SUPREME COURT.

Lyttelton Times, Volume LI, Issue 5584, 17 January 1879, Page 6

SUPREME COURT.

CIVIL SESSIONS. TnuHBDAy, Jan. 16. (Before His Honor Mr Justice Johnston and a Special Jury.) HENDERSON y. Uik NAPIEB UABUOUH BOARD. The Attorney-General, with him Mr Roes, tor plaintiff; Mr Macassey, with him Mr Harper, for defendants. The Mowing wore the Special Jury . Messrs (LW. Bishop (foreman), D. S. Melville, F, Hobbs, W. Pratt, G. M'Kay, G. L. Jf°f» Watson, H. Espinette, J. W. Calpin, H. Sawtell, J. g. Guthrie, and P. Laurie. ~ r ® 0e ?» before opening the case, asked that all witnesses should be ordered out of Court.

Mr Macassoy asked that the Board 8 Hngi neor might bo allowed to remain. -p ineor His Honor thought that as toEnginee was more or lees interested in the raattei ne should not remain. , Mr Macassoy eaid that the Engined a certain extent a defendant in the ca ®°- and his leornod friend were entirely ignorant of the technicalities of tho case. His Honor: No doubt you have been perfectly coached. . . 1 Mr Stout: Tho defendants can have tliur Se HU Honor : How can counsel ho properly instructed in questions of skill without the advice of the Engineer? If , .\ ho wore one of fraud only it would bo different. Mr Stout : They could have employed some other scientific person to instruct them. Wo have no objection to their having nn Because he might be culled first, and then allowed to remain. Mr Stout: Wo shall not call him first certainly. If it is admitted that he has been acting all along under the direction of the Harbour Board, be can remain. His Honor ; This is an action to recover a contract, and also as a tort arising under the con raot. The Engineer might have been made a party in the one instance, and not in the other. Mr Stout: Mr Weber has to appear before the Court in a character different to that of a mere expert. His Honor; I don’t like to bo left to discretion in these cases. Can you give me a rule; because I can imagine that this might be a great hardship. [His Honor referred to authorities.] I would suggest that Mr Weber withdraw during the opening of your case, and if it be found that tho testing of the credibility of witnesses requires the absence of all, then all be required to retire till called. Mr Stout: We accept that, your Honor. Mr Rees was proceeding to open tho case, when—

His Honor asked if it was tho practice in any part of the Colony for the junior counsel to open tho case ? Mr Stout said it was so.

Mr Mapassey agreed. ■ His Honor had followed the English prac 1 tico.

Mr Macassey quoted the practice in Ire land.

His Honor was very much in favour of two counsel being engaged, and hud no wish to interfere impertinently iu the mat I or. It was of importance that a correct practice should bo established.

