Legal Gazette.

New Zealand Mail, Issue 545, 15 July 1882, Page 21

Legal Gazette.

SUPREME COURT OF NEW ZEALAND.

CAUSE LIST.

CHAMBER BUSINESS.

Ee petition of J. Judd and others.—Standing over Wanganui Coal Company.—Motion, standing over. Cooper ▼. Coleman and others.—Summons ; stand-. Williams r. Williams and another (divorce).— Motion; standing over. Jones and another ▼. Taylor.—Summons; standing over. Palmer v. Thompson.—Summons; standing over. McDonnell and others v. Paramena.—Summons ; standing over. Ee A. Duncan.—Summons. Woods and another v. Waller and another.— Motion; standing over. Smith and another v. Waller.— Motion; standing over. Ward ex p. Williams. Re Beer, a debtor.—Motion. ' Creditors’ Trustee Hutchison’S estate v. Toomath and others.—Summons. Willis v. Davis.—Motion. Christie and others v. Powles.—Buie nut. IN BANCO. Houghton ▼. Compton.—Argument. Locke v. Sheehan.—Demurrer. Plimmer v. Duggan.—Case on appeal. Thompson v. Handley.—Summons. ~ Griffin v. Cawood.—Rule. Biddle v. Stevens.—Decision reserved. Haughton v. Moody.—Case on appeal.

CIVIL SITTINGS. Hurrey v. Bank of New South Wales.—(Special Jury); July 26.

IN THE COURT OF APPEAL, NEW

ZEALAND.

SMYTH V. THE QUEER', / . Judgment of Richmond J. On the argument of this case the demand of the suppliants was finally reduced to a sum of about £6OO for work and materials, and a suni of £750 for maintenance of the line during a period ef five months. "With respect to the items ranged under the former of these heads, with the exception of the items Nos. 4 and 6, for fascine work in the swamp at Bm. 28ch. to Bm. 52ch., asd of the ditching at the same spot, we all agree that the claim of the suppliant fails. As to items 18, 19, 25, 26, 27, 31, 35, 36, 37, 39, 40, 53, 54, and 56, clauses 5 and 27 of the general conditions have not been complied with. Items 48, 61, 60, 61, and 62, are claims for an allowance in excess of that, already made for them as extras by Mr Blair, the Engineer “ having principal charge of the works ;V and under clause 27, just referred to, are quite inadmissible. Items 19, 29, 30, 41, 43,44, 49, 55, 58 and 64, are a mass of small charges together amounting to something less than £9O, and were given up as plainly unauthorised. These items are not included in my estimate of £6OO. All the items ,on which I myself allowed anything, except the sum of £750 for maintenance, were also abandoned. The same is to be said of the items included in paragraphs 4, 5, 10, 11, 14, 15,. 16, 21, 22, 23,29, 42, and 43, of the special case stated by Mr Scott. 'As to items 7 and 8, for raising embankments at 9m. to 9m. 25ch. and 9m. 27ch. to 9m. 30ch. I am of opinion, on Mr Scott’s statement of facts No. 5, in regard to those items, that they were part of the contract work and not additions to it. This ' leaves for consideration only items 4 and 5, and the question as to maintenancemoney. As to items Nos. 4 and 5, we have, by the consent of the parties, been enabled to look at the documents referred to by Mr Scott in his statement of facts No. 1, and from this inspection my brother Gillies has drawn inferences which, it seems to me with great respect, we are not in anywise justified in drawing. He is of opinion, that these items have been certified as extras by Mr Blair, because, on the official file of documents produced to us from the office of the Minister for Public Works at Wellington, we find annexed by means of a pin, to what is called the "summary certificate” dated October 5, 1874, for a progress payment for the month of September, which is signed by Mr Blair, amongst other papers, a document, not signed'by Mr Blair, but headed " Certificate of work for the month of September, 1874,*’ which particularizes the two items in question, under the heads "extra length of swamp ” and “ ditching.” The latter document may justify the inference that the estimated value of this work, taken at £175, was included in Mr Blair’s estimate of £475 as the value of work done from the commencement of the contract, under the head of " grading.” But in this there is nothing to show that Mr Blair recognized the works in question as extras; the grading of the line, that is to say, the bringing it up to formation level being within the specification, and included in the contract price of £7279 6s 6d. It seems to me a mistake to regard the Engineer or his employers as bound by the terms of a mere calculation by means of which he arrives at his estimate of the proper amount for the progress payment. Such a calculation (even if it bore Mr Blair’s signature) is no transaction between the parties to the contract. To see what the transaction was, we cannot look beyond the signed certificate of the Engineer, i.e., in my view of the matter the summary certificate and the voucher for payment ; and in the latter we find that the progress payment for September, like all the other progress payments, was made and received on account of the lump sum of £7279 Gs Gd named in the tender. Five or six of these documents were signed by the suppliant after the voucher on the September payment. Each shows the total previous payments on account of the fixed contract price ; and in each credit is taken by the Government for the September payment as a payment on, account of the fixed contract price. No credit is given for additions to the contract in any of these documents. In the printed forms there is a line for "additions authorized.” This line is left blank in all the vouchers signed by the suppliant. It is apparent from the terms of Mr Blair’s subsequent monthly certificates that he considered he had made an error in allowing anything in his estimate of work done for these two items. According to the system of payment under contract of this kind, it may easily happen that the Engineer is unable te allow upon the actual value of the work. The contract may have been taken for too low a sum, and were he to go on cer-

