SUPREME COURT.

Lyttelton Times, Volume LI, Issue 5588, 22 January 1879, Page 6

SUPREME COURT.

CIVIL SESSIONS. Tuesday, Jan. 21. (Before His Honor Mr Justice Johnston, and a Special J ary.) ■ HENDERSON V. THE NAPIER HABBOUB BOARD. The trial of this case was resumed at 10 a.m. The Attorney-General with him Mr Roes for theplaintiff. Mr Macassey with him i Mr G. Harper for the defendants. , 0 examination of Charles Herman Weber I, bv.Mr Maeasaey was resumed : I produce a ’ & . B “ ow, . n g the error of the old surrey at 1 "apierj it was. published by the Chief i Draughtsman. It u a reduced copy of the sun-o/ mopin the Public Office at Napier. The map I now produce by Mr Boohford shows the correction of the error, or what the i surrey ought to hare been. This plan was' ; published in Napier by Mr Boohford when i the works wow half completed about nine ij months ago.- Mr Boohford holds no official" r J capacity} there is,neither scale nor true i A meridian shown. » i His Honor: I hardly see the necessity of ' t “ ls * * laTe got it that the surrey was , wrong. J I Witness to- Mr Macassey; The sections ' ®hown pn the plan are acre sections, and I i distances without*,a scale. I P^ an correctly, shows the works when half finished. A portion of the boulder bank whfch was above , aid» when original survey was made, is now under water, having

gradually receded since 1876. Th« J about 1000 feet under water which was tor f " bo used, they have never been proved. v Witness : I am aware that in consequence of these alterations, the contractors saidthey u had to drive through a reef; but I say no reef exists within 50 feet of the surface. No claim has been sept in by the J since Jan. 23. Before the. sand hag.were v put down Mr Mackay was u charge of the fl work. He said " What are wo to do to stop v the scour?" I suggested the obtaining of t large rubble, and the employment of small punts to bring it to the place. He «>m- J plained of the expense. I said You have t only to thank yourself for it, for if you had I provided 1000 yards of spare rubble, accord- t fas to the contract, you might stop it m a c few hours; but now the punt is out of order, I and you have no spare rubble in hand. 1 1 believe Mackay said that he would try and J provide some sand bags to fill up with. I * offered him two large timber boxes to fill up ] with shingle, so as to help to atop the scour. t The first section of the work was to be com- J plotedonJan.il, 1877. At that time about 800 « cubic yards had been placed, instead of the whole section being finished. In March the works had been earned out 930 feet, instead J of 1000 feet. The scour then took place. If i the works had then been completed, tney < would have been less likely to be injured from the scour. If the groin had been . finished, it would have strengthened the em- 1 bankment. On April 2, 1877, I told { Mr Davies that 1 could allow progress payments in conformity for the quantities required for each portion of the work. I told < him he had been paid for 1000 cubic yards i more than he had placed on the east, whilst he would only use about 400 yards on the western side. In fact, on one side he lost by i the scour, and on the other side Nature was doing his work for him. I made a deduction on Davies’ claim of 400 cubic yards. During i the construction of’ the mole the work was < done in a rough way, and the real cubic contents of the section could not be ascertained. I therefore made an allowance of two cubic yards per truck. Afterwards, I noticed that the trucks were not being sufficiently filled, and as I then was able to measure the work* correctly, I found I was over-paying the contractor/ As soon as I found this I made tire necessary deductions. The vouchers which have been produced, will, show the claims made by Davies, and the deductions I have made. The western mole has been finished to' my full satisfaction Fur ballasting lire line of rails small road metal and fine sand were used ; twice or thrice tin's was washed away by the sea. That light material was put into the trucks—l did not pay for it. Oa one occasion 6 piles, and on another 30, were carried away. When the 6 piles were carried away, the pile work was earned out far in advance of the rubble work, and I had pointed this out to Davies, jun., previously, and told him that the first gale would carry them away. The first time the piles were 120 feet in advance, and the second time 210 ft. in advance of the rabble work. This shows the state of the timber and rabble work. On the first storm we lost six piles, two links, and two cross-tics on tire eastern side. On the second storm we lost 30 piles. The carrying out of the timber work so far in advance of the rubble werk was not done by my orders. My letters to the contractor and published reports will show that it could not have been so. (Letter, July 6, read, and Davies’ reply thereto.) I never directed the piles to be carried out so far in advance of the bracing. To His Honor: I am not aware that my Inspector interfered unduly with the driving of the piles. Their duty was to see that the piles were properly shod, and driven to a proper depth. I was not constantly on the ground myself. To Mr Macassey: On Sept. 18 I again wrote of the unsatisfactory state of the piles. The letter of the contractor of Oct. 22 is wrong, attributing, as it does, to my directions being carried out (he unsatisfactory state of the works. I told Mr Davies that whatever he might do with the inner portion of the works, 1 insisted on the outer portion being carried out according to contract. Davies wanted to save himself trouble, and I insisted on his going on according to the plan. I never told the contractor to drive sheeting before carrying out the piles. I told him that the modus operandi was nothing to me so long as the work was done according to the plan and specifications. In my opinion the great distance of the rabble work from the piles was the cause of the piles being carried away. There is no test mentioned in the contract; it is, however, generally supplied by the Engineer to his Inspectors. 1 sent to the contractor, as a matter of great courtesy, a copy of the test I had given my Inspectors. I furnished that as soon as I was asked for it. The test set forth the nature of the wood and its conditions, the nature of the bottom, the distance of the piles, the probability of scour or gales. On June 1, Mr Davies sent mo a letter requesting to be furnished with my instructions re piles and pile-driving. I replied to that on the 2nd, sending a copy of my instructions and test. Before I received that letter Mr Davies hod not applied to me for a copy of my instructions. At that time the shingle followed us veiy closely on the shore line. I produce a plan showing the actual depth to which each pile was driven. It was made from the report of my inspectors. A large majority of the piles were sawn off, but I made no deduction in the progress payments on that account. He was paid the full rate for each pile. I had nothing to do with providing the necessary apparatus and gear for driving the piles. Mr Davies complained to me of the quality of the timber supplied by the Board, but there was no specification that the timber should be seasoned. The contractor was fully aware that the timber was growing in the bush when he signed the contract. The supply was of the very best quality, and ho had generally a six months’ supply on hand. A certain contraction has taken place, but not much. The timber has been thrice tarred. I do not think that all the sap would be oat of a stick of totara under three or four years, so I do not believe that the timber was properly seasoned. I condemned one-third of the timber brought on the ground by the contractors. On Jan. 1,1877, we had 411 piles on the ground, while only 70 had been used, so that on this item we had fully si* months’ supply on hand. After the tost was supplied much greater progress was made m pile - driving than before. It is a well-established fact among all piledrivers that the time employed to drive a pile between 20 or 30 feet will be equal to driving two piles 20 feet: in other wnn)« nfur mn