Mr Rees explained to the jury that the case was as follows:—The defendants had called for tenders for certain works at Port Ahuriri and plaintiff’s tender was accepted and a contract signed on July 11. 1876. The worts, which consisted of a breastwork 400 feet long, a rubble embankment 1000 feet long, and two groins each 1040 feet long, were to be completed by Juno 11,1878. Delays occurred through unavoidable circumstances, and the Harbour Board Engineer wrote calling the attention of the contractor to them, in November, 1876, and January, 1877. The plaintiff’s engineer, in January last named, noticed an alteration in the lines pegged, and pointed it out to the defendants’ engineer, who denied that any alteration had been made. Some months after, the defendants’ engineer admitted t hat an alteration had been made, but pleaded that there would be no additional expense caused to plaintiff. Mr Davies, the plaintiff’s engineer, then had the place surveyed by a Mr Roehfort, when it was found that a new line had been set down and the whole embankment had been thrown out of the original position, from shallow water into deep water. On May 14, 1877, Mr Davies wrote to the Harbour Board, pointing out the additional expense which would be necessitated by the alteration and that additional material and labour would have to be paid for as “ extras.” The Harbour Board’s' Engineer, Mr Weber, wrote a report to the Board in reply to Mr Davies, to the effect that the contractor had no ground for complaint or compensation, as the cost of construction or maintenance was not increased by the alterations which had been sanctioned by the Board, and as the contract provided that the contractor should have satisfied himself as to the plans and specifications being in conformity with the work as pegged out. This report was sent to Mr Davies. On June 1 a letter was written asking for a test to bo taken as to the driving of the piles, as it was found that the piles would not drive. The Board had to supply the piles, but charged the contractor with the broken ones. Borings had been made, but the plans did not show correctly the nature of the ground through which the piles had to be driven. The contractor wished to secure the piles against heavy weather by ties or braces, but the engineer would not allow this. A gale came on, and thirty or forty piles were carried away, and the pile-driving machine was damaged. In spite of Mr Weber, the contractor then secured the piles, and after that they were not carried away. On Jan. 11, 1878, Mr Weber wrote to the contractor saying that the work ought now to bo finished. To this the contractor replied that the extra work caused by the fault of the Board had occasioned the delay. On Feb. 19 the contractorgave notice that the work of his contract was completed. The next day Mr Weber wrote calling attention to certain works that had not been completed. Mr Davies went on with these works, cautioning the defendants that they would be charged for as extras. On April 1G the defendants received notice that the whole work, including extras, was finished. On April 17 Mr Weber declined to give a certificate of completion until certain works had been done. These works were subsequently done. Mr Weber promised the certificate for May 7 on plaintiff’s engaging to do those works ; but at the Board’s meeting on that date Mr Weber made no report. On remonstrance being made, Mr Weber refused to send certificate until the claims for extra work had been settled. Meantime, the Board wished the end of the work to be strengthened, and applied to Mr Davies, jun., to have it done. Under the circumstances Mr Davies refused to do it, except as an extra. The Board obtained a legal opinion. Mr Macassey objected that a legal opinion was a privileged communication, Mr Stout informed the Court that the legal opinion had been published in a newsKer report of the proceedings of the Harr Board. The plaintiff did not intend to call the solicitor. They would call the Secretary to prove the truth of tho newsP“P 0 r report. They proposed to show that the Board had acted upon n state of facts communicated to tho Board by the Engineer.

His Honor, as far as he could see, thought tho matter was admissible.

Mr Rees continued: The Board did not compel tho contractor to strengthen the end, but did the work themselves. Mr Kinross, chairman of tho Board, happening to see Mr Davie ß junior, promised that tho certificate would bo given at the next meeting. After further correspondence, Mr Kinross telegraphed to Mr Henderson, at Wellington, to toe effect that the plaintiff was indebted to the Board for omissions, and that the certificate could not be issued until tho matter was adjusted. After that tho Board purchased the tramway on tho works, agreeing that tho contractor should have tho use of it for maintenance. From that time the Board had taken possession of tho works, and took no further notice of the protests of tho plaintiff. The plaintiff put it to the jury that the Engineer and Board had unjustly colluded in tho keeping the certificate back from the contractor. The Engineer was a paid officer of tuo Board and not an independent authority. Mr Macassey applied for Mr Weber to be allowed to bo present, as it would be practically impossible for the defence to bo conducted without him. Mr Stout gave reasons for the exclusion of Mr Weber. If Mr Weber were admitted all tho other witnesses might be. Mr Macassey had no objection. His Honor directed that all the witnesses should pome into Court. The following evidence was then taken George Edward Tainsbury, examined by the Attorney-General, deposed: I am solicitor to the Napier Harbour Board. I was in 1878.