tifying according to the actual value, 90 per cent, of the whole contract price might be paid over before the undertaking was half finished. The Engineer must, therefore, it is evident, adapt his estimates for progress payments to the amount of the tender. In the present case, finding that he had in the certificate for September exceeded the tenderer’s own estimate in regard to the value of work under the head “ building swamp,” which is put down in the tender at £3OO, Mr Blair reduced his estimate of £475t0 £3OO, leaving, however, the overpayment of £157 10s. oa. on the preceding certificate (being 90 % on £175) to be adjusted on the final certificate. But in the voucher’s the progress payment of £348 6s Od for the month of September, which included the £157 10s Od continued, as I have said, to be debited to the contractor as part of the sums received by him on account of the contract price, and it does not appear that he ever made any objection to this mode of treating the payment. On the whole, Ido not think it is allowable to say that, because Mr Blair upon one occasion included these two items in a valuation of work done under the contract, he is theref6re to be supposed to have recognized them, and authorized the payment of their value as additions to the contract.

The special certificate made out for these items which is referred to by Mr Scott turns out to be a certificate by Mr Paisley, who most certainly was not the engineer within -the meaning of clause 5 of the general conditions. As to the fascine work it appears to me on Mr Scott’s statement of facts No. 4 that it really formed part of the work contracted for. Clause 3 of the specification binds the contractor to raise the embankment in the swampy ground between Bm. 30ch. and Bm. 45ch. to an extra height. This special stipulation affords no ground for inferring that the contractor was discharged from his general undertaking to bring the whole line up to formation level. The case is just the same asthatof items Nos. 7andß. As to the ditch that is found by. Mr Scott to be an addition, and there is nothing to remark on this finding, it was never ordered by Mr Blair, nor even it seems by Mr Paisley. We were informed by counsel for the Crown that it was supposed to have done actual harm by breaking the surface of the swamp. I merely mention this as suggesting that we should be rash in concluding that any actual -injustice has been done by the disallowance of these items. Next as to the claim for maintenance. It appears to me that this demand would raise a difficult question of construction if it were now 'opeD to us to consider what was the meaning of the tender, having regard to the language of the 14th clause of the speceification inviting tenders at a price per month. On this point I incline totheopinion of my brother Williams. But I think, the question is disposed of by the 27th clause of the general conditions, providing that no sum of money shall be considered to be due or owing to the contractor, nor shall the contractor make any claim for or on account of any work executed or maintained by him unless upon the certificate of the Engineer that the works have been finally and satisfactorily completed. I read this as meaning that the Engineer’s certificate must be given as to the satisfactory maintenance of the line during whatever period he finds that it has actually been maintained according to contraot. In the present case Mr Blair has certified for £l5O, and no more, as finally due for maintenance. This certificate bears date 22nd March, 1876, several months after the expiry of the six months’ period of maintenance. The reason why £l5O and no more was allowed for maintenance does not appear. It may have been because the parties were then agreed, or because Mr Blair then considered, that £l5O was the contract price for six months’ maintenance. It may have been because Mr Blair was not satisfied that the linehad been satisfactorily maintained for more than a month. Either way, the fact remains that there is no certificate for more than £l5O under this head of maintenance, and that being so, I do not think that more is shown to be due under the contract. On the whole, therefore, in the opinion of a majority of this Court, the claim of the suppliant totally fails. Judgment must be entered for the respondent, with costs of suit here and below. And the crown must also have the costs of the reference award and arbitration.