* ~ i •“ v*»*v* nv«uO| uivvi JUU get to a depth of 20 feet it takes a longer time to drive a pile than before. There were 760 mam piles, and about 2400 sheeting piles m the whole structure. The shingle followed much more slowly after the test was supplied, because it had to extend muohfurther. There was no reason assigned to me for the continuance of the pile work so far in advance of the rubbie work. Assuming the diagonals to be fairly checked into the piles, thespikewaa to have been placed about nine inches from the top. To the Foreman; I was aware that the diagonals were not checked into the piles, but I passed the work notwithstanding that. I yielded for peace and quietness sake. . To Macassey: I did not place so much importance on the checking, and therefore I did not insist on it. I wrote to Mr Davies, objecting irregularity of the piling. I wrote on Sept. 5, 1877. Ijilso complained constantly, verbally. Igenorally got pS m a yery humblefway»Tthat things should be flt£ d ‘ tbi a t f U l°'- thia t 0 the not lltting, through being ,■ prepared in some' 80,110 instances they were not sufficiently long. This is one a great many others'' The °«tern mark Bj f U^RA oUt l° £ l hne ,- - Thi# WIU lontl S Tf M°n d B h 11160 a serious diffld haro-as they will have-# Dd - he ..r further, if they keep SSL 1 "" 16 Wld moreose thet scour at the pierhead, the current diverted, and the work