I did not attend the meetings did on one occasion. I drew up the contrwt produced, I remember a dispute the jloard and contractor, in wfewnw tothe con etrucLion of the Eastern Iher adchtiom l m struoled the Board on it. I «d somo con; vorsation with Mr Davies on it, . The docu ment produced is a copy of my Mr Macnssey objected, as the opinion w privileged. Objection allowed, . , Witness continued: My opinion must hare been given after a conversation with mr D Mr'Stout: What was that conversation ? Mr Macassoy asked his Honor to rule whether or not the question was admissible. His Honor : You object to it os a conversation in respect to an opinion given to the Board by its solicitor. Mr Macassey s I do. Mr Stout : This is the privilege of the Wl Jlis ß Honor ; This is the privilege of the Cl *Mr Stout: Do the other side take the ground that Mr Davies was the servant of the Board. Mr Macassey : Wo do not take any ground. His Honor, after further discussion, ruled that the question could not be put. Witness : I had no other conversation with reference to this matter. Cross-examined by Mr Macassoy : I have been in Napier about four years. I know Mr Weber. Mr Macassey : What was Mr Weber when you went to Hawke’s Bay F Mr Stout; What has this to do with the question P , Witness: He was Chief Surveyor. I don t know, that ho was Provincial Engineer, and upon resigning took office as Engineer to the Board. The members of the Board are— Messrs J. D. Ormond, Kinross, Captain Newman, J. A. Smith, Yautier, Upjohns, and the Mayor (Mr R. Stewart). They are not paid. I know Mr Davies and Mr Angus M'Kay. I have seen the latter lately. I know Mr Robinson and Mr Bold. I have seen them lately, but not hero. The Board consulted me from time to lime after the commencement of the work. Mr Macassey : Did the Board act upon your advice ? Mr Stout : What was the advice ? We have no objection to the question if wo know wbat the advice was. Mr Macassey : I will leave it as it is.

Re-examined : I "'as consulted before June, 1878—bol'oro April, 187,8—0 n matters of dispute between the Board and the contruclor. The first opinion I gave was before June. I should ear that Mr M‘Kay knew something about the work. I don’t know that I was obliged to subpoena everyone who knew anything about it. I don’t know that the Napier Board was a happy family. Boards are not generally. I don’t know that there were six on one side and sis on the other, and that the Chairman gave his casting rote. Mr Macassey thought that his learned friend was endeavouring to obtain information from a wrong source. Mr Stout ; Learned counsel on the other side came to this source for information. Witness continued: I don’t know that the Board were dissatisfied with their engineer. James Eochfort deposed ; lam a surveyor and civil engineer, residing at Napier. I know the Napier Harbour Board, and the plaintiff by name. I was employed by Mr Henderson to survey the condition of the western mole of the harbour at Napier on May 19, 1877. The plan produced is, I believe, the original plan, I look a tracing of it. I produce the tracing. My instructions were that there was a difference between the contract plan and the work as being carried out. I was to survey for this. I made the survey, and produce the office copy of it. The plan shows a survey of tnc work as it exists (in red), and (in green) the work as traced in the original plan, fitted on by means of a block of sections. The sections are shown on the original plan. The red line is nearer the channel. The lines mark the centres of the works. The circles on the red line show the position of centre pegs. I saw them there. They were being worked to as the centre pegs. The alteration would have the effect of carrying the work beyond the Government sections. The old line carried the work through the corner. The sections I believe belong to Mr T. C. Williams. I have heard so. The lines down the river at the end appear parallel—nearly so. They would not run into each other. The “ Iron Pot” is on the eastern side of the plan. The woodwork continues the line straight out, along the channel of the river. The alteration makes a difference in the centre of the woodwork as well as of the stonework. About 26 feet nearer the channel of the river.

To his Honor: There is the same width of channel between the moles as in the original plan. The channel is not very changeable. It was not before the work.

Mr Macassey: That is a puzzle. Mr Eees: We will soon hare the puzzle solved.

