A QUESTION OF CONTRACT

Evening Post, Volume LXXXVII, Issue 151, 27 June 1914, Page 11

A QUESTION OF CONTRACT

TAIHAPE ELECTRIC LIGHTING WORKS. Judgment in the Supreme Court case | Turnbull and Jones, Ltd., v. the Mayor and Borough Council of Taihape was given yesterday afternoon by the Chief Justice Sir Robert Stout. This was an action seeking a declaration that the defendant' corporation was bound by the orders of its engineer altering works under a contract entered into between the defendants and the plaintiffs. The contract was entered into for the construction of a hydroelectric lighting plant. In the general conditions of the contract was a clause to the effect that if any alteration were afterwards made by order of the Borough Council in regard to the plans and specifications such alteration should not vitiate the contract in any wise, but that any alteration in the works ordered by the engineer in writing should be executed by the contractor and the value thereof, whether additions to or deductions from the works should be added to or be deducted from the amount of the contract. After the contract had been made the plaintiffs' engineer found alterations would require to be made in the mode of constructing the works. Plaintiffs wrote defendants to that effect. The defendants replied that the matter was one for the engineer, but raised no objection provided certain stipulations were given effect to. The engineer was then communicated with and approved most of the alterations, and the defendants also added their approval except in the case of the alteration of the specified turbine. In the meantime the plaintiffs had ordered the single discharge turbine from England, and it had been agreed between the parties that if the plaintiffs had to pay any damages for cancelling the order the defendants would leave it to arbitration to state what sum tfiey should pay, provided the Court determined whether the engineer had power to change the double discharge turbine to a single one. His Honour said that this was not a case in which the engineer had by an order increased the cost of the works. The case, therefore, was not in the class in which the engineer or architect had purported to have increased the cost of works. Nor could it be said that the alteration had made a change in the whole scheme of work. The case turned on whether the altering of tho turbine was such as tho contract allowed. The defence raised the point that the power of the Borough Council was greater than that of the engineer because the contract spoke of "alterations varying tha plans and specifications," whereas the engineer could only make "an alteration in the works." His Honour could not see that one power was more, extensive than the other. He was of opinion that the plaintiff was entitled to the direction asked for and that tho engineer had power to change the turbine. He ga.ve judgment accordingly. Costs would be on the scale to be fixed by the quantum of damage awarded and could be reserved until that point was settled, or until the further order of the Court. Solicitors for the plaintiffs were Messrs. Chapman, Skerrett, Tripp and Blair, and for the defendants Messrs. Arrowsmith and Loughnan, Taihape.