HASTINGS S.M. COURT.

Hawke's Bay Herald, Volume XXX, Issue 10093, 7 September 1895, Page 4

HASTINGS S.M. COURT.

Feiday, September 6. (Before Mr A Turnbull, S M.) CIVIL CASES. Judgment for plaiatifla was given iv the following casrss— B. T, Torn* (Mr Se»c---nell) v, E. Coyle. ClMm £11 (h lOd, costs 81 15a, folioitor 15=. 6.1. S. Tnornbou (Mr A. C. Lewis) v. Tarlha Knrnpn, jndgmenu summons ; order made for immediate payment or In default 14 daw. Howard nnd Lewis (Mr A. C. Lewi4 v Wlvita Huru, claim £6 4% judgment summons ; order for immedinte payment or in default eeven days' imprisonment in Nipier gaol, George Brown (Mr A. C. Lewis) v. Otent! Pomira, cliim £5, judgment summons ; urder for immediate payment or in Uefitulb Eevea dn>s' Ijnprisonment; snapended till the 25ch inst. Genrge Brown (Mr A C. Lewis) v. Tuihu Pomara, claim £4 16*, Judgment summons ; order for immediate paynißnt or in default seven days ; order suspended till the 25tb inst. S. Chirltoc (Mr A, C. Lewis) v. Jamea Hogg, claim £S 12i, costs 89, solicitor sa. Hori MftDtjari (Mr Sheath) v. VV. Douglas, claim £18 for wages, judgment for 80s, and coats 16s. 6 H. Roach (Mr A. C. Lewis) v. D, Mattbieson, claim £18 12a Bd, judgment summons ) order made for immediate payment, or iv defanlti 14 days ', order suspended whilst ft payment of 30a per month is made, MACKENZIE AND PERKINS V. SOhhTTt. Claim £40, amount of contractors' deposit, Mr Coroford for plaintiff, and Mr Loughnan for defendant. Mr Cornford, In opening the case, said this was an action brought for a refund of £40, moneys received by the defendant for the nse of plaintiffs. Phlntlffa hud engaged to erect the Roman Catholic Cburoh at Hastings, under the direction of the architeota, Messrs Allan and Sollitt. One of the partners, Allan, had left the firm, and Sollitt was the only oae npon whom his client could claim. One of the conditions of contract \vaa that a deposit of £40 should be sent in at the time of tendering, to be retained In the event ot the tender being accepted, as a pledge for the fulfilment of the contract. This sad been Improperly retained by the defendant. John Mackenzie, contractor', Hastings, in partnership with H. T. Perkins, sold ha entered into a contract to ere.cb the Roman Catholic Church at Hastings. When witness sent in the tender he sent in a cheque for £40 signed by the partners. Had never seen the cheque since. Allau was the architect, and was a partner with Sollitt. After sending in the tender wltuesa called to see how the tendering whj going on, and was toldhe wonlii prob»b'y gat tbe job. Allan told him so. Afterwards Allan told witness he had got tbe job, and he was to sign the oontract. Thought it was on May 17th. Papers (produced) were what he signed on behalf ot his firm. After signing the Contract Allan told witness that it wob an understood thing that the £40 deposited belonged to them, the architects. Witness said the conditions showed that this was to be returned to him, and objected. He hoi made no private arrangement with them and had never heard before that the £40 was to be theirs. Allan afterwards brought up the dissolution of partnership between himself and So'litt, and said that they wanted the £40 lo square np with. Witness considered it and thought he was ' trapped, because he thought thpy would take it out of him. He therefore told them 10 hold his cheque until ho told them to paj it in. They agreed to that. After leaving them hu immediately went ;;.d stopped payment ot the ohfqne by wire, Saw them a week following, ami Allu,n ag<>ln spoke to him about th» 540. Allan told him he had presented the cheque, but it was not paid, Allau sai<? he wanted the modey. Witness told him he vonld get it by and by. Tr'ed to pnt him off. Did not recollect seeing Allnn again about it. Shortly after that the dissolution of partnership between Allan' and Sollitt was adveitlsed, ! aid Allan told him that Sollitt was going to carry on the business, After ihf.t i Sollitt brought up about) thn £40 deposit. 1 Sollint came to witness's house, and told ', him that he claimed the money. Sollitt said he was working out a patent, and wanted the money very badly to send 1 with the patem. Witness tiied to put ' him off again, but it was no vie. He i told him he could not give £40, but gave him a cheque for £20 (produced) on the 1 15th June. After that Sollitt came sgaiu 1 and said, " Well, old man, about that . £40. I want to show Father Smyth? that ! I have returned yon that £40." Sollitt did not return him the £40 cheque. Sollitt 1 wanted witness to give him a receipt for 1 £40. Could not say what it said. Wit--1 ness gave him a receipt, and Sallitt said 1 ib would be all right. After this Sollitt 1 wanted more money. Witness called 1 at Sollitt's office and gave him a i cheque for £5, Sollitt again came ' np to tbe job and wanted more money. 