HENDERSON V. NAPIER HARBOR BOARD.

Hawke's Bay Herald, Volume XXI, Issue 5293, 29 January 1879, Page 2

HENDERSON V. NAPIER HARBOR BOARD.

The following is the report of the proceedings in Banco in the above case, as published in the Lyttelton Times :— Mr Macassey, for the defendants/ moved for a rule nisi in pursuance of leave reserved at the trial; , :,."'; I. To strike out the amendment made . . in the declaration ab'nisi jprius upon the , grounds: 1. That if such amendment altered the plaintiff's form of action, the ■ alteration was of too sweeping a character, and one which the defendant was not prepared to meet. 2. The plaintiff in his correspondence with the defehda^tj and in his particulars of demand, treated , •= his claim in respect of the alteration re- „.'., f erred to in the amendment as one in •< respect of extras for which he was entitled ■''•■> to payment under the contract, whereas --J^ the amendment had the effect of barring .{'-M the plaintiff's right in respect of such alteration upon the ground of a tortov quasi fraud, for which the remedy was by ! an action for damages. 1 : ' •" '••' '"• 11. For a nonsuit in pursuance of leave reserved at the trial, or to. enter judgment for the defendant in case the Court should be of opinion that the state of the record precludes a nonsuit being entered, upon :.- . the grounds : 1. That there was no.cvi- . dence whatever given at the trial of this •■M.v i . cause of fraud on the part of the engineep^ in refusing to issue his final certificate, . ;, 2. That there was no evidence of frau- . dulent or collusive conduct on the part of--. the board, either by itself or in conjunc- -W'S tion with the engineer. , ' 111. Failing the foregoing, then for 'a, f^new trial, or for a reduction of damages & -^, iU in pursuance of leave reserved upon 'the'.?'.''"^ grounds: 1. That the verdict of the jurjr; ?tViR was against evidence, 2. That the yerrT '"" diet was also perverse, the jury first hay- 5 g ing by their findings acquitted the n " defendants and the said engineer of moral:«\?q« fraud, and then upon the learned Judge v explaining to them that they should find;. 1 for the defendants ! unless they believed 1 " that the engineer and the defendants j had^"^.^ in mutual concert acted unjustly, die-; honestly, corruptly, and from evtt motives, ? the jury almost immediately altered tlieir ;. '- finding, and omitted their f ormer qualifi- '[. cation. . ' ; . ,^.; His Honor : That would not appear in^ " ' the verdict. " ■ :.\>i:<; Mr Macassey : It weuld appear on they notes of the Judge. V x- 1 , :f His Honor : It would in the usual k;- K course. It was a thing which might be • made a ground for a new trial, but it " ~ J v - v * was extraneous to the res gesta of the" case. - ; ."'■•• : '' : "'*\i Mr Macassey: I understand that the, Court will not receive an affi davit on any „ matter that the Judge could make a, sub-, ■ jectof his report. " His Honor : Can I put it on niy report to the Court above ? •' •;?, Mr Macassey: I ' submit yp'tir Honor i can. The jury expressed their opinion \V that defendants had not been guilty of *t moral fraud, and your, Honor directed them that they should find that defendants had acted fraudulently, wickedly, <fee. His Honor : I used strong language, " but I did not make a note of it. I thought it necessary that they should say whether or not they found that there had been mains animus. The words I used were. the epithets of an action which might indicate a fraud at common law. '''[-' Mr Macassey If your honor thinks ; there should be an affidavit— — ?/. His Honor : It has been ruled again and again that no amount of affidavit can be of value against a Judge's notes. Mr Macassey : I assume that the Court; has taken notes of the first finding of the jury, inasmuch as the Judge' directed them in a certain way, and after that ; direction they reconsidered the question and returned a verdict wholly, repugnant. . to their first finding. - ; His Honor : Of course it was a little bit startling. The jury evidently shrank , from letting down the engineer too heavily. When they were brought face to face with the result of their finding JT" they did not like it. They found . that } there was nothing immoral in an engineer ,^ ' combining with a harbor board to deprive a contractor of what he had a fair claim to. Supposing one could come to, the'; conclusion to which one must come, taking the decision of the jury in its form and force into consideration, I should not feel » justified in excluding you from your proposed remedy. Mr Maccassey quoted several cases in. which juries had been induced to alter their verdicts through the direction of the ■ Judges. His Honor: I did not lay it down to the jury that it was necessary for the* plaintiff to establish that moral fraud had been committed by the defendants. Mr Macassey : My next ground is that A the jury, by their findings, have affirmed that the engineer's certificate in respect of extras was withheld by fraud and collu- . sion, whereas there was no evidence to ** show that a certificate for such extras had . ever been applied for or refused, or indeed that any claim had been made in respect of such extras before the commencement of this suit. His Honor: .But there was evidence that claims for extras had been made. Mr Macassey : All that was claimed would not come to the amount awarded— £3000. My next ground is ' 4. That the jury erroneously regarded as orders in writing for extras by the engineer, directions and instructions given by the engineer's subordinate officers, regarding the manner in which certain of the works were to be carried out. 5. That under the contract there was no evidence to go to the jury of any extra or additional works or materials in respect of which the plaintiff was entitled to make a claim, inasmuch as there was 1. No order in writing of the board sanctioning the additional expenditure. 2. Nor was there any certificate by the engineer of the performance of such works ; and 3. There was no evidence that such certificate was withheld by fraud and collusion on the part of the board and the engineer. 6. That the jury have awarded, as a balance due in respect of the contract, a very much larger sum than is claimed in i the declaration in respept thereof; and also interest, which w«is neither claimed nor recoverable ; and also to show cause^ why the costs of the first trial, and of this? rule, should not be made costs in the cause. Mr Macassey : We contend that the fourteenth issue should have been withdrawn altogether from the jury, as there had been no evidence given of fraud or collusion. His Honor : I could not say that. I don't think that was fairly opened, Mr Macassey : We shall contend so, your Honor. We also submit that if the effect of the amendment was material at all it entirely altered % eJ[e.Qt pf. ftg

declaration. With regard to the » lonsui point, we Bhall contend that there • was n evidence of fraud on the part of th» a engi neer in his refusal to grant a cert ificate /■ We also contend that there waa i to cvi dence of fraudulent or collusive c onduc on the part of the "Board. His Honor : I hold that the frau d- mus be collusive — an independent frf rod oi the part of the engineer, as we mi ght cal it, would be no ground of action agains the Board. When do you wish i ihe rul to be returnable ? If I had sons c doub about some of the grounds allege d— l an not clear about disallowing some of then — I cannot refuse you a rule nisi. '. ' ought to fix the time and place. Shall . make it cause to be shown at some tim< to be mentioned here, unless applicatioi is made on the other side to show cause at Wellins'ton 1 Mr Rees could perhaps , say which place will be the more con venienfc. Mr Itees : I cannot say, because I hav< not cohoented to leave being given tc enter a nonsuit. His Ho.nor : I reserved leave to Mi Macasaey to move for a nonsuit. Mr Rees : If I take any part in this H might be said that what was done was by consent. His' Honor: Of course no affidavit on the subject could be admitted. Mr Macawey: For the present will your Honor make the rule returnable after the vacation 1 His Honor : I will make it returnable at the first sitting in bam^o, to be on Tuesday, March 18, at C hristchurch, unless application be made to » the Court at Wellington to show cause there.