COUNTY COUNCIL NON=SUITED

Hawera Star, Volume XLVII, 15 December 1927, Page 5

COUNTY COUNCIL NON=SUITED

CLAIM AGAINST CONTRACTOR b AiJLto. RESERVED JUDGALENT GIVEN. Judgment was given at New Plymouth yesterday by Mr. K. \\ . late, S.AI.. on the claim or tiie Jsgmont County Council against Hector I'. Munro, of Opunake, contractor, ioi' £ll6 14s 6d tor an alleged denciency of 609 yards of boulder stone in a contract for SOJO yards. The council was nonsuited. Intention of appeal was lodged. The hearing of the case has extended over several months and has created a good deal of interest in the coastal county.

“The agreement in writing referred to m the statement of claim was a contract made on May 1, said the judgment. 1 "By this defendant covenanted with the plaintiffs and the plaintiffs covenanted with the defendant to fulfil the conditions expressed in the specifications and conditions.” The specifications were lor the supply of 3009 yards of river-bed bou.der stone and for their delivery at the specified sites The price fixed was 2s lOd a yard. The conditions included a provision that the defendant was to complete the works under the direction of the engineer, who was to he the sole arbiter of the contract. The defendant delivered the boulder stone at the sites and was paid from time to time certain sums of money. Up to that time the council had no engineer, but Mr. Corkill was appointed" before June. 1925, and it was on his certificate that the payment of £lO3 was made. Subsequent to July Id, 1925. the stone was crushed, and from the results and tests the engineer was satisfied defendant had short delivered the 3(X)9 yards by 609 yards. The defendant maintained that lie delivered the full 3000 yards anil challenged the tests. It seemed that the plaintiffs were estopped bv the certificate of June ‘AS, 1925, from denying that the 3000 yards were delivered. Under clause' 19 the engineer’s certificate lor final payment, when given, implied Ins satisfaction had been completed and hail his approval. In this case there was no fraud or collusion and no idleness or negligence on the part of the engineer, or a mistake; the payment was expressly a final payment. In Ills opinion the cortifieate for final payment was conclusive and binding on both parties, and the plaintiff must be nonsuited.