1 He said he was pushed for his rent, and il 1 witness would give him the balance of the ' £40 it would oblige him very much, as he r could then settle his rent. Witness gave ' him a P.N. for £15, and Perkloa also 1 signed It. There was very little said. Witness refused to give Sollitt] cash, and '■ was reluctant to give him any more. After that tbe contract went on, and ' witness claimed to have finished it some ; time in March and aeked Sallitt for a 1 final certificate. Sollitt told him "to go 1 to the devil." This was lifter witness ' had got all tbe money Sollitt said they 1 were entitled to under the oontract, Before that, about the 11th of May, wit- ' ness and Perkins went to SolHtt's house : and Sollitt promised to ptve them c certificate. Sollitt gave them a certificate (produced), but it was not a proper one, After bhnt witneis app!ied for the fiaal certificate, when the coLvsr«.i t'.on quoted occurred. Sollitt never gave him any statemerb as to what whe , due on the contract, or on extras. Re ceived the last payment about a fortnight \ ago, bub no statement. Sollitt told hi in , he had no more to do with it ; he had , given ib Into Father Stnythe's hands, , When witness saw he conld get no more money on the work he spoke to Sollitt lc , his office about the €40. He told Sillitl [ he had seen Father Smythe, and would he now give him Mb final certificate ? It was about) a fortnight ngo. He said "No 1 | Go to the devil." This was only on out [ occasion. , Mr Cornfonl observed thrit his witnei.s [ appeared very much irapres'fcd with the , persoaallty of the devil. [ Witness, continuing, told Sollitt he , demanded the £40 buck, bub Sollitt said "No! I have got your receipt to show J that you have cot h.ick the £40." Wit said "That will 1 criminate you more," and called in v man as a witness. Sollitt I tried to close the door, but the man went I in, and witneea ai-ked Sollitt) if he would , give the £40 b;ick, aad te naid " No." , Witness had received no consideration [ whatever for the sum of £40. Sollitt never gave him any receipt. Cross examini d by Mr Loughnan : ] Thought he w«« piying the £40 for blackmill. Sijllibt said he claimed it for his pians and specifications. Allan never | told him the £40 was for them, but s iid it was a usuil thing. After he signed the plans und specifications Allan aiiid that j £40 wac f.ir payment of them. At that interview witness asked them to hold bis , cheque over It was his intention , not to pay them If he could poai sibly get out of it. He intended them to suppose it would be paid later on. For many reasons he did nob turn round I like a man and refuse to pay them. , He knew the arbitrary power oi • au architect, and that it might lead to \ the loss of a year's work, lie paid the £40 under a condition ot the contraot, and thonghb bhat their proposing to keep the £40 was a deliberate swindle. Having I signed the contract he thought it was tou late to say so. Witness said at first he could not pay it, hut wound up by agreeing to. At the next interview with Allan about the matter witness tried to " bluff" Mm. When Sollhb called for the £20 , witness demurred inwardly, but gave him 1 a cheque. Sollitt never gave a receipt for it. Often paid money without taking a ' receipt. Under all the cirenmetancea, ' Sollitt being his architect, he was forced \ to pay the money. Neither Allan nor ' Solllbt over threatened him. They told him they must get the money, but never threatened. Had tendered for a bouse for Mr Hughes under Allon and Sollitt. Conld not swear thai. h n 'i irl or had not deposited £5 under '. ' : tender (produced). Could not t/.voar tbat tho I bignatcre produced in a book wan his signature. Never signed in • such a book. Signature produced in tho SHm3 bonk, was his signature. Admitted he waa wrong. Recollected Mr Hughes' contrnct. Them was notblnj; in tin! .specification about 1J per cent for copies of plann, but ho did pay the £5. He never £0t it hack They kept it back, but he dlri not know what they , wanted it for. He could not go for them ■ because they had no money. They had i him for it, Sollitt musb have made a , pood haul lately. There was another i contract for Mr Greene's house. He paid £0 (ii an.i never got it back, no worked lit flugb<<a' nbour t>vo monthy. Conld not spo thnt thero wero ptneilliugß on \ 'op of contract produced, lie inspected tho plniio ami speeifioitionß before ho 'uiderad in Allan and iSillitt's presence. It waa not poi'tcd out by Allan that 1J per centj written od the spect(icatioun meant thn cosl. of plt\nn aud npeclfiuatious, nor dirt Sollitt "iy tbat this was a miatnko, £-10 would be c*iargud. In all catmn i ■at onu he had ulln.vi-il Allan uurl Sollitt' < ' ' keep t.ho dt'pnxits. Ifc (iid not know ii, >■ ii for pi ;i, a and f'p:!i > ilir:ntlnijH. H« wiis "■K'lsnd to ■■I^ll a rewipt. iv full to FuthiT '■■■i vtlm, but. hi enjiM.lered tlioro wii'i money due to him. ifcforo signing tho contract In 1 , did not tell them not to present the cheque. Hud uuver told I'iither Siitytho alinut thin .imttrr until the day when ho received the ln-'li payment, Cou'd rjnb fell vhnther hn bad not paid for coplea ot plans and specifications.