Witness: It appears to me that the block of sections on the work has been shown incorrectly on the original plan. My plan is correct to the best of my belief. I fixed the block of sections by two buildings which, I was given to understand, were on the sections, and which are shown the plan. I saw no other pegs. I saw a point which was shown to mo as the starling point of the work by the overseer of the works. (This answer was not taken down.) Cross examined by Mr Macassey : There was a small wharf of which the existing mole is an extension. (The witness explained the positions of the eastern and western moles, and of the “ Iron Pot.” The old wharf is marked on the plan. The eastern mole is an extension of that. I examined that. I could not say that there has been any deviation in the execution of the eastern side of this. The present distance between the moles is the same as that shown on the plans—4oo feet. I spoke of a discrepancy of 26 feet. I fixed that by the block of sections. The buildings by which I reckoned were pointed out to me by a person named Johnson. If my information from Johnson was incorrect, I suppose my calculations were wrong. I don’t think there is any plan in Napier showing the exact position of that wharf. I don't think I should have followed the wharf down the eastern mole and compared that with the western mole. The position of the wharf on the contract plan may have been incorrectly shown upon the plan. The position of the western mole is not the same as on the plan. There is a difference of 26 feet east and west between the contract plan and what I found upon the ground. It would make a difference of 26 feet in the channel. There is not that difference in the channel. The question whether or not the alteration necessitated more work I cannot answer, as I have not been consulted upon it. I believe that the distance for stone work is the same—that is in length. I could not state positively. I have not compared my plan with the engineer’s plan showing deviation. I have never seen his.

To Mr Stout: He did not produce it to mo.

To Mr Macassey: I had not seen the plans and specifications when I made my survey. In May, 1877, I could compare the line of the western mole, which had been completed up to the timber work. The rubble work had been completed. I have shown what 1 believe to be the end of the stonework. It is not a matter I was instructed to notice and I may take the wrong peg. I cou id no £ say whether that was the first portion of the timber work or the end of the stone work. I believe the distance is the same in both plans I cannot answer the question whether the deviated plan necessitated extra work. I have boon living in Hawke’s Bay nine or ten years I cannot say whether the deviated works were in deeper or shallower water. I know fW the shingle has shifted, and that an island has shifted. I have seen charts showing the depth of water. 6 To his Honor: I don’t know how lens? such charts are of value. a To Mr Macassey: I have known Mr Weber during my reeidence in Napier Ho To Mr Eees: The curve now is not the same as in the original plan. Oharies Bonfleld Headley, examined by Mr Stout, deposed; I am Secretary|to the

Napier Harbour Board. I know Mr Weber’s signature, (Bundle of let, crs between , T . gincer and contractor produced.] I ’ nise this letter, [produced] It is from me i , Mr Davies, enclosing letter from Mr Weber i 0 the Board. [Letter enclosed wu» read. It stated that the only course for the if, ;m j )o adopt was to terminate the contract. ; Xhu is Mr Weber’s signature [to a letter referring to alteration in the alignment, and statin?, that the contractor had no cause for com? plaint or compensation.] I have attended a ii the meetings of the Beard, except once or twice. Mr Weber attended once or twice. The (meetings wero]open to the Pres?. Xb.’ public took no notice., His Honor .—lf open to the Press, they must bo open to the public. The Press ba] no more right than the public. Mr Stout: They assume that they have. His Honor: The Press arc present at meetings for the public. Witness : After these disputes the bud. ness was not done in Committee till quite lately. There was a private meeting on Dec. 31,1878. The first private meeting was i n April 1878. The contractor was pressing f,, r payment then. Ido not know of any private meetings before then. We have newspajK-rs in Napier. They reported the meetings „f the Board whennot in Committee.

Mr Stout: Wi 1 you look at this ? Mr Macassey : I object to this. Mr Stout: Did you ever read the reports which appeared in the Press ? His Honor: We don’t know what this is.

Mr Macassey; Let the minute hook be produced. It is a novel proceeding to put j a a newspaper report. Mr Stout: Let my learned friend wait, I am not putting in anything. To witness ; Did you read the reports of the Board meetings ? Witness: Occasionally. On June 1 there was a meeting. I expect the reporters were present. I supplied a report to one paper. I used to give them my minutes. I remember several legal opinions being read. Not on any particular date. I can refresh my memory by looking at the minute book. I don’t see that the solicitor’s opinion ,was read. The matter was referred to the solicitor. The matter of strengthening the ends of the piers. There was a letter from the Engineer on June 4, informing the Board that he had acted on the opinion of the Solicitor. The reading of the opinion is not recorded. The minutes are correct as far as I know. The opinion would be read with other correspondence. Ido not know what the opinion was. Mr Macassey objected. Mr Stout: I cannot get the opinion from you, though you have notice to produce. I want to show that the solicitor had been instructed that the contract had been fulfilled.

