METALLING OF ROAD

Manawatu Standard, Volume L, Issue 140, 13 May 1930, Page 5

METALLING OF ROAD

DISPUTE OVER CONTRACT. SUPREME COURT CASE. Claiming £469 le 6d for alleged thort payment on road metal, or alternatively for breach of contract, Patrick Carr (Mr E. Gibbard) a Dannevirke contractor, proceeded against the Dnnnevirke County Council in the Palmerston North Supreme Court yesterday afternoon before His Honour the Chief Justice, Sir Michael Myers. The defendant council, which was represented by Mr T. H. G. Lloyd, of Dannevirke, counter-claimed for £94 as penalties for the contract being allegedly overdue, and, if this were not recoverable, £sl 2s for damages for delay in the completion of the work. PLAINTIFF’S CONTENTION. In. the statement of claim it was set out that in November, 1926, under written contract with the council, plaintiff had agreed to supply metal for and reform 105 chains on Mangahei Road (lower), Ngapaeruru, the council agreeing to pay 11s per cubic yard for the metal supplied. Under the contract and in pursuance of further -written instructions plaintiff supplied 228£ cubic yards of metal which were accepted by the defendant council, which paid for 1540 cubic yards, leaving 741£ cubic yards at 11s a yard, a total of £407 16s 6d. Plaintiff contended that in terms of tho contract he was to obtain the metal from a quarry at Ngapaeruru, but after he had commenced operations the defendant had directed him to obtain the metal from another quarry a further distance away. From this new quarry plaintiff supplied 1225 cubic yards of metal, and claimed Is per cubic yard for the extra distance the metal had to be carried, a total of £6l ss. The plaintiff sought judgment for £469 Is 6d, together with interest, or, alternatively, judgment for this sum as special damages for breach of contract in appropriating too much metal and in changing the quarry from which the metal was obtained. STATEMENT OF DEFENCE. The defendant council denied, through its counsel, the allegations in the first portion of the claim, contending that the plaintiff contracted with tho council to re-form 105 chains of road and to quarry, break and deliver limestone metal or 3 inch gauge tipped as directed at the rate of 14.667 cubic yards per chain at 11s per cubic yard. It was also denied that the plaintiff delivered, or that the council accepted 22S1£ cubic yards of metal, stating that the tally was only 1540 yards for which the contractor had been paid at the agreed rate of 11s per cubic yard, or £847 in all. The specifications of the contract, through an arithmetical error, described the quantity of metal to be delivered as 1470 cubic yards instead of 1540 yards. If tho plaintiff delivered more than 1540 yards, which was denied, such excess, if any, ivas, stated defendant, necessitated by the plaintiff prior to the delivery of the metal thereon having failed to re-form the 105 chains of road or some part of it in the manner set out in tho specifications, or to his having elected to re-form some part of the rdad with metal instead ot with earth. It was further submitted that, if any parts of the road were insufficiently or improperly re-formed by tho plaintiff, necessitating a greater depth of metal than was specified, or if the contractor chose to re-form any; part of tho road with metal instead of earth, such additional supply of metal was not asked for by tho defendant council, and, if it were, which was denied it was an extra to the contract, was not ordered, and the council was not liable. It was part of the bargain that the plaintiff should get the limestone from the quarry at Ngapaeruru. but, it was stated, the plaintiff had started to get the metal out of the top of the hill. After about 1000 yards had been secured, the council’s engineer directed plaintiff to take the metal from another place in the same hill as the stone ran out and was of inferior quality. However, it was claimed that plaintiff was not entitled to any extra payment.

COUNTER CLAIM. In a counter-claim, the defendant council contended that the whole of the work was to be completed to the satisfaction of the engineer within a period of 14 weeks from the date of acceptance of the tender subject to a penalty of £2 per week for over time and the tender was accepted on November 5, 1926, and the work should have been completed on February 11, 1927. The contractor started work on November 26 and did not finish the work until January 11, 1928, or 47 weeks and two days after the date fixed by the contract. It was also contended that the counsil had, under the contract, to provide and pay a spreader, who had power to reject any loads not of satisfactory quality, this man to receive 14s per day. Owing to the delay in the performance of the contract the man was paid for 73 extra days, a total of £sl 2s. The counter-claim was therefore for penalties £94 (47 weeks at £2), or, alternatively, should the penalties be unenforceable, £sl 2s for damages for delay' EVIDENCE HEARD. Plaintiff gave lengthy evidence and testimony was also given by William Henry Gilmour, civil engineer, of Palmerston North. Albert Lovell, carrier, of Palmerston North, stated that lie worked for plaintiff on the contract. Four horses had to be put on because of the steepness of the road. Charles Richards, labourer, of Dannevirke, stated that he had acted as spreader on behalf of the council. He kept tallies of the metal, which were produced. There were 1187 yards plus 605 loads, making an approximate total of 2094 yards. Witness had never measured the drays, which plaintilf had informed him were of one and a-half yards’ capacity. He had rejected some loads entirely, and parts of others. He identified certain figures in the tallybook as liis, but disclaimed knowledge of alterations which corresponded with other returns submitted. Ho did not know that any alterations in the records had been made until after the job was finished. The dravs were not always fully loaded when they arrived, but had just fair loads. The metal road put in by plaintiff had a crown in the centre. This concluded the case for plaintiff. CASE FOR DEFENDANT.

Laurence Moorhouse, engineer for the W’eber County Council and formerly in the employ of the Public Works Department for ten years, stated that he knew the road metalled by Carr. The lengths and the condemned metal were not disputed. He tested the metal in two places for depth. It seemed to him that Carr put up no worthwhile argument in support of his case. Plaintiff was of the opinion that he had put on much more metal than specified. At one place, in the centre, it was two and a-half inches over the correct depth, and at the sides slightly under, due probably to shrinkage. The use of the grader could have made a difference in the levels. Plaintiff stated in effect that he thought the camber

was reasonably in accord with the specifications. The road could have had a concave surface before it was metalled. There should have been specific reference to the camber in the specifications. Any difficulties about the depth of metal could havo been overcome by the creation of a camber in the formation 'work. Whether stone was rapped in the quarry or brought out in spawls was a matter for the specifications. At 10 p.m. the proceedings were adjourned until 10 a.m. to-day.