DISTRICT COURT.

Nelson Evening Mail, Volume XXIV, Issue 115, 16 May 1890, Page 2

DISTRICT COURT.

(Before His Honor Judge Broad.) [In Bankruptcy.]

On the application of Mr Harley the dis charge of John Ogilvie was granted.

Mr Hurley appeared for the discharge of Benjamin Crisp, jun. — This had been post, poned from the last sitting 1 , Hi-5 Honour intimating that he th'.ught he should make some offer. — Mr Ilarley said that the bank rupt had no money, but was willing to offer 5s in the .£. to be paH within a yar, his discharge to be deferred until payment was made. — His Honour thought this a reason able offer, and made an order accordingly.

Mr Hiirley applied for the discharge of James Edward Oresswell. — Order granted on payment of Assignee's coats.

Mr Kingdon applied for the discharge of Claude Ball. — Hia Honour said that the bankrupt, who filed in 1887, had practically susp nded his own discharge for two years by not applying for it. — Order granted,

Mr Kingdon applied for the discharge of Henry Webley. — His tlonour said this seemed to have been a case of drifting slowly to leeward, the butcher and the grocer being the principal sufferers. — The Assignee said there was no evidence of extravagance. — Order granted.

Mr Pitt niuvcd for an order to close the bankruptcy of William Black and to appoint a (iay for his discharge.

The following affidavit was made by Mr Pitt: — I am the solicitor for the above named bankrupt who filed his petition iv bankruptcy on the loth February, 1887. Several dividends have beea declared on the whole amounting altogether to 3s 5d in the pound, The first meeting of creditors was held on the 22nd February, 1887, and it waa adjourned until the 22nd March, when the bankrupt was examined at groat leugth as to his affairs, and a resolution was passed by the creditors to the effect that the debtur hud been guilty of gross extravagance iv living, and that his discharge should not be granted until his e3tate paid a dividend of 15* in the pound. On the 1-tth May I was inf rmed by the Assignee that ho had realised all the assets in the estate, but he at the same time informed me that he declined to report to the Court that the whole of the property of the bankrupt had been realised on account of tho resolution passed by the creditors. Early in April I saw Mr Black at Christchurch when ho informed me that he h id not been able to obtain any paid employment since his bankruptcy, the fact of his being an undischarged bankrupt being the principal cause of his being unsuccessful in obtaining any position.

Mr Pitt said that there had been an impression that the bankrupt would be a beneficiary under the will of his father who was a wealthy man living 1 in Melbourne, but there was no hope whatever of this, as Mr Black had told him that his father had altered his will, declaring that the creditors should not got any of the money. Mr Black had been in receipt of a small legacy of some £125, which he had at once hauded over to the Assignee.

ilia Honor said Uiat lie could not mike an order closing the bankruptcy, but there was no reason, why the bankrupt should not apply for hia discharge, when he could be examined by any of the creditors who desired to do so. The application for discharge was tb.6n set down for the June Bitting, [Civil Sittings.] Fitzwilliam and others v. Arthur Scaife Deputy Official Assignee. — Thit was a claim for £143 for work and labour done iv conneotion with St. John's Church. Mr Pitt appeared for the plaintiffs and Mr Fell for the defendant. Mr Pitt, in opening, stated that tenders were invited for building St. John's Church. Those sent in were too high, and Mr Andrew Brown was asked to alter his and to Bay what he would do the work for with certain deductions, among them being the main gallery and stairs. For this he said he would make an allowance of £157. Brown was then waited upon by the Trustees and a«ked to be more definite in his statement. He then stated that his tender stood, omitting all the deductions asked for by the Trustees, among which was the gallery, at £1(582. This was on the 17th July. On the following day Mr Buttle asked him to go to Mr Bethwaite's, where he waa told that his tender had been accepted. He asked which tender, and was told that one omittiug all the deductions. He then signed the plans and specifications as beiug those referred to in his tender of July 17. Mr Bethwaite then told Brown he would be pleased to hear that he was to have the contract for the gallery as well at £157. This was on tha 18th July, | after the oontract for the building for £1682 j had been signed. Brown became bankrupt, and Mr Scaife then let the contract to the plaintiffs who did not undertake to do the gallery.

