Supreme Court

Manawatu Standard, Volume XLI, Issue 8185, 11 September 1906, Page 5

Supreme Court

The civil sessions of the Supreme Court were resumed this , morning before the Chief Justice. CLAIM FOR POSSESSION. J. B. Beale (Mr Moore; v. H. Sheerin (Mr Fitzherbert), claim for possession and £25 rent. Since the issue of the summons it was admitted that a sum of £18 had been paid on account of rent. After hearing counsel his Honor gave judgment for the balance of rent due, £1 Bi, solicitor's fee 21s and all disburse ments. MILVERTON v. KAIRANGA COUNTY COUNCIL. Mr Loughnan, acting on behalf. of the Kairanga County Council, applied for a new trial of the above case, heard at the last sittings of the Court in Palmerston. .

Mr Cooper appeared on behalf of Milverton and Son to oppose. Mr Loughryyj said the motion for a new trial was on one ground only, Viz., that the finding of the -jury that the Council was not justified in taking the contract out of the contractor's hands was against the weight of evidence. In its answer to one of the two issues submitted to them the jury had found that the Council acted wrongfully m taking the contract from Messrs Milverton and Sons. Counsel detailed the facts of the case, which dealt with the work done by Messrs Milverton and Sons on a contract with the County Council to metal the Ngawhakarau road. Counsel reviewed the whole of the evidence adduced at the prior hearing with regard to delivery of metal on the contract up to the time it was determined by the Council. Plaintiffs were informed, counsel said, on numerous occasions by letter that the progress of the contract was utterly unsatisfactory, and they were also told they must adopt other means than those employed of coping with the work, otherwise it would have to be taken out of their hands. Eventually a standard amount of metal to be delivered per day on the contract was determined upon by the Council —90 yards per day ; and, almost without exception, it was alleged the contractors failed to comply with the standard amount. The adverse finding of the jury indicated that they thought the standard too high, but that the contractors did not think so was shown by a letter to the Council stating they had put on teams of horses and hoped to put out the 90 yards per day decided upon by the Council, and'as a matter of l'act on the first day 97 yards were carted and the trucks delivered 63 yards. Counsel considered it incredible that any reason able person, with a fair knowledge ot the facts, could say that the Council was not entitled to take the work out of the contractor's hands. There was no contention that the 90 yards per day was not reasonable. Milverton himselt accepted, it, and had delivered an average of over 70 yards per day. The great argument with opposing counsel at the hearing of the case was not that reasonable progress had been made with the contract, but that Milverton was taking such- steps that would, have enabled him to make reasonable progress. It was slated that on the very day after the contract was concluded more ..teams would have "been put on to enable the standard delivery to be kept up. That was in itself, counsel submitted, an admission that the progress desired by the Council was being made. Counsel contended that the decision of the jury could have only been arrived at from an opinion that ii> was unfair to have terminated the contract at the time and under the particular circumstances, but he submitted that that was not a view of the case that the jury should have given weight to, or an argument they should have adopted. He cuntended- there was no set of circumstances that justified the jury in saying the Council was not justified in taking the contract from-the contractors unless it was that of hard liues, that they would have done the work if they had been given time, and this, counsel reiterated, the jury had nothing to do with. In reply, Mr Cooper, after quoting the point at issue, cited numerous authorities in support. He ridded that the jury had heard the whole of the evidence of reasonable men and had the whole of the facts before thetn and it was not possible under the circumstances that they could arrive at any other decision than they did. Counsel pointed out the different arrangements made by the plaintiffs to put on teams in the endeavour to keep up with the work and it was also pointed out that one of the conditions of the contract was that no carting was to be done, in wet weather. Counsel quoted from the weather report put in evidence at the first hearing of the showing the amount of wet weather to bo contended with and the effect it had upon the output. The amounts carried after the wet weather had ceased were detailed, and counsel said that from the quantity put out there was no doubt that had the extra teams been put on as arranged for by "Milverton the standard delivery would have been exceeded. It was admitted that the contracts were required to be finished before winter, and Milverton had said that he could have had all the work done by March 31st. Counsel contended it was an arbitrary act on the part of the Council to fix a standard delivery, and said that it was only reasonable that the jury, seeing how close the output reached the standard, concluded that Milverton was using all reasonable despatch He submitted that the whole question was whether twelve reasonable men were justified in forming the opinion they did that Milverton was using all expedition to finish the work. His Honor said he would take time in considering the matter. He wanted to see the evidence before he expressed an opinion upon the question.