His Honor : The question is whether this letter is as to a fact. If the defendants published to the world an admission, that admisson may be used against them. To witness: Are you prepared to verify v report of the reading of that opinion ? Witness; lam not prepared to say what was published. Examination continued: 3he contractor declined to strengthen the ends of the piers, and the Board did the work themselves. This matter was not discussed on May 7 or April 23. On May 21 a letter from the Engineer was read about strengthening the ends of the pier, and a resolution was passed to obtain the solicitor’s opinion on that work. The points to have advice upon were—“ 1. Can the Board call upon the contractor, to strengthen the ends of the piers in the manner thought necessary by the engineer ? 2. Upon the contractors refusing to carry out the work as an extra, can the Board carry out the work without vitiating the contract ? 3. The piers and approaches being finished, is that a completion of the contract so far as those structures are concerned, and will the term for which the contractors have to main those works date from their completion or from the completion of all the works included in the contract, some of which are still incomplete.” That was unanimously agreed to. I am merely secretary to the Board. I cannot speak on engineering matters. I believe the incompleteness referred to debris that had to be removed and imperfections generally in the work which was supposed to be complete. I had not the custody of the contract. The Board’s solicitor answered all those questions. I have reason to believe that the answer was read at the Board. I believe I saw it in print. Mr Macassey objected again, as the opinion was privileged. His Honor was of opinion if the Board consented to the publication, the privilege was gone. I had the opinion until it was handed to learned counsel. If they hare not got it I have. Mr Macassey: As long as lam responsible for this case I shall decline to give up the opinion. His Honor: After it has been published ? Mr Macassev: Yes.

Witness : I suppose it was read by me. I probably handed it to the reporters to publish. 1 think so, because it was included in the general correspondence read at a public meeting on June 4. Mr Macassey: I don’t know whether it is of any use my continually objecting. His Honor : I have absolutely decided against you.

Mr Macassey: If this is allowed, any opinion of the solicitor can be given. His Honor : If the opinion had been published. I see no redncti ad absurd«m there.

Mr Macassey : There is nothing to show that the reporters received the opinion with the authority of the Board. I contend the act was of the Secretary, and not of the Board. His Honor: Did the Board ever find fault with you for the publication of similar documents ?

Witness: No. Mr Macassey: As the Judge rules against us we will hand you the opinion. Mr Stout then read the opinion, in which the words “As I understand that the only work remaining to bo done is the clearing the refuse in the quarries,” occurred. Witness: After that the Board carried out the strengthening of the piers themselves. His Honor: You make no claim for that ? Mr Stout: No.

Witness, to Mr Macassey -. The meetings were open to the public as far as the public was concerned before the committees. They were held with closed doors, not locked. His Honor: I must hold that meetings to which reporters are admitted are open to the public. To Mr Macassey; After these disputes the legal opinions were read In Committee All Mr Weber’s letters up to that time were read in open meeting. Mr Henderson’s and Mr Davies’ letters and telegrams were similarly read. The bundle produced contains all the letters from the contractors. We recognised Mr Davies as a contractor. There were letters from Mr Davies, junr, and another. Mr Weber was present only when called in. I was S resent from the beginning of the contract, lither Mr Davies or Mr Billing came first about the contract. The solicitor’s advice was taken on several occasions. They are recorded in the minute book. James Siohard Davies, examined by Mr Sees, deposed: I know Mr Henderson and the Harbour Board. I had an interest with Henderson as a dormant partner. I acted as his agent j my son did so too. Either my son or myself was constantly there. I recollect the contract being signed. I was present. Mr Macassey: The contract is admitted. Witness: The very best of plant was procured for the contract, which was carried out as expeditiously as possible. I went on the eastern side with Mr Weber. I got copy of plans and specifications. I don’t think they differ substantially from the original plans which have been produced. I remember going to Napier about the beginning ot Jwmary, 1877. The men were working. Mr M Kay was managing for Mr Henderson. I went over to the western embankment, which was then in course of construction. It ap’ peared to me that it was not in accordance with the original plan, and I called Mr Weber’s attention to it. He was not over on that side, but on Jan. 10 4 met him on the eastern side and told him that the western one was not according to the original plan. Ho assured me that it jvas. I asked him what the curve was, and ho said 30 chains' radius. Mr Graham vra»

