DISTRICT COURT.

Nelson Evening Mail, Volume XXIV, Issue 116, 17 May 1890, Page 2

DISTRICT COURT.

(Before His Honor Judge Broad.) [Civil Sittings]. FHzwilliam, JDoidge and Stringer v. Scaife, Official Assignee, {Concluded) William Bethwaite : I acted as architect under Mr Dugleby in connection with the erection of the Wesleyan Church, to the Trust Board of which I was Secretary and Treasurer. (Witness here related all the circumstances which followed the receipt of the first tenders, which were all too high). On the 18&h July Brown attended at my office, when Messrs Oliver and Battle were present. I toid Brown he was the successful one. He replied, "I may just as well tell you I allowed for the spire twice, but I'm going to sign all the same." I told him that was his look out, and that the Trustees would accept his tender including the gallery. All the documents were then signed and I told him he had signed for the whole lot, and that it would be well for his own protection that he should get a note saying that out of the items for which separate values had been asked he was only to construct the gallery. I am quite clear when his tender was accepted it was for the gallery as well. In fact, had we let this separately we wouH have got the work done moro cheaply, as Robertson s tender for the gallery was £30 lower than his. When the plaintiffs were laying the floor I called their attention to the fact that they were not allowing for the gailery foundation. They *poke together, and the next I heard was from Mr Scaife that they had written to him about the gallery.

Cross-examined : Brown's evidence as to what t .ok place in my office was not correct. I have never seen the letter written by Mr Buttle. When I told Brown his tender was accßpted he did not ask '' which one '/ " nor did 1 reply " the one making all the deductions."

B. Buttle, Secretary to the Wesleyan Church Building Committee, corroborated the evidence of the previous witness, stating that he wrote to Brown simply to emphasise the contract made at Mr Bethwaite's office.

By Mr Pitt : If that is so, why does not the letter refer to the c mtract as a whole, and not merely to that for building the gallery / I cannot say now.

Re examined : I am quite clear that Brown left Befchwaite's office knowing that he was to build the church and the gallery.

John Scott : I tendered originally for the church, and at a later period was asked to estimate the cost of completing it according to the contract made by Brown. I included in that estimate the main building of the church and the gallery, and I valued the whole work at £1098.

James Robertson : I tendered originally and was subsequently asked to estimaLe tho cosb of completiug the church and gallery. My e.-^iniatn was £] 13;? I. tendered for that price in reply to the advcrtideinenfc inviting tender*.

Mr Fell said that though the matter had been very loosely carried out ifc was clear that the contract entered into in Bethwaite's office was that Brown was to build the church and gallery. Brown in his statement at the meeting 1 of his creditors treated the whole contract as one. Tho plaintiffs agreed to carry out the contract in accordance with the specifications signed by Brown, Brown had signed for the whole whole work including- the spire, but the evidence showed that tho real contract was for the church and gallery only. There could be no doubt that the plaintiffs knew perfectly well what they were doing, and th they had come here merely attempting to drive the Assignee into a corner and get that extra £157 out of him. He did not believe the plaintiffs had gone into the cal v culation at all, but knowing what Scott's tender was they offered to do the work for a few pounds less and then raised this unworthy quibble.

Mr Pitt complained of the attitude taken up by Mr Fell towards the plaintiffs who were making a perfectly fair and legitimate claim. Tenders were invited by the Assignee for the completion of the church according to the specifications signed by Mr Brown, and the whole question was what were those specifications ? 'I here could be no doubt that the contract entered into by Brown at first and for which he signed the specifications, was for the church alone, and that it was after he had signed that the contract for the gallery was entered into. Mr Buttles letter absolutely corroborated Brown's state inent to the effect that the gallery was a separate contract. The plaintiffs on examining the specification found attached to them a letter from tho trustees asking what would be the difference in price with certain omissions, eae of these being the gallery, and they naturally thought this was not to be part of the oontract. Tbe defendant, he submitted, had utterly failed to show that the plaintiffs had agreed to build the gallery. His Honour said that tho real diffiouUy in the case arose from the conflict of evidence, but the way to avoid that would be by dealing with that portioa of tho ovidenoa in whioh there was no conflict or confusion. Now, what was in the plaintiff's minds when they signed the plans and specifications ? They must have intended to tender for all that Brown had contracted for, and that f'itzwilliarn knew what that included was beyond ali doubii. He says he knew that Brown had to ereot the gallery. It was included in the specifications, Fitzwilliam knew that Browa had to put it up, and he oontraoted for ail that he knew Brown had contracted for. Some stress has beeu laid on •he statement that Brown's tendor for the gallery had not been accepted when he signed the plans and specifications, bud there is no doubt iv my mind that it femed part of the whole thing. Brown's account of what took place in Bethwaite's office appears unlikely and unreasonable. I think that he entered into the coutraat to build toe church and gallery for £1839, and that thero oan bo no doubt that he knew what ho was signing for. I take it that tho plaintiffs enterad into their oontraot with a full knowledge of what Brown had undertaken to do. A person quite ignorant of the facts might perhaps on ■ ooking over the documents think that the gallery and spire were excluded, but I have no doubt that Fitzvriliiam had a perfect knowledge of what Brown's contraot inducted. I do not impute to him any dishonest conduct, but I rnuat infer that he knew what he was contracting for. For these reasons I think that the gallery was included in tbe plaintiffs' tender, and that consequently they are not entitled to reoovor. I shall thoroforo nonsuit them with cosls. Cl 2 6s.