THE DIXON-STREET CUTTING.

New Zealand Mail, Issue 420, 28 February 1880, Page 21

THE DIXON-STREET CUTTING.

The claim against Messrs. T. K. Macdonald and Co., for payment to the City Council of LIOO, a promised contribution by that firm towards the cost of cutting down Dixon-street, was heard before the Resident Magistrate on Monday. Mr. W. T. L. Travers appeared for the City Council, and Mr. Ollivier for the defendants.

Mr. Travers briefly opened the case for the plaintiffs, and read the correspondence which took place between the Council and defendants with reference to the Dixonntreet cutting. From these letters it appeared that defendants had offered to contribute one-fourth of the cost towards the work of cutting down and forming Dixonstreet, provided the work was proceeded with at once, the object of defendants in making the offer being to realise upon some property in the vicinity. The offer was accepted, and the work carried on with all reasonable despatch. The promised contribution for which the Council was now suing amounted to LlO3 155., but it had been reduced to LIOO, in order to bring it within the jurisdiction of the Court. The only question could be, was the work proceeded with "with all reasonable despatch." For the defence, it was contended that the offer had only been made on condition that the work was proceeded with at once, but it was postponed until October, 1878, and when it was started it was some five months in progress instead of two. He (Mr. Travers), however, contended that the Council did what was required cf them with all reasonable despatch. They could not disregard the question of levels any more than other people could. The tender was accepted, and the work entei'ed upon on October 25th, the contract to be . finished in two months, but though' a longer period was taken over it, and Mr. Macdonald knew what was beixig done, he does not appear to have made any remonstrance against the delay. The contractor appeared to have been guilty of some delay, but that was not

made the subject of complaint ; indeed, it appeared that it was only when the work was completed, and the demand was made upon defendants for their promised contribution, that the defendants had found that their speculation had not paid, and they tried to get out of it. He put in the documents setting forth the contract, and did not propose to call any witnesses. Mr. Ollivier admitted the documents, but would like the Town Clerk and City Engineer to be called, as he wished toexamine them.

This course was agreed to. J. D. Baud, City Surveyor, deposed ta having called for tenders for the Dixonstreet work. Mr. McLean's tender was accepted. There was a delay in starting the work, in consequence of the levels of AVillisstreet not being fixed. The levels of Dixonstreets depended on those of Willis-street. There was also a slight delay on the part of the contractor, as he could not get timber just when he wanted it. By Mr. Ollivier—There was a delay in reference to the levels of over 28 days. Witness was not aware of any considerable delay taking place in la3 r ing the tenders before the Council. On the night the levels were to be considered there was a public dinner, to which the Councillors went, and the Council meeting lapsed in consequence.. The works were to be finished on December 25, according to the contract. The works were not complete by that date. They were not finished till February in the iollowing year. During that time witness frequently saw Mr. Macdonald. He did n.ifc remember Mr. Macdonald speaking to him about thedelay in forming Dixon-street. Witness knew Mr. Macdonald was intending to sell his property. The construction of the sti'eet to connect with Macdonuld-ercscent would considerably enhance the value of the propertj*. The contractor was not fined for his delay.

Bv Mr. Travers —Witness thought Mr. Macdonald was a councillor when the meeting of the council lapsed. He was at the dinner. He was cognisant of all the facts of the case.

C. C.. Graham, Town Clerk, deposed tocorrespondence having taken place between the Council and defendants with reference to the work. Part of the work would not have been done but for the offer of the defendants. Mr. Macdonald was a Councillor, and never made any objection to the delay that was taking place. The first objection he made was when the claim for payment of the contx-ibution was sent in to him.

By Mr. Ollivier —Witness always attended the meetings of the Public Works Committee. He did not remember Mr. Macdonald making a statement of what he intended to do when his letter was brought before the Council. He thought Councillor Macdonald would naturally refrain from saying anything when his application was before the committee.

This was the case for the plaintiff. Mr. Travers submitted that if defendants had any objection to the delay they should have stated it before they did, as Mr. Macdonald was per '-ictly cognisant of all that was going on. i! e could not now turn round and say, " I won't pay " after the work was finished and he had got all benefit from the work that was possible. For the defence, Thomas Kennedy Macdonald deposed that he was one of the defendants. When the application was made by his firm, he stated to the Council in detail what the proposal was. He suggested that instead of waiting for the LIOO,OOO street loan to be floated the work should be performed at once and his firm would contribute one-fourth of the expenses. They wanted badly to get their sale off in November, and witness was constantly complaining of the delays, which were a source of frequent irritation. He did address the Council formally upon the subject. The delay entirely upset his arrangements, and on January 27th he had to put up the properties, and sell for less than they would have realised in November, as the depression in the money market had set in during the interval. By Mr. Traver.s : When -witness found .that he had lost by the delays he offered LSO to compromise the matter. By Mr. Ollivier : Witness would have realized more than he did if he had held the sale in November with the street untouched. When he did sell the contractor was right in the middle of his work. Robert Greenfield, a City Councillor, deposed that he remembered application being made to the Council by defendants for Upper Dixon-street to be formed. Councillor Macdonald then exjjlained what he wanted the work done for. The property should fetch a higher price after the formation of the street than previously. Councillor Fisher also remembered the application made by defendants, and Councillor Macdonald making an explanation as to why the application was made. There was something said about the property going to be cut lip for sale. John McLean deposed that he was the contractor for the work. .He remembered a delay in consequence of the levels not beinjr cori-ect. The levels had to bo advertised over Witness often saw Mr. Macdonald" who had mentioned the work to him and was anxious that it should be proceeded with.

This was the ease for the defence. Mr. Ollivier then addressed his Honor, pointing out that in consequence of plaintiffs' delay, defendants had had to proceed with a forced sale of the property under the most disadvantageous circumstances. It would, therefore, be unjust to hold defendants responsible for the promised payment. The contract had not been performed as speedily as possible, for there appeared to be gross negligence on the part of the plaintiffs in the matter. His Honor reserved judgment.