—. . ti , m , Mr Q rail am to Henrritb t ,‘ ' .Nothing more ivas faul dr*.’"’ ; unlot lu the month of l! i “Jko'ohim twice about it. He Man 1 ' 1 1 me that the work in acain !1 ‘ J,ir it j ,i, c original plan; that he :uve r, i !ir, ‘ <■ . in whom he had every con--I«'J :i ~,a" i who was aceuMomed to act out V- ' o <wl that he had been over there 1 spoke about it a*' l ' I ’, forwards. I «as then positive that riu,r ‘ - T A f th>n had been made, for the curve i ‘; i ‘ , SL.nd one. which the original was V told him that I was sure the curve m’ l - ,i njrjiiii assured me that it was oof -aKh from Mr M’K.y, who r '- ' rod it from Mr launders. Th ‘* wade '"ulrH.mir: 1 We oan't take that. 1 saw Weber again m April, J' ic admitted that the curve was wrong. * , lone ago I cannot remember the 11 '* oonversaliom 1 told him. I think, that l i t i-o-ked it from the memoranda of Mr ir k-v ' Ho said then that it had been , f o -i* to avoid going through Mr 1. iv'n’ 1 ’! ’ hnd 1 went on to the western ,i«rkment with him. Pegs were pointed ‘ m ,„ o Mr Weber pointed out the ° Ut ,v.« We saw two which were in a f r! fw,''i the verandah of the Ferry publici‘ n< These legs were according to the hOlls He slated that they were the i ,L[-«, ( Witness showed the pegs on iTf,.’ n l There is a line of verandah in \ M \ [‘l-, houses, and Mr Weber pointed f "that the f>ogs were in a line with that. Ti,.-e‘isa verandah five feet wide. I have ii ‘examined Mr Bochfort’s plan. 1 meaCl j , t ... (he time, and found that the pegs fl ' -n feet st ream ward, away from Mr sections. The new pegs were 33 ; ;Yn the direction away from Mr Williams’ •tiens. Mr Weber pointed out the original [[*' the new pegs wore to be seen. He to "'Other eiplanation, except that the liberations' wore to avoid Mr Williams’ sec- • i n ,< 1 have followed out the two lines down tithe proin. The centre of the groin, the v o ni-work. is shifted as well as the embank* raVnt I could not say to what extent. The work ss made cannot tw fitted into the plan. (M- Davies’ plan was hen' put in.) I have rut a red line on this to show the deviation to lite chairman and members of the Board. l\hd so in the early part of April. After M* Weber’s admission 1 wrote to the Board «vin' that 1 should have to do a considerable* amount of additional work, which I ehould treat as an extra. In reply to my letter the Board sent me a report from Mr Weber denying my right to make it an extra. The Board made no intimation to me that the v intended to alter the line. They did not den’v to me that it had been done by their instructions. The quantity of stuff required for the new work was double that for the old in cubic yards. To his Honor : We got the stuff from the Spit side, and took it across in a barge. Witness. Hie quarries were at Battery Point and Burne street Oae might be SCO yards away. We have the number of waggon loads, and also sectional measurement f. This plan was plotted from soundings taken by myself. I took very rat care with them. I plotted it. have been connected with public works since the year IS4O on the Continent, Australia , ana New Zealand. The original cross sections are of no use for this. There was a verv large scour in March, 1877, which scoured a large hole. I made the soundings somf’vhere about the month of March, 1877. Afterwards I got Mr Rochfort to make a surrey of the surface. I made this plan from the s’aundiaf!. The drawings I received in the original plans I based the contract upon. The tender, 1 think, was for a lump sum. The quantity for each side, I think, was given Seauie the price on the western mole was Bs, ana ;n the eastern at 6s per cubic yard. The tenic: f>Vyi yards in the western ru.h.i-tn.n;. in the work as executed there wire 12.172 yards. In the groin work 1 :gr. only give the quantities us p.v.. v. The calculations in the first instut r sf.-r correct. I checked them. The difrC-r :s accounted for by the embank- I net; i-ing m deeper water, and two large t tolr- which were scoured, but which would no: inre been touched, and by the mole not being :n a boulder lank in one place—where it would by the original plans have bet- Tie soundings of the holes were on western side, 22, 22, 21, 21, 26ft from high water, on the western side they were 22ft ail along. The deepest part on the boulder bank ca me old plan was 12ft from the top of embankment. In the places I have mentioned there would be about six feet to be added to the measurements already given, for the top of me embankment. Shifting the groin, put it into deeper wuter ti.un it had originally been in. I never consented to waive my claim for extras on this account. I remember application being made for a test for driving the piles. I myself made several applications.