Andrew Brown : I tendered on the 17th July for building the church with certain omissions. Messrs Bethwaite and Buttle came to me at 10 o'clock at night and asked what my tender really meant, when I put it down in writing at £1682, making all the deductions they asked for. Next morning Mr Buttle came and asked me to go to Mr Bethwaite's office. There I met Mr Oliver and Mr Bethwaite. Mr Bethwaite informed me that my tender was acoepted. I asked which, and he told me the one with all the omissions allowed for. I then signed the specifications and plans produced. Previous to signing nothing was said about the main gallery, but afterwards Mi; Beth-

waito said to tbe others " I suppose therfl will be no harm in telling him now, " to whioh they said "No, " and ho then said to me, " You will be pleased to hear that we are Roing to aocept your offer for the gallery. " He added that they would write to ma to that effeot, whioh they did, the letter being to tbe effect that the BuildiDg Committee aocepted my tender for building tbe gallery for £157. I signed nothing in eonneotion with this. I wojVed at tho Churoh until November, when Ifi cd. I saw the Assignee's advertisement calling for tenders, and the tender of Fitzwiliiam. I hive had a conversation with Mr Scaifa about the church, and be told me he thought the men had made a mistake in claiming for the gallery, to whioh I replied ihtit I thought not, aa 1 had never eigned for it.

Croas examined : I wrote two leiters on the 17th July, owing to the first one not being understood by the Trustees, and the two were to be read together, the seoond being explanatory of the first. The firßt I thought plaiQ enough. The seoond is the Bame aa first with the deduotiona carried out, leaving the balance at £1682. At the meeting at Mr Bethwaite's office the plans were signed wi hont anything but a verbal statement as to the omissions. I <»m quite clear that this was before anything was said about my building the gal« levy. Before I got into trouble with my creditors J waited to sub-let the contraoc to Fiizwilliam. Had they taken it from ma they would have built the gallery I told Fitzwilliam on tbe day I signed the plans that I was going tfl have the gallery to bui das well. I knew at the time of signing that the gallery wsb not to be built.

Ec-examined : If I had sub let my contract they would not have been obliged to build the gallery, that being an extra. His Honor : An extra being agreed to becomes a part of the contract.

Mr Pitt: This is an entirely different matter, and quite apart from the original contract.

His Honor : Have you any idea why they sprang this pleasant surprise on you about the gallery at Mr Bethwaite's office ? Witness : No ; I never could understand

Arthur Fitzwilliam : I tendered in reply to Mr Scaife'a advertisement. Before doing so I read the specifications. In doing bo I noticed that the gallery, gpire, &c, were omitted, and I tendered accordingly. His Honor : I don't see that in the specification. There is simply a letter attached to the specification asking Brown what would be the price with certain of the items named in the specification omitted. Witness : Our tender was accepted and we went on with the work, Mr Bethwaite being the Inspector. One day when we were laying the floor he said we must look out and leave room for the piera of the gallery. We were proceeding with the work without making any provision for the gallery. I consulted with the other two, and as we had never contemplated building the gallery we wrote to Mr Scaife telling him we should charge it as an extra. He treated it as a joke, and said he would show me where Brown had signed for the gallery. I told him I did not think so. Then Mr Buttle came in and showed me the letter whioh he had written to Brown. Cross-examined : I had been Mr Brown's foreman for two years. He had told me he was going to build the gallery. Before he filed he asked me if I would take the whole job off his hands. When I tendered I had no idea that I had to build the gallery. I have never said to anyone that I knew I had to build the gallery, and was going to have a try on. I never anticipated the gallery at all. If the specifications do not omit the gallery we made a mistake. Nothing had occurred to make me believe the gallery was to be omitted except what I believed there was in the specifications. I never had a word about the gallery from anyone. I never had any conversation with Brown about our putting in a tender. I never spoke to him, or he to me, about the gallery. My partners and I had no conversation about the gallery at all, or spire, or any other deductions before we tendered. Mr Scott and Mr Robertson had made estimates previously, and we knew what they were. It did not strike me as curious that the gallery was suddenly omitted. I have con* suited no other solicitor but Mr Pitt on this matter. We have had Mr Harley'a opinion on behalf of the bondsmen. I read the letter as meaning that the gallery was to be omitted.

