show that he told Mr Waikden that he must have made a mistake in drawing out the plans. Mr Stringer pointed out chat Mr Waikden had insisted that he was right, and that the plaintiff had to tender on the plans. Mr Joynt, in reply, pointed out that Mr Stringer had not met the clause in the contract throwing the onus on to the contractor of ascertaining that the plans were correct, and divesting the defendants of any responsibility. His Honor said he would take time to consider whether he should grant the nonsuit as asked for by Mr Joynt. The Court at 5.30 p.m. adjourned until 10.30 a.m. to-day. .