CEMENT SUPPLIES

Evening Post, Volume CIII, Issue 142, 19 June 1922, Page 5

CEMENT SUPPLIES

MASTERTON BOROUGH WORKS His Honour Mr. Justce Hosking ga-ve judgment in the Supreme Court on Saturday as to three actions concerning the supply of cement to the Masterton Borough Council for the construction of a septic tank and the carrying out of that work. The litigation arose largely from the shortage of cement, while matters . were still further complicated •by the Board of Trade regulations respecting allotments. The first case was that of Ftancis John George Holmes v. the Masterton Borough Council and Charles M'Dougall, in which, Holmes proceeded against the council for the sum of £249 7s 6d, in reepect of the supply of 25 tons of cement and charges. The Judge held that thers was no contractual relationship between M'Dougall and the plaintiff. Insofar as the borough was concerned, there was a contractual relationship, but the action was defeated by certain technical defences set up under the Municipal Corporations Act. His Honour held that the Board) of Trade, which directed the supply of cement, had no authority to act on behalf of the council, and that the borough engineer, in receiving the cement and dealing with it, had no authority to bind the council. Accord>ircgly, the claim against the council failed. His Honour held that at the time M'Dougall1 received the cement, from the borough store, he was guilty (technically) of wrongful conversion, andi he therefore found against him at the rate of £9 10s per ton for 25 tons, but disallowed the i claim against him for charges. The next case dealt ■with was that of the Cement Pipe Company, Ltd., v. M'Dougall, a claim for cement supplied, first, at the rate of £6 per ton, and afterwards at rates running up to £9 10a. His Honour held that, with reference to the first supply, M'Dougall hadi not succeeded in establishing that the piice at which the contract with the company was mad© was £5, but held that the company was bound to supply the whole of the cement necessary at £6 per ton. In regard to subsequent supplies, the company set up. that there was a variation in price by which M'Dougall became liable. His Honour found against this proposition, and held that the plaintiff was ejititled to recover on the basis of £6 per tan, and gave judgment accordingly for £257 Is 2d, with interest, costs, etc. The third action was taken by M'Dougall against the Borough Council on a claim for £1858 5s sd>, the balance allegedly due to him. His Honour held that the cement supplied from the borough store was the property of the borough, and M'Dougall had never been, released from his contract with the borough to construct a septic tank, and to supply the necessary cement, and that accordingly the fact that he hadi given notice to two engineers, officers of the council, of the arrangement with the Pipe Company, whereby he was to get cement at a fixed price, was not binding upon the council, on account of the fact that the council had never acquiesced in the arrangement. His Honour said that the. council was entitled to be paid for the cement supplied to M'Dougall from' its store at current rates for the time being. Insofar as the 25 tons supplied by Holmes were concerned; hie Honour directed that the council was not entitled to retain any sum from the balance of''the contract moneys due to M'Dougall on that account, but with reference to other cements euppliedi by the council, the council was not bound by the notice to its engineers that M'Dougall was obtaining his cement at a fixed price. That was the position, his Honour held) whatever M'Dougall's claim against the Pipe Company might be with reference to the fact that the company had "made default in supplying M'Dougall with 'cement at prides agreed upon between it and him. The amount which plaintiff was entitled under jud'g-. ment was held for further consideration, his Honour intimating that he would allow costs to the plaintiff M'Dougall. During the hearing of the actions at Masterton, Mr. H. C. Robinson appeared for tit© Pipe Company, Mr. M'Kenzie Douglas for the council, Mr. .0. H. Tread-well for M'Dougall, and Mr. H. E. Evans for Holmes.