SUPREME COURT.

Evening Post, Volume XVII, Issue 318, 13 January 1879, Page 2

SUPREME COURT.

? CIVIL SITTINGS. THIS DAY. (Before his Honor the Chief Justice and a Special Jury.) C. O'NBILL V. 8 BROWN. The following gentlemen were sworn in as a special jury: — Messrs. W H. Levin (foreman), L. Blundell, A. J. M'Tavish, H. Barber, J. M. Richardson, F. A. Krull, E. W. Lowe, J. Moore, J. E. Nathan, E. H. Hunt, H. Green, and J. Hughes. This was an action to recover £325 as commission. Mr. Oliivier appeared for the plaintiff, and Mr. Buckley, with Mr. Stafford, for the defendant. Mr. Oliivier, in his opening, said there were nominally four counts in the declaration, but they were merely different ways of putting the same thing, and a verdict on any one count would be a verdict for the plaintiff. Tbe plaintiff was Mr. Charles O'Neill, C.E., and the defendant Mr. Samuel Brown, the well-known contractor. In 1876 Mr. O'Neill, with Mr. T. K. Macdonald and Mr. J. Henderson, promoted the Wellington City Tramway Company, and called for tenders for the work. Mr. Brown's tender was so much .below the estimate that the promoters were surprised, and went to Mr. Brown and said, " We don't think you can do it for the money; you had better take your tender back and put on £2000 cr £3000 more;" and Mr. Brown very naturally fell in with the suggestion. Inclined, no doubt, to reciprocate this spirit of generosity, Mr. Brown then said to Mr. O'Neill, " There is nothing in the specifications about your commission. It is usual here for the engineer to receive 2£ per cent, on the contract. Am I to consider the commission as to be paid 1" Mr. O'NeiU replied, "If it is the custom here, by all means do bo, and regard it as if it were in the specification." Mr. Brown paid £100 on account of this commission, and wrote letters referring to "tbe balance," which was to be paid as the work progressed. Curiously nothing was said either in the declaration or pleadings about this £100, and the plaintiff had claimed for £325, the full amount Mr. O'Neill gave evidence to the above effect, saying that he was the original promoter of the tramway, but he was subsequently joined by Mr. T. K. Macdonald and Mr. Henderson. They obtained authority to construct the tramway, aud called for tenders. Mr. Brown's tender was so low that they referred it back to him " for re-consideration." Mr. Brown then mentioned the matter of the commission, and witness said that if it was the practice in Wellington for engineers to receive commission he should expect it. Mr. Brown agreed to regard it as in the specification, and sent in a new tender, the amount being £13,000. and it was accepted. Witness furnished him with the necessary plans and tracings, and received a cheque for £100 on account, but had received nothing more. Mr. Buckley cross-examined the witness at considerable length, to show that the plans furnished were very incomplete, and, in the case of the buildings, defective. He admitted that he had not done all the work agreed upon, such as laying down the 'curves, &c, which was done by Mr. Davie*, the company's engineer. It appeared to ba the custom. here to put the engineer's commission on tbe specification. It was not the custom, in England, and the engineer got no commission. Mr. Brown did not say that sometimes the contractor paid one, and sometimes two per rent , but that as he required an extra amount of work he would give 2£ per cent. Mr. Buckley applied for leave to enter a nonsuit, on the ground that the contract between the parties should hare been ia writing, under the Prevention of Frauds Statute, but the nonsuit was refused by the Court. Mr. Cllivier argued that even though the plaintiff had furnished incomplete plaos, and had so failed in the fulfilment of bis contract, he was entitled to recover the full amount, and Mr. Brown bad bis remedy in a crossaction. His Honor, after argument, said that he did i not know that he could direct the jury to that effect. For the defence, Mr. Buckley admitted that there was a special contract between the parties, though not such as the plaintiff represented, but contended that the plaintiff had forfeited bis claim by the non-fulfilment of bis contract. Tho arrangement was that, as there were special diftculties in the work, Mr. O'Neill should supply special engineering details and plans of portions of the work, and that in consideration of this the unusually high commission of 2£ per cent, was to be paid. Mr O'Neill did not fulfil his part of the contract, and Mr. Brown had to employ an engineer for nine months at £5 a week to do the work which the plaintiff had undertaken to do. The C4se wa» proceeding when we went to press.

Not Sound Securities.— Musical notes. Auctioneering Pathos. — A Yankee, auctioneer lately indulged hi the following little bit of the pathetic : " Gentlemen, if my father and mother stood where you do, and didn't buy these boots — these elegant boots— when they were going for one dollar, I should feel it my duty as a son to tell both of 'em that they were false to themielvee and falsa to their coantry.