SUPREME COURT.—In Banco.

New Zealand Herald, Volume XI, Issue 3997, 3 September 1874, Page 3

SUPREME COURT.—In Banco.

Wednesday, 2nd September. [Beforo His Honor Sir G. A. Arney, Knight, Chief Justicc.] NEr.sox Ireland v. Brogdf.n and Sons (Demurrer).—The action was brought to recover for certain work done under contract. The plaintiff is a quarryman and contractor, and the defendants are the eminent railway contractors. The action was, in point of form, according to the defendants' counsel upon the construction of the declaration, to recover damages for breach of contract. There were two counts in the declaration. The first count set out that on or about tlie stli January, 1572, it was agreed between the parties, the plaintiff to perform and tlie defendants to pay the plaintiff for the performance of certain work A memorandum of the said agreement was signed on the 16th of May, 1872. The plaintiff agreed to quarry 1500 cubic yards of stone blocking : to deliver and stack the same beside the Auckland and Waikato railway at the rate of 10s Gd a cubic yard—the stone to oe quarried, &c., according to specification. The first count of the declaration further alleged that the plaintiff entered upon and in pursuance of his contract "quarried and delivered" in accordance with the terms of the contract. There was a general allegation "that all times had elapsed, all things had happened, and all conditions were fulfilled by the plaintiff necessary to entitle the plaintiff to the performance of the contract, and that the defendants refused, an<l still refused to pay £1.1 G 0s 6d, the sum due on account of the said stone so quarried and delivered." The defendants demurred to this declaration. — Mr. MacCormick appeared in support of the demurrer ; Mr. llees in support of tho declaration.—Mr. MacCormick said the declaration did not shew the performance by the plaintiff of the agreement declared upon. It did noi, shew that plaintiff had "delivered and stacked" any stone blocking in accordance with the specification under the agreement. That the declaration did not shew any breach of the contract by the defendants, they not being bound to pay until the contract was completed. The learned counsel contended that this was " one entire contract," which threw upon the plaintiff the obligation of completing it before he was entitled to any payment whatever.—Mr. Rees, in support of the declaration, said that in as much as it was clearly set out that the plaintiff had performed all the conditions of the agreement, it was not necessary to set out in detail all the conditions precedent; that the general statement of all things having been done, and all conditions fulfilled to entitle the plaintiff to payment, was sufficient to cover any defect in the declaration from the omission of the statement of one of the conditions precedent. His learned friend would hardly contend that this was an indivisible contract, and that the plaintiff was not entitled to anything whatever for the work he had done. — His Honor said that, looking at tlie language of the contract, it was exceedingly difficult to say whether the plaintiff had any claim before lie "quarried, delivered, and stacked" the whole 1500 cubic yards. But upon the grounds set forth in defence of the declaration, it appeared to the Court that when two of the conditions out of thr'se were set out, and the third omitted, it must be construed that one was omitted becausa the plaintiff knew it was not performed. He did not think that the general averment referred to covered tlie omission. —ill*. MacCormick .was not called on to reply, and His Honer gave judgment for the defendants. The Court was adjourned until 11 o'clock on Thursday morning.