The Water Main Contract.

Gisborne Standard and Cook County Gazette, Volume II, Issue 190, 1 September 1888, Page 3

The Water Main Contract.

JUDGMENT AGAINST THE COUNCIL. A case arising out of the late water main contract was heard at the R.M. Court on Thursday, before Mr Booth, B.M. George Humphreys sued the Borough Council for £l4, work done in connection with the above contract. Mr Brassey appeared for the plaintiff, and Mr Chnsp for the defendant Corporation. G. Humphreys deposed that he claimed 10s 9d, commission on purchasing stop valve, 5s for preparing sketch of valve, and other sums for lead, spun yarn, etc., fixing brickwork in well, and extra piping. The extra work was done at the request of Mr Townley. Claimed £44 16s 6d for the extra work done, but the Council would only pay him £3O 16s 6d. Mr Townley ordered all the work before it was done.

By Mr Chrisp : He ordered 800 feet of water mains. Did not allow tor overset. Found it necessary to get 31ft extra piping. Mr Townley told the men to alter the work. He looked to the Overseer for directions. The pipes were carried through the well and Mr Townley afterwards denied telling the men to alter the line of pipes. The claim for brickwork was caused through this mistake of Mr Townley. The alteration to safety valve, £3, was owing to a larger bore being required to relieve the engine. Produced a plan showing deviation from original contract. The whole of the work was taken over by the Borough Council and nothing had been complained of. When the Council declined to pay his extra account he sued them. Did not make any offer to go to arbitration. E. Wilkinson: Work bad not been carried out as originally intended. He went down one morning, and found the men altering the line, and they told him Mr Townley had ordered them to alter it, so he let them go on. The safety valve put in by Mr Humphries was not an extra, but alterations were made. 836 feet of pipes were laid down, the total length of which when laid was 795 feet. The pin, which he was told was put in by Mr Townley, would have led into the well. Mr Townley deposed he had a conversation with the workmen. Drew their attention to the fact that they were taking the line too near the front of the shed. Put the peg in the line the men were taking so that he could calculate where it would strike the engine. Drew their attention to it again, and told them if they had taken the correct line they would not have injured the well. Never drew their attention to the well at all. On the 26th June the work was taken over. He got a letter from the Engineer of the Brigade telling him that he would not work the engine unless a proper valve was put in. This valve was not an extra work. Humphreys said if anything was wrong he would make it right. That was why the money was paid before the work was completed. He did not say one word about the charge for extras when he was paid, The safety, valve that Humphreys put in was inches in diameter, with simply a small open iron pin, and the only means of escape was the force of the water against the iron pin. The Engineer tried it, and pronounced it unsafe to work with. The article put there in the first place was not the safety valve at all. It was simply a hole plugged up. The engine might have been blown to pieces. By Mr Chrisp: The line was made up to the shed when he put the peg in. Did not give any instructions about the shed. When he found that the pipes were put through the well ha insisted on them being removed. Humphreys said it would be very expensive, and it was agreed that if it did not interfere with the work they would make the beat of it. Authorised Humphreys to get a stop valve. Humphreys said the cost of it would be about £lO. He said if that was the cost get it. Never promised to pay the commission, lead, etc. Another account was for extra lengths of water mams, fixing brickwork in well, etc. Did not authorise Humphreys to put down any extra pipes. There were no extra lengths put down. The first thing he knew about the charge for brickwork was when the bill was sent in. Humphreys made a sketch of the stop valve, and said it would cost £l5. When the work was done he said £l5 would not pay him. The Council paid him £l6 17s 6d. Re-examined: Was quite clear that he put the peg in the line which had already been cut by the men. It was not by his direction that the line was diverged from where it was proposed to be laid to where it was laid. Humphreys promised to put the safety valve right when they made the payment. Alex. Robinson: Was working for Mr Humphreys. Saw Mr Townley put in a peg at the engine sued. He said nothing to him. Altered line of pipes three feet in consequence of seeing the peg. He was quite certain that Mr Townley did not put the peg in the line he made. It was put three feet away from their line, 8. Hooper : Was also working on the job. The peg was put three feet away from where the first line was cut, and they altered their line to strike the peg put in by Air Townley. Mr Chrisp submitted that the plaintiff should be nonsuited as the conditions of the contract stipulated that any claims made for extras should be submitted to the Engineer, and if any dispute arose the matter should be referred to arbitration. The accounts had been sent to the Borough Council, and it had referred them to Mr Townley to report on them. Mr Townley took them, and out of the total amount claimed, £44 16s 6d, he allowed £3O 16s 6,d. He quoted a previous Gisborne case, Rees and WiPere v. Johnson, in which it was decided that any disputes should be referred to arbitration. He maintained that if these were the conditions of the contract the plaintiff must be nonsuited.

Mr Brassey argued that the ease cited by Air Chrisp did not concern the present case at all. He submitted that the work had been passed by the Engineer, and the money paid. * After the contract had been completed Mr Townley came to the plaintiff and wanted alterations made. He thought it was nonsense to say that the matter should be sent to arbitration. Mr Humphreys applied to the Council for the money, and the Council abs lately refused to pay him.

His Worship overruled the application for a nonsuit. He uid not think that by the clause in the contract the plaintiff was bound to adopt that plan. He could resort to any court of competent jurisdiction to recover what he considered to be his just due.