Mr Mica;set: Perhaps this would be the tiiie for raising the question as the Engineers instructions having been given in writing ,(.-r work; on account of which extras were churned.

H;* Honor: It may be that what might pr 'jrf-r.v be refused in an action for breach £ might be admissible in an action you. Mr Attorney, in your ce-.-a-atm l*. v the foundation for the admisi - ■ -his evidence? Mr stout: So far as this evidence is con/J . J 1! brought to resist their claim us on account of piles. , J -; -•* • l.’o pju put it in this way ? ■ ia . v ! * ; it the defendants by their •• -*• j*- o-t of v our power to apply for ■. \\e say tliat we are charged ’*■" ‘---uamj tipliin them by saying that ** ■ 00.-npeiied to spend three days in -'-1’ u’.e pile. p" - tne items in connection with the 5 o! ,P ll v»-£1338 Os, £2556 13» 4d, and * Le plaintiff claims for these as •v-'-'OUiit of the contract, but he has “*««« °«lers for that. ~ : M e are offering this evidence as u -' for delays for which you are chargih: Honor: As at present advised, Mr mTi/ 1 { ° r l * iat JP ur I xwe ll i» admissible. . , * : Prom that point of view we ; -o objection to the evidence. rj r : If there are portions of the 'iler.ee which should not be submitted to ■’.j jr . v four Honor can withdraw them. . MAcassey : I have no objection, but it I! duly to protect my client. \\itr.c-* continued : I was in Napier agafn l A l' r:i > The works were then com-p.'.-u-ij. ] went over them with Mr UcnderNjl w n °P‘mon they were completed. I “aw Mr Weber on May 1, about getting a lull certificate. I taw him the day before »* ,J Mr Williams, Mr Henderson, and Mr amt, Da> its. We all went round the quartß - II was arranged to have a meeting the it day. We went to the quarries to l wt - al amount of dtlrU was there. Mr yUmerimd there was about 1200 yards at I<)r.v 1 < ) r . v t Point, and about 800 yards * , l Ui 7 l ’ B street quarry. Next day we ‘H at Mr Weber’s office. Mr Henderson, jv?tlf and Mr W T ebcr, My eon was not Mr *aid that lie had (■ |KJ , r | f° the Board that the works were JL ''* w *th the exception of some minor iia f* lo done. Mr Henderson dm W iat these were, so that they might bo <at/. ’ ai ? d ? Ir eber gave the final certiflrct/ro- 1 re eaße d the retention money. The money is 10 per cent on the prohis (yjr^ n tu ' received about W,.L >' retention money by Mr Wri^ SC -'. rt !? catc,WM al)out Mr mole f ,aid - ere Werc Holes on the eastern place JT 1 ”/ -°/ .^ ro *‘ tn cross tics to TOsuarne. rri e to be removed from the 'hat it!!' M 1 ? 1 was Then it was agreed ‘bled w Vlll , e *~ tllc subsidence—should be cr„.,' ti „: r ’ Ve , be 1 r a g«cd to replace the •"uoun nnf dedUCt the COBI from our fnrtbw It. r “ were 10 caU for tenders the quarries* 1 ° f th ° dihri * from a lagoon , • h tUbni wa » to bo put into relC'£ S!' 0 “ e laml - He ws, to ‘vrtiiicatc 0 f mcney and give us a Tuesday the etl °i D 0n t h® following were Sled ,° ftnl k for, and a condition was that the

