SUPREME COURT.—CIVIL SITTINGS.

New Zealand Times, Volume XXIX, Issue 4236, 17 October 1874, Page 3

SUPREME COURT.—CIVIL SITTINGS.

Friday, October 16. (Before Hia Honor Mr. Justice Johnston and a Special Jury.) WYLIE V. M'KIRDr. Mr. Travers for the plaintiff, and the At-torney-General and Mr. Hart for the defendint. _ . The following are the names of the jury sworn in :—Thomas Maaon (foreman), James O'Shea, F. C. Kreeft, J. A. Edmondson, I). Rainie, G. E. Tolhurst, W. H. Meek, G. H. Vennell, T. J. Ladd, R. Collins, P. Laing, and C. Tringham. This wan an action brought by Mr. J. C. Wylie against Mr. McKirdy for recovery of £1022 for services rendered as a civil engineer, from sth May to 10th July, 1874, salary at the rate of £4OO per annum ; extra professional services and expenses paid. The defendant had paid £4O into Court. Mr. Travers opened the case for the plaintiff, and called the following witnesses : J. C. Wylie, sworn, stated : I am a civil engineer. Know the defendant, who was a contractor for the river contract on the Wellington and Masterton Railway. In May last I had an arrangement with defendant with reference to that work. He asked me if I was open to an engagement. I replied that I was. We ultimately came to an engagement, by which I was to receive £4OO » year, and all travelling expenses, for acting as engineer on the river contract on the railway work mentioned. I was also to receive half my expenses during any time which I might bo in Wellington in connection with my duties. He closed with me for an engagement for a year from the sth May. I was to have sole charge of the river contract. I said that I would not include any extra work for the same salary. Defendant said I should have an interest in all contracts obtained after my engagement. I was to have a third of the profits for furnishing tho necessary information requisite to obtain contracts, and to look after the works when obtained. I asked him about having a written agreement. He advised me to go to Messrs. Hart and Buckley about it. I did not go to them, and we had no written agreement. I entered upon my duties the day after the engagement. I first went on to the work for the Mungaroa contract, obtaining necessary information, &c. The river contract on the Master-

ton line had only just commenced. It took hie about three weeks to make the necessary calculations with reference to the Mungaroa contract. During that time I was up several times to the river contract. I subsequently supplied all the necessary information upon which to tender for the Paid Paid contract at Napier. It took me four or five days. This was all done between tho sth of May and 10th July, during which time I was engaged on the work of the river contract. Defendant went to Napier about the Paid Paid contract, and left me in full charge. We had no dispute before ho left. He returned about the 7th or Bth July. He spoke about the second tunnel on the Mungaroa line, and said in reference to it that there would have to be a change, and a good one too. I asked him that night what he was so nasty about, and he said I had not done a thing whilst he had been away. I asked him if he'd seen what I had done. He said no, and he did'nt want to see. He said that I had been drunk all the time he was at Napier. I said it was a lie ; and so it was. I had never been drunk while he was away. I was engaged ou the work, and gave proper attention to it. Next day he said, " Let the matter drop, and proceed with the work as usual, and I won't have any more complaints." He said he wanted tracings of the Hutt bridge, and I told him it was not my duty to be constantly doing such work. He wrote some few days afterwards, and asked what expenses I had been put to, also stating that ho could not understand my account as rendered, regarding half expenses in Wellington, and requesting ma to render an account for expenses actually incurred between Wellington and the Hutt. I wrote in reply, referring to and repeating our terms of agreement made when I engaged with him. He then wrote again mentioning expenses, and giving me notice that he should not require my services after the expiration of a month from date. I afterwards saw him, and asked him what he meant. He said he had made up his mind, and it was no use my saying anything. I told him he knew that we had engaged for twelve months. He said I could do just as I liked about that, and I said I should have legal adviee on the matter. I received a cheque from him that night for £lO. He afterwards charged ms with supplying other contractors with the same calculations I had made for him. I had not done so. Mr. McKirdy was successful for the contracts for which I prepared the estimates of quantities. I afterwards offered my services to him. He refused to accept them, as he heard I had asked another contractor to go in for the contract with me. I had mentioned it to another contractor in consequence of Mr. McKirdy's refusal to continue our engagement. I have been an engineer on railway works for about nine years. One and a-half per cent, is usually paid on the amount of the tender for preparing calculations for tenders. The Mungaroa contract was for £55,000. The item of £lO is for half expenses in AVellington during eight weeks, as arranged, and another item for expenses on the Hutt railway, before I had a pass given me. I have done nothing for defendant since he broke the agreement with me.