scad out of shape. If I th« ntinued ia a lino with the fonner hne. it mid be done at a reiy heavy expenM, and o Beard might come to £ n ® f * 1 5f r , ice a value upon the wor * d “®’ T inten d • a compelled to issue a certificate, I intena deduct £IOOO for the irregularity in driving T?the Foreman: I did not »top the work hen the pile* were complained of, because I m extremely anxioua to hare the worlc liehed. I thought it a lesser evil to let the i ork remain than to insist on the drawing of i Macaaaey: The union •erwrijj * nr uaeful article when uaed moderately, i it when it ia uaed in drawing m piles too , apart, it will cause them to recoO. Imndid to take all these circumstances into maideration when the contract was com* Leted and at the final settlement, and 1 rote to the contractor to that effect. (Letter »d.) A plan which I expressed mr disoproval of was adopted in driving the sheet |£s generally, but Dane* would drive them >in spite of me. I and Sir John Goode and Ir Carruthera differed from Mr Danee* names when Donnell and Garrett examined lem were exactly in the same position at iey we re at the end of the contract. No md slip could take place at the quarries, either has anyone been working them ince Henderson s men loft. On Jan. 15,1877, wrote to the contractor to push on the work, f the stone embankment of the western wall ad been completed in January there would are been no scour towards the latter end of larch. This was not completed until Aprd or 2. Section B, on the eastern side, instead f being completed in July, 1877, was not inished until February, 1878, and the Board ras much injured thereby. If the work had een completed in July, 15,000 yards of hingle, which were carried into the channel iy a storm, would not hare been so carried in. U means of that deposit navigation was topped for three or four months. Since then , portion of the shingle had been carried out »y the tides, and the large boulders had ormed a bank which would cost a large sum 0 remove and restore the channel to it* iriginal shape. It would cost £IO,OOO to 312,000 to employ divers. Mr Rees: Divers to pick up the shingle ? Witness: Diver* to pick up the large (tones, sir. It would cost a large sum to clear I .lie channel.. . A storm which occurred on Jet. 3 brought on another visitation of shingle >ut not to such an extent. I put on a tide ,auge in February. 1 consider that the works *ere injured to the extent of £looo by the ;ies ana braces not being properly put together. 1 put m evidence this morning a plan >f Napier, prepared by Mr Cull 13 years ago. L have found since that plan was prepared by my assistant, Mr Saunders, a short time ago, it was corrected without my knowledge. I put it in as an erroneous plan, whereas it is a correct plan. Mr Henderson and Mr Davies strived in Napier on Majr 1, and I met them then by appointment, we had gone over the work the day previously. On the last day of April, Henderson or Davies sent to me desiring me to meet them on the works that day. We met on the works with Mr Davies, jonr., and I think Mr Williams, bat £am not sure. We went to the eastern work; Henderson and I walked out of ear shot of the rest of the party. 1 pointed out to Mr Henderson the piles out of line, and all the rest of the bad work on the eastern aide. I said, —“ lam most anxious indeed to shut my eyes to all those defects, provided we can come to an amicable final settlement.” Ha said, —“They are done roughly, but it does not affect you." We then went to the western side with the rest of the party, but Henderson and myself keeping together. I pointed out to him piles out of line, diagonals not abutting. 1 said, — ‘lt is bad enough, but I’ll take it as it is. I won’t say any more about it. The embankment is objectionable.” The whole of the party went in a cab to Battery Point Quarry. We only saw the debris at the bottom, not in the two upper terraces, as Mr Henderson being in bad health, could not go up. I said in reply to Mr Henderson, —“I can see at least 1200yds of debris here.” They made no remark. All the debris was caused by quarrying for the Harbour Works. The quarries were handed over to the contractors free of everything. We then proceeded to the Barn’s Quarry, and 1 saw at the bottom some debris. 1 said, —“ I see there about 400yds, and God knows —I mean goodness—how much more.” We then drove into town, and arranged to meet at my office at 11 o’clock the next day. We met then, viz., Messrs Henderson and Davies, senr., and I expressed to them my great desire to see the matter settled in an amicable manner. 1 told them, as it was impossible to come to an amicable settlement without free discussion, it must be understood that all things said must be regarded as being without prejudice until all things were agreed upon. This they both agreed upon. Henderson and I md the talking business and Davies took notes. On the settlement of another contract a similar course had been taken. In ten minutes after they left the office I made notes in my book. Henderson said: “Will it not suit your purpose if you deduct money value for the piles and do the work yourself.” I said: “ Perfectly well.” After settling some miuox matters then came the question of the quarries. Henderson said; “ I want to sell | our plant. I shall be perfectly satisfied if you get substantial men to clear the quarries within two or three months ; in the mean--1 time we must hold sufficient money in hand Ito cover this.” We agreed to that. Then 1 both Davies and Henderson wanted to go away. I said: “ Stop a bit. You go to the Chief Surveyor and ask him for any of the licensed surveyors to take sections of the western wall, extending at least half s chain outside of the base of the slope.’ 1 Mr Henderson said.- “ I believe that to be she best way of settling it.” Mi Davies said: “We have our own quantities j the sections you take now must be erroneous j I will not agree to it.” This was on the Wednesday. I said : “ Now, gentlemen, I’ll meet you again ou Friday.” They nerei came. It is utterly untrue that I promised Henderson that he should have his final certificate on the following Tuesday. I have never issued my certificate; but if 1 were compelled to do so 1 should make deductions for the unsatisfactory work. If the Board had instructed me to give a certificate 1 would have sent in my resignation. Four members of the Board have asked me if I could see my way clear to give a certificate. Than has been no collusion between myself and the Board. If I had known that Mr Maokay was not coming here 1 would have taken step* tc have got his evidence. Mr Rees: I can tell you that Mr Maokay has told persons that he was perfectly afraid to come here, because of offending persons oi influence. Grose-examined.- Mr Maokay is working under the County Board. Messrs Sutton, Ormond, and Kinross, who are members ol the County Board, we also members of lh< Harbour Board, I admit that the map os which (he contract was founded is incorrect The plan now produced is correct. The peg) cm the ground are not in the same position at they appear in this map. The green line is is reality the proper length of 1000 ft. My plac fits a* near as possible to Mr Boehford’s plan 1 believed that my inspector, Mr Bell, had informed the contractor of the alteration in thi plan, and therefore 1 did not do ao myself The difference shown on the plans is iOfL but in reality it is onlyv24ft I admit that there ii an error in the plan, but I'll stand by it, as 1 am responsible for it. My assistant. Mi Saunders, made the plan, but lam responsible for it. The contractors sent in<theii Claim onjan. 23* theT wenton with thefwerl in February and»Maroh A bqtJtheyrsent f m^o claims. I made no inspectors did. Before*(he contracts were taken 1 stated the quantities required at the maximum. 3 did this to wam’contractors to provide enough. The eastern groinU outlol the lino; the greatest amount of deflections* 3ft 6in. The/ contractors .-marked out th« line. I saw that it was the straight t 0 d ¥ r Aulo y> eve™ of it. The contractor* told me that in defiance of mo they would c&m on the work as they liked. Mr Davies. told me that. I made n f that to the Board because 1,-felt mwtune «>• coming. I felt that the Board coufe not heh me j tleyrould only stop the work