I: is a general thiDg anio^g't architects— - V that i.<, where they tender for It as one nf 3 -- tlm conditions. Did not keep ft book Iv ( wnlch ho k(=pt bis quantities. By Mr Coruford : Allan did not poiotj out any pencil mark<* ou i h« specifications, nor was it explained thnt £40 would ba ni charged for the plans. Had four contracts under Allan and Sollitt. In Kolly's case he did not part with imy dejooit. £_ There was rever any talk about a £40 i charge for p'"nn, &c , tin til after tbe | g n cintroct waa <tgned. In nil ciees where j i n£ p'i'ii, &c, have to bo psid f°r it is so Al: ntiitpd i:i the general conditions. If he pj, h -.d complained to Father Smythe it w mid have put him in a very peculiar portion. In no other cases bar! he piid fnr pans without its being stated in the ab specifications. Did not renuemtier whether t<J aiytblua was Bi;id. In Kelly's e<wn Sollitt told him he would have to put £10 J on for plans and specifications, but wit- {q] ness took no notice of it. Mr Loughnan said they wers in an awkward position, bb one of thn partners was away in Coolgardie, but ho wonld phow tbat the transaction was a usual „ one amongst architects. L George Sollitt, architect, deposed that his firm prepared plans, &c, for the Roman Catholic Church. Recollected Mockerzie coming to see them prior to tendering. Allan explained them to Mackenzie. Sureties were required, and in speaking of this. £40 wns mentioned as tbe sum for plans. &c. On the contract there wera pencil marks saying that copies of plan", &c, would be supplied at a charge of 1 J per cent on tonder. This wns the usual charge and custom in the profefsion. When' Allan read tbia witness drew bis attention to the fact that £40 would be the charge instead of 1J per cent, as there waa increased work. . Nothing more was said. Allan explained to Mackenzie tbe i rensons nf tbe extra charge, and thab Ib \ would be retained for tho plans in the c nnnal way. The oontrnct was signed on j. 17th of May ; bhe cheque was presented n on the sth of June, and came back dla- * honored on tbe 7tb. He never heard a wori about hn'ding the cheque back, Ab the end ot June Allan and he dissolved "~ partnership. After going to sen Maokersrte the latter called at their office In a _ great bluster and oaid thnt bp had stopped his cheque becKuso be did not want it to come back dishonored. Witness asked what they were to do about It, and Mac kenzle said if it wan given np he would shortly give another one for the plans, &c. Witness said he should keep ib for a short time. After th« partnership dli solved witness told Mackenzie that he phonM be pl*>d to have the money, ns he hnd pii'i Allan half of id »nd other ( commHsionr> cine Mackenzie appeared j surprised that witness had given Allan ; half, but promised to give a cheque iv a few days. Witness had to go to Mackenzie's house and got 16. Witness gave r. receipt, ' Recpived £20 on acconnt for copies of plans and specifications." In August he sgmln wpnt to Mackenzie's house and received a P.N. for £15 nnd a cbrque for £5. It might have been in the effi;- 1 . Perkins was present on one occasion. >'»ithpr Mackenzie no Perkins ever mafV j- •' objec'ion to tbe charge at any tlm 1 in wiwesa 1 prp^nce. Maokenzle P".ld for the plans for Kelly's houses, and So was retained in Hughes' contracb. The whole of the work in Hughes' and G'eune'a contracts was done by Allan, beciu'e he (witness) wonld not then work wUh Mackenzie. H»i been a contractor for yei'" Hud never known a case whpre p!»n a , &c, worp not. pnld for by the con-t-ictor, excepb under the Government an fchool boards, The certificate (produced) w.is given by him. It- wns not a fi-ial one. A3 ceVTal thine had to be finished. On the 3rd of August! Mackenzie cilied and said that; bo bad finished, und witness said he would go und litfpecr. There was nn adjustment to ba made iv the account, and Maekerzle promised to give certain figures (■a the Monday. As lie did not do so by Tuesday wltn^s handed the figures and certificate to Father Smythe. Witness did not think ib ndvis-'ble to say why hihad nob certified certain things bad still to be done. Cross-examined by Mr Cornford : Had been nn architect six years in Hastings und six years 20 years ago. Had been h contractor. Mackenzie said be would give a obeqne for the plans nnd specifications. The receipt was given In the form stated by him. Allan did not stipulate in the conditions the payment waa tobo made. He cnnld not swear where b<» got tbe P.N. It might have been ab the office. Did not pub the 1J per cent in the conditions, bs he always relied upou the hop.eaty of the men they were dealing with. He had made np «cnounts nhowlng the amount due to Mackenzie nnd given them to Father S ythe. Mackenzie had never nsked for n statement. He gave Macker z\e his €40 cheque backCase adj iurned to the 20th.