The Court was then adjourned to the following day. On resuming yesterday morning, Mr Chrisp called— T. Morrison, who deposed that he was at the engine shed on the day in question, Saw Mr Townley put a peg in the line which had been cut. Mr Towmey put in the peg in order to calculate where the line would lead to. Did not near Mr Townley give any directions as to where the pipes were to go. On Mr Chrisp asking what conversation witness had with Mr Townley,

Mr Brassey said Mr Townley had nqthing to do with the "blatter.' 'Wilkinson was the man who had to pass, the work, Mr Chrisp said Humphreys and his employees wanted io show they were following Mr Townley's directions. ' His Worship said from the evidence of the Overseer it appeared that Mr Townley had a good deal to do with it. Witness continued : Air Townley said the pipes would come under the engine, The peg was not put in to direct where the pipes should go.

G. Hurtiphrßys: The trial of the work was made on the day the work was passed. Did not beg Mr Townley to get the trial over that afternoon so that payment could be passed that evening. A few days afterwards Mr tsmaiil told him the valve was not suitable, Mr Townley asked him to make the alteration. Told him he was to be paid. By Mr Brassey: Received progress payments on Wilkinson's recommendation. Tilers was no point td start the work from. Peiieotiy satisfied that 836 feet of piping was laid down. The extra piping for which £lO 16s fid was paid was ouleide the contract altogether. By the Bench: Everything was completed and passed, and the final payment made when he was asked to put in a new valve suitable for the engine. Mr Wilkinson re-called: Did not object to tffe line qut to well. Marked a line so as not to go near the well. Did not put m a peg. Made one of the house blocks the guiding point. Went down some days afterwards when he saw the drain was being out in the t ine he laid down* The day after the drain

had been altered, and heasked the reason. The workmen replied that Mr Townley had been down, and put in a peg. He said he supposed Mr Townley knew better than he did, and did not say anything more about it. When he saw Mr Townley he said he never altered the line. He did not insist on the work being done right because it would have been a considerable expense and delay. The valve was not altered when he passed the works. He had nothing to complain about Humphreys slumming the work. This closed the case.

Mr Chrisp considered that the items charged for were extras. They were part and parcel of the same contract. It had been said that Mr Townley had no right to interfere with the contract, but if this was so the Council was not liable for work authorised by the Council. He contended that Air Townley had a perfect right to interfere with the matter. It was quite clear that the account for extras should be settled by the Engineer, and if it could not be satisfactorily settled it should have been referred to arbitration.

His Worship said that after all the witnesses had been examined Mr Chrisp said the case should be settled by arbitration. He though that objection should have been raised before any evidence was given. Mr Chrisp asked what was the good of making conditions if they were to be broken ? The case was teeming with inconsistencies, and it would be far better to leave it to arbitration. His Worship would find great difficulty in deciding it. The plaintiff set up that there was a separate contract, and the only evidence in support of that was that of the plaintiff himself. Mr Townley had absolutely denied it. The specifications provided that 800 feet of piping should be provided and laid. He admitted that 836 feet had been laid but the ground measurement was only 795 ft 6in. With regard to the brickwork, it was perfectly clear that the evidence given by Messrs Townley and Alorrison was correct. He asked because the Council did not make Humphreys remedy his mistake, was that any reason why he should ask them to pay him? Mr Brassey said as to the first question raised, that of referring the matter to arbitration, the Council had refused to pay the money. The work was passed and the Council would not pay for it, and their only course was to go to Court. If only 795 feet of piping had been laid, why did the Overseer certify that 800 feet had been laid ? As to Mr Townley going down to the work, and putting in a peg for a purpose of his own, he knew that the work was going on, and that it would go through the well, and yet he did not stop it. He contended that plaintiff was entitled to everything he claimed. It was not even proved that he had made a profit out of any of the items. His Worship, in delivering judgment, said as.to the point raised by Mr Chrisp that the claim should be referred to arbitration, aS the matter had been brought into Court, and defended, he thought the matter should be settled in Court, The two points on which the whole of the argument, and most of the evidence turned, were first, as to the safety valve put in after the work was passed and paid for, and the second as to the divergence of the pipe line. He had already in, dioated that the work being passed by the proper Overseer, who had seen it in course of construction, must be considered favorable to the plaintiff. The Overseer was there, and it was his duty to insist on the line going in the direction pointed out. He for a time thought Mr Townley haff altered the line, and did not interfere but let the work go on one or two days longer, and then thought it was not worth while to alter the work that had been done. As to the alteration in the safety valve, the work was completed and passed by the Overseer, who gave his certificate to that effect, and it was paid for, and an alteration was afterwards made on the advice of Mr Smaill, who said it would be better for the engine if a new valve were put in. Outside the contract altogether, he did not see that he could interfere with the charges made in any way whatever. The Overseer had certified that there were 836 feet of pipes, the total length when laid being 795 ft 6in, and the extra pipes had to be paid for. He would give judgment for the plaintiff. Mr Chrisp asked that no costs ba allowed, as the matter should have been referred to arbitration. Costs were allowed. Costs of Court, £llss; solicitor’s fee, £1 Is; witnesses’ expenses, £2 Is.