work should be done to the satisfaction of Mr Weber. The holes were filled on the Monday jso 1 was informed. lam positive of that agreement. I have seen Mr Weber s letter in which he says there were other things in dispute. There were no other disputes. 1 may say ho suggested making a survey of the western embankment . I told him that no man could make such a survey, os t here was a good deal silted up. Hut that had nothing to do with tho giving of tho certificate. lam sorry to say I know tho certificate was not given. A loiter was sent by Mr Weber to Mr Henderson, at Wellington. It is dated May 13,1678. [Letter read. It stated that an arrangement had been made for a re-survey of tho western work, and a meeting between Mr Davies and Mr Weber was to lake place on May 3.] No arrangement for a re-survey was made. lam guile positive Mr Weber did not insist on settling tho whole business, extras included, before the certificate was given. I fully expected the certificate on Tuesday. Tho boat suited our leaving on Sunday, and wo, relying on Mr Weber’s assurance, left by it. I saw Mr Henderson’s reply to that, dated May 22. [Letter read. It reminded Mr Weber of tho three stipulations made by him, and averred that everything required by Mr Weber had been done. It denied any arrangement for another meeting, and declared a willingness to go into the adjustment of accounts as soon as the certificate was granted.) I saw a telegram purporting to come from Mr Kinross, Chairman of the Harbour Board, to Mr Henderson. Tho Harbour Board are in possession of the works, and have been since their completion. Mr Weber says they wore completed on April 16; wo say, in February. According to his showing, our maintenance finished on J one 16. Wo were advised to clear the debris as soon os possible. I have seen tho quarries since, and consider them fairly cleared. I saw them about eight or nine days ago. I know money has been mid for the clearing. I think £6OO or £7OO. [The telegram referred to was read. It was dated June 16, 1878, and stated that the Engineer reported that four broken ties were not replaced, and supposing the work were considered to be finished from the time the rubble was filled up, the plaintiffs were largely indebted on account of penalties and deductions, but that the Board would meet the contractor in a liberal spirit.) Ido not know particulars of accounts, except for stone work. The works were not completed on Jan. 11, the contract time, on account of the extra work. I was there from time to time, and know this of my own knowledge. Not receiving tests for driving piles was one cause of delay. A pile has to receive so many blows from a ram after its ceasing to enter the ground, and it is considered to be driven. The Engineer gives the test. Wo got a test eventually. 1 think in the month of June, 1877. I should say we waited ten months for the test. The piles would not have been broken if we hod the test. The specifications provided for one clamp, but we were obliged to put on extra clampe—five or six in some cases. They supplied the timber, and the quality of the timber was another cause of delay. A third cause was the extra work entailed through the alteration on the western bank. It took more time for filling up, and the stone was not so easily obtained. We had to go to a greater distance for additional stone. We had two storms ; one in October retarded the work.

Mr Macassey : The contract provided that the contractor should take upon himself the risk of storms.

Mr Stout: The point ic that the Engineer would not allow the piles to be braced, and therefore they were too weak. His Honor : The case has gone so for now as to allow me to say that it is one rather for arbitration than for a jury, except on the question of fraud. Mr Rees: We are prepared to take a verdict on such questions, and to leave the question of quantities to arbitration. His Honor*: Thefonly embarrassment is the question of fraud. One of the parties being a public body, makes it the more desirable that the case should be settled by arbitration. Mr Macassey : All these things bare been duly considered. The Board has been charged with fraud, and their Engineer has been similarly charged. All the expenses have now been incurred, and my clients have determined to abide by the decision of the e Court adjourned at 5.30 p.m. till 10 a.m. on Friday.