contractor*. 1 did &ot want it ,nd get all over the world that the harb JU > ,£ yapier w»» completely ruined. I think I made mention in my report, t he Board of the enormous quantity ot rhich bad come into the rirer ? “ " h Mr Bees : There is nothing in any rfw mor to October, of it. ' " Witness: I did report to the Boar 1 a i y , hi* matter. (Keport produced.) I lw J] our or fire report* respecting it. N 0 t w ,n t itanding the deposits of shingle in the r ii> r he channel ha* steadily increased in dep.y Che quarries belong to the Harbour Board Mo men hare been employed in either ’ lince the contractor* left. No men have \ J l' nnplcryed in Bum’s quarry since Homier,w, men left. That quarry is dirided into tw 0 parte by a road. We hare nerer interfere with the quarry where the contractor’, had been. A quantity of the timber „ a , iondemned by me and afterward* u*ed ; oo n 70 jalee were thus treated, because V,, Board had passed a resolution authorising m , to charge the piles. After discovering error in the surrey in March, 1877,1 w „ compelled to sharpen the curve, *o a, to the distance of 400 ft. That sharpening of the curve was not, in my opinion, the cause of the scour. I alwsy* gave a test and most p, r ". ticular instructions to my inspectors. I not order, on Oct, 11, 1876, a heavier monkey, hating a fall of 16ft, to he u>ed The checking was not shown on the plan 'for the shingle work, but was for all the doable work. Ob, I see that they are cot all checked on the plan. I nerer complained about the checking until I got into the witness-box. If the contractors had agreed to my condition, I would hare giren them a conditional certiScate. 1 made a statement to the Coarl that the main work was completed, but cot in a satisfactory manner, I advised the Board’, solicitor to the same effect. I never made an arrangement with Mr Davies, jam, that the four cross-ties were to be bolted and tarred. [ never passed them, and they were never paid for. I consider that the wort wa* practically completed about the end of May. The Board has had possession of the work since June 10 for the purpose of strengthening the ends and clearing some boulders. About two months ago I made upa statement of the sums to be deducted from the contractor’s receipts. The surplus rubble remaining after the completion of the work was the property of the contractors. I have made a progress payment of 4s 61 a yard on it. The spare rubble was to be made in case of accidents during the construction. Probably the Board has a lien upon that rubble of 4s 6d a yard and something. The / greatest depth I found on the boulder W.y at low water was 2ft 6in. I believe, and am quite ready to admit, that the sounding at section A showed 21ft, Specifications provide for all slight omissions and alterations in the plans. The statement made by Mr Davies and Mr Graham relative to the alteration of the line* are absolutely incorrect. Be-examined by Mr Macassey; The amount of admitted claim bv the contractors is £30,872, of this £28,822 15s 44 has been paid, and £312 13s 4d is to be deducted, leaving a balance due to the contractors of £1737 3s 4d. Francis Emanuel Saunders, examined by Mr G. Harper, and who had been employed as an Inspector, gave evidence as to the laying out of the works and their execution. The men employed persisted in using small rubble. . Henry Henceuf, another of the Inspectors employed on the works, gave similar testimony. Witness never interfered in 'any way with the manner in which the piles were driven. George Wlndus, an Inspector on the eastern side, stated that he never interfered with the manner In which the piles were driven. This closed defendant’s case. The Court adjourned until 10 o’clock this morning.