His Honour : The letter simply asked for separate prices, and says nothing about any items being omitted.

Witness : I knew that Brown first tendered for the whole, and then that the Trustees had called for fresh tenders making certain deductions.

Re-examined : Our contract; was £1089, the difference between that and the amount to come to Brown being a little more than, the price of the gal]ery. Mr Fell: Just about double.

Thomas Doidge (one of the plaintiffs) corroborated the evidence of the former witness.

Cro=s-examined : "We read the speoifloations together. I read the letter attached to them as meaning that the gallery .was to be omitted.

J. Stringer (one of the plaintiffs) also said that he did not understand that the gallery was to be built.

A. F. T. Somerville, architect : I havo inspected all the specifications and documents connected with this oontract.

On being asked his opinion of the mean-, ing of the agreement signed by tne plaintiffs, Mr Fell objected on the ground that the witness, however competent to give opinion on architectural matters, could not state what was the meaning of a certain investment.

Mr Pitt said that Mr Somerville waa acquainted with the whole circumstances of the case and having seen all the documents might say whether it was clear that the gallery was to be included in the oontiaot.

Ilia Honor : I don't think that Mr Somorvile can be of any use in this oaae, as it ia entirely for the Court, in the light of tha evidence before it, to decide what theoon, fcraot means. I think it ia a purely legal matter whioh the witnesß is not competent to decide.

This ended the case for the plaintiffs. Mr Fell said that the double tender for the church and gallery was a para notion on the part of Brown. Tenders were invited, and all were too high, and so the trustees cast about how they could reduce the work to be done, such as omitting the spire, or gallery, or altering the foundations. Then tiiey wrote to the tenderers asking what suras could be taken off for each one of these items. Brown replied on the 17th July stating how much the altered £ounda« tious would reduce the contract, and so on through all the items, and then gave the total with all thsse omissions as £1682. Mr Brown then met Messrs Bethwaite, Buttle and Oliver, and Mr Bethwaite told him at once he wa3 to build the church for £1082 and the gallery for £157, and he then signed the specifications, knowing that he he had to build the gallery. It was then pointed out to Brown that he h°rl signed a oontraot to build the whole thing, spire and all. This was not the intention, and it was arranged forthwith that, he should be written to stating what he wns to do, namely, to build the church including the gallery, Fitzwilliam knew perfectly well that Brown had to build the gallery. The contraot fell into the Assignee's hands on Brown becoming bankrupt, and he procured estimates for completing it, and received one from JUt Scott and one from Mr Robertson. Of the contents of these the plaintiffs were quite aware. Then Mr Scaife called for tenders to complete the contract, and Fitzwilliam signed the plan on which the gallery was included, and with nothing whatever to show that it was to be excluded. He (Mr Fell) could not but believe that Fitzwilliam, in signing the contraot, was perfectly well aware that he had to build the gallery, and continued to believe it until he was put up to calling it in question. There had been too much good faith shown at first, whea Brown actually signed the contract for building the spire, and everything else connected with the church, but that had been put right by Mr Buttle'a letter. Since then, he was not quite sure about the amount of good faith displayed in connection with the second contraot. (Lqft Sitting),