LAW REPORTS.

Dominion, Volume 2, Issue 436, 19 February 1909, Page 7

LAW REPORTS.

SUPREME! COURT. I , CIVIL • gREMOVAL OF A SCHOOL AT UPPER HUTT, '-■'.. STAUNTON AND' -.KING} v. EDUCATION BOARD. ■ The hearing of the case',of, William James Staunton arid'Hardld Daniel King v; the Wellington Education Board—a ; claim for £411': 15s.' I'd., moneys 'alleged to ■ bo' due in connection' with the removal of a school in the Uppo^'Hutt'district—was'commenced before Mr.. Justice' Cooper yesterday. ! ;Mr.'.Wjlford (with' hiiri Mr.; Levi) appeared (juibßlialf of the plaintiffs; and Mr. Johnst'oufbf tho dofendant'/Board. :-. ' Opening .the case .for- tho.' 'plaintiffsy - Mr. Levi/said -the action Was brought'on a .quantum meruit with an alternative' claim ' for ari implied warranty! -The'facts were rather uricoinmoii, but not' complicated! Plaintiffs' entered into a contract,with the.defendant Board to remove a. schooHiouse at. Upper Hutt to ;a new site a'considerablo distance away. The specifications contained'a num-' ber of. provisions relating to works which the contractors, wore, to. perform other, than .tho.work of removing'.the structure.., For examplfej it' was provided that decayed' bases; studs, !eto'.j \ which- were• found, to be defective, should be' replaced by heart'.timbers. •The main point to be determined was' the meaning of-the - term ; "to replaqe ■ decayed .timbers.",. - .-..", .'- His.Honour.:-.There is; also''the- question ■as ; :tb the; validity '.of/the. town district by--law, by virtue of which -the re-erection of the building was forbidden. Further, there is the point as;'to what was the effect on the. contract of! the alleged representation, by the Board: that-.tho responsibility' for. .obtaining the consent'of'the looal body was to be that of the Board. | Mr. Levi, resuming, said that after entering into the contract,. plaintiffs' proceeded to carry out the work without applying for a permit' from: the local .body'.' .They were granted .permission to tako, the building in sections;'along the/road; At this stage- the, clerk to the , local: body intimated that he ■ would, not allow, the- school to be reinstated until it had'been" approved by- him'in. accordance with' the, by-law. When plaintiffs inspected .the-'building., prior- to. tendering' for the .work there was nothing to indicate that the building was. ahythirig" . like .as much worm-eaten"as' turned:out to; be tho case.As soon as it was subdivided it;was'found that, at least 8() per' cent, of the timber was unfit for further/use.- To enable plaintiffs to out their: contract it'would.-have been practically necessary, for them'to erect a'new, building. AVork of-that/kind was to be distinguished from a contract for a new.struc--tui'o. ; Here all the plaintiffs had to do was td.'-cirry-put; cortatn. specified work; in tho othor/casd the pnn's of'ascertaining'whether the work/ could be" carried; out was thrown on the- contractor.. It was-submitted that.the work-of replacing 1 worm-eaten timbers was really, not within tho; contract. The 1 town: clerk, who was also the inspector, forbade the re-orection of, the. building. Here';'tho performance of. the.'contruct was prevented by the non-performance of '■■, something! which plaintiffs liad-not'.contracted to do. Defendant-, Board repliedto the notice sent' to thorn'.'by .'calliiig.-upon'plaintiffs'to fulfil their cdntratt;. . Shortly afterwards plaintiffs were proceeded;- against in-the''Magistrate's' Court for breach of'tho by-law, arid they we're fined. £2, per!day for'every day frorii tho date that they went'on-with tWcontr'abt. Upon plaintiffs- declining, to coritiniui-with, tho contract, the' Boarß took possession" of tho' Work,: including- timbers to be/used in ,connection with-it. /Plaintiffs';ha.d received/absolutely nothing-from'the. Board in the way of progress payments', and.their, deposit of £7 10s.' had'not been'.returned to'them., i '

' His Honour: Did the. Board complete tho iWOrk? -'' ; ', •'''■■ ;'■■ .- v - .' Mr. Levi: Oh, no; The Board is erecting ane.iv school, and -.-wo allege, it .is .using plaintiffs"" timber in the l building: : Continuing,- counsel said that, another incident upon which plaintiffs did not reljywas that a gale, which was exceptional 'in.its Eeverity,'..blew down ; portion'of the old.;.building .which, remained on-the.bld : site. As a matter of fact, it w'buld not have bem blown: down if the timber in.it had not been in a rotten state. /The .claim was; made up of the actual expenditure by plaintiffs upon the work, plus remuneration, calculated on tho daily.wages, for-plaintiffs'for the time they wotb engaged' on-the contract! : . ■

'Defendants,- by their statement of defence; Set; forth; that plaintiffs' undertook, for the siinuof £286 8s. ! ; to carry out the contract in question; Under this contract the buildings iwero'to'be dismantled in a crtreful manner,' walls .and " plates. to bo: cut.in as few places as' possible;- and 'only when necessary for easy handling of :the. sections,' arid the whole was to be put neatly. and strongly together, i The floors.of corridors and classrooms, were to be replaced by.torigucd and grooved reasoned heart-of 'matai, .closely fitted arid firmly nailed; all base's, stops, ; gables} facing;cover-boards', finials, .'etc., to :bo thoroughly overhauled (when found defective) with heart; timbers, and there was. a general condition in the contract that "the building 'should -riot.-'-'be altered from its present plan,: arid that the contractor. should put the work back as neat. as could be under, the 'circumstahcos,' and replace all decayed , timbers," J The contract imposed upon the plaintiffs; tho duty of s applying for;' all • por.mits.- and. licenses demanded .by:,any local •authority-, arid- the oayraerit of'any- fees in .respect thereof.' Defendants denied that they gave, any assurance to. plaintiffs that no porriiissioiv was .required from; the Town Board in regard to: their Works; They also denied it was'.owing' to their default that plaintiffs failed; to proceed with their work. They-. alleged : .that it was\plaintiffs'.duty, to any. necessary permits, and that plaintiffs wrongly. refused to replace: decayed timber arid to carry out the contract in the terriis of the'plans arid specifications; v.. Evidence, on behalf of "the' claim was given by William James Staunton (one of the plaintiffs),- Charles .Benzie',' hotelkeeper, Upper Hutfc,': Stephen Shand,' contractor, Upper Hutt, John Bongo, timber merchant, Upper Hutt, and Angus John M'Curdy,. town clerk to the-Upper Hutt Town: Board. -\ -.''.; At this stage- the' Court adjourned until this morning. . ]!.;., IN DIVORCE,.- ■';';■'..;'.' Sitting in camefa.yesterday, Mr. Justice' Cooper heard £he: suit Henry v. Henrjv husband's petition for. the dissolution of his marriage on the ground of habitual bi-iety on the part of respondent for a period of four years prior to the filing-of. the petition.-; ;• •.'■:■'."■ Mr. C. P. Skeri-ett, (with him-Mr.. Wilford) appeared on behalf of the petitioner, and Mr. ,Vori Haast watched the prbcbedirigs on behalf of tho respondent, who had withdrawn her'defence. ■, : After petitioner and a number of wit-, nesses had-. . given evidence; . his Honour ■granted a decree nisi, to be made absolute after the expiry of three months. Interim custody of the' children'of the marriage was granted to petitioner, but it was ordered, as had been agreed'upon, that respondentshould have reasonable access' to.them..;Tho questions of costs and of permanent alimony were reserved, arid the parties were granted leave to apply in ■ regard, to other questions' which might-arise. . '-;