Cross-examined by the Attorney- General: I remained with McKirdy three or four days after July 10. I did not employ that time in writing circulars to other contractor. I wrote one letter to Mr. George. I was in the service of Messrs. Brogden for about three mouths in this colony, having come from England under engagement to them. I left their service through a disagreement with Mr. Henderson, and Jerusalem Smith, Brogden's agent. The complaint against me was inconrpetency, through letting a small tender at an exorbitant price. That was the only reason assigned. Mr. Smith never had to rouse me out in the morning, and never complained to me about my lateness. Neglect of work was never assigned as a reason for my leaving. I know Mr. Billing, and spoke to him about McKirdy with reference to engineering work. What Billing said to McKirdy was not the cause of my engagement, but what the latter overheard in the coach going to Oamaru. McKirdy told me this. He did not tell me what Billing said, nor what he (McKirdy) h«ard in the coach. I was not taken upon trial with McKirdy. There was nothing said about a trial. I was out of my in 1868. I was about eighteen when my articles expired. Messrs. Brogden paid me £3OO a year and expenses. There was nothing said at my interview with McKirdy about having misconducted myself whilst with Messrs. Brogden, or Billing having asked defendant to give me a trial. I received about £75 10s. whilst with McKirdy. When I engaged with defendant he said a friend of his was going to Melbourne, and would get me some instruments, if I sent the order. Such instruments as I gave an order for are generally supplied by employeis. It was for McKirdy that the instruments were ordered. I never got them. I did superintend the river contract at the Hutt. I went out some fourteen or fifteen times, remaining the whole day each time. I did all the necessary work, as a Superintending Engineer, during the time I was with defendant. I had no other claim for expenses against McKirdy, other than those put in. Whenever I wanted money I got it from defendant by cheque on account, both salary and expenses. McKirdy did not tell me that I was overdrawn on any occasion of my asking him for money. He said, " I hardly think you know how much you have drawn." He offered, at the same time, to give me a cheque for the month's salary instead of a notice. When McKirdy went to Napier he did not give me instructions not to go on the river contract. He did not at that time give me express directions to prepare tracings for the Hutt railway. He did so after his return from Napier. The papers produced do not represent all the work which I did during MeKirdy's absence at Napier. I took out the quantities for about two miles of the Mungaroa contract. No time table was kept at the office, either during MeKirdy's absence or after his return. When he came back he made remarks on complaints he had heard about me being drunk. I lived at the Criterion Hotel when in Wellington. It is a fact that I have taken no breakfast in the morning at times, and had a stimulant instead. I did on one or two occasions order a " John Collins." For years I have been in the habit of doing without breakfast. I was never intoxicated whilst in MeKirdy's service, and never suffered from the effects of drink. I was not in the habit of going away from the office on other business than MeKirdy's. I am not in partnership with either Strachan or Oakes, nor have I a joint interest with them in any contract. I have a percentage on the profits on the Port Chalmers contract. I never saw Mr. Oakes till after I came to Wellington. I was about with him often. Mr. Oakes', 1 ) tender for the Mungaroa contract was not the next to MeKirdy's. Mr. Strachan's was the next, at £56,000. Mr. Oakes' was next to MeKirdy's for the Paki Paid contract. I was not in a violent state of drunkenness at Broughton'a hotel whilst with McKirdy. Ite-examined : McKirdy never made a complaint to me as to drunkenness or attendance at the office. After dismissal from Messrs. Brogden, Mr. Henderson said that if they got any other contracts he would be glad to give mo the first offer of employment. I had the mumps during MeKirdy's absence, and that was perhaps the reason I eat no breakfast. J. It. George, sworn, stated : I am a civil engineer, and am acquainted with the work of taking out quantities for tenders for railway contracts. It is tedious work, involving a deal of calculation, and the proper completion of it is essential to the success of the contract. It is tho usual custom to allow from one to one and a quarter per cent, on the amount of the contract to the engineer who does the work. It is usually tho work of skilled engineers. An engineer may take out quantities for more than one tenderer, but the percentage would be paid only by the successful tenderer, and the payment by tho others would be » matter of arrangement. One per cent, would be a fair price on the successful tender for the Mungaroa contract. It would involve two or three weeks constant work at six or eight hours a day to do the work properly.

Cross-examined : The work is done sometimes by persons who are not engineers. I am awaro that copies of the estimates of quantities, such as those given in, have been sold at three guineas each ; but tho person who sold them did not draw them. I tendered for the Mungaroa contract. In casea in England

where estimates of quantities are drawn a guarantee is usually given by the person drawing them out. R. Burrett, sworn, stated : I have had some conversations with both plaintiff and defendant about the matter of this action. I offered to give plaintiff £7O to abandon the case, in addition to the amount of £lO paid into Court. Wylie refused it. Cross-examined: I knew Wylie during his employment with defendant. I have seen him drinking often. I could not say I have seen him intoxicated; but if I had taken as much as I have seen him drink I should have been very drunk. I have seen Wylie in such a state, during the time he was with McKirdy, as would not suit me if he was in my employ, because he was not in a fit state to do business.

I Re-examined: I warned McKirdy about plaintiff and Oakes being so much together, but defendant said he did not give him any information. I had a suspicion that Oakes was at tho bottom of the affair of dismissal on account of being so thick with plaintiff. Frank Broughton, landlord of the Criterion Hotel, sworn, stated: Mr. Wylie had been living at his house for some time. He was never unfit for business during the day—that I saw—when with McKirdy, and I never saw him drunk in the day during that time. Cross-examined : He frequently had a "John Collins" in the morning. Mr. Travers was about to call another witness when His Honor remarked that he could not see what the sobriety or drunkenness of the plaintiff had to do with the case. It was not wrongful dismissal that was being tried—it was simply as to whether plaintiff was entitled' to certain payments for drawing the estimates of quantities for contracts. A long discussion ensued as to the points of the case, and as to the necessity or appropriateness of introducing the evidence as to drunkenness; and it was ultimately agreed that the evidence on that head was foreign to the case. Another discussion then took place on certain law points of the case, which led to the Attorney-General asking leave to alter the plea. Mr. Travers stated that such a proceeding would necessitate additional evidence for a separate line of defence, for which he was not prepai-ed at so short a notice. His Honor allowed the alteration, and it was ultimately decided that the case should be adjourned until Monday next, at 10 a.m. The question of costs for the day was raised by Mr. Travers, who contended that the defendant, having applied for an alteration in the plea, necessitating an adjournment, should pay them. The Attorney-General opposed, saying that they did not apply for the adjournment. His Honor reserved the question.

The Court then adjourned until ten o'clock next day.