SUPREME COURT. —NISI PRIUS.

New Zealand Times, Volume XXXIV, Issue 5552, 14 January 1879, Page 2

SUPREME COURT. —NISI PRIUS.

Monday, January 13. (Before his Honor the Chief Justice and a

special jury.) The Court- re-opened at 10 a.tn, o’neill r. Brown.

For plaintiff, Mr. F. M. Ollivier. For defendant, Hon. Mr. Buckley, with him Mr. Stafford.

Mr. Ollivier stated the plaintiff’s case. This is an action brought by Mr. Charles O’Neill, civil engineer, against Mr. Samuel Brown, a contractor, to recover a commission of 2J per cent, payable by Brown to O’Neill on the contract price for the construction of the Wellington City Tramway and certain buildings connected with it. The claim is aa exceedingly simple one, resting on one of the most simple transactions which is known to our law. The claim for commission is, I apprehend, a matter which is familiar to the minds of most of you. I need not trouble you with the pleadings. The declaration will prohaoly tend rather to mystify than enlighten you because iu order to meet any phase of the same fact it was deemed necessary to put the claim into four different shapes. We have what are called four counts. The story is told in four different ways, and you will understand at the outset that if you give us a verdict on any one count we shall not ask you for judgment on any other as far as I can see at present. The facts are simply these:—ln August, 1876, Mr. Brown put in a tender for the construction of tho Wellington City Tramways and certain buildings connected with them. When the promoters received his tender they were agreeably surprised to observe that the amount was far below what they expected to see, and in the generosity of their hearts they went to him and said: “You cannot do it for the money ; you had better take it back and put something on to the price ; you will ruin yourself, and you had better add a thousand or two.” Mr. Brown thought he might- as wall adopt the suggestion of the promoters, and he said perhaps there might have been a mistake in some of his calculations ; at all events ho would take back his papers aud see. He spoke to Mr. O’Neill on the subject, and finding ho was so generously treated he said; “ Mr. O’Neill, I observe in the specification that you have not said anything about your commission as engineer for the undertaking ; bow, it is usual here for an engineer to get a commission ; I always pay a commission to engineers from whom contracts are obtained ; it is usual to put that in the specification ; am I to consider this amount to be put in!" Mr. O’Neill said: “I am not aware what the practice is iu Wellington ; if it is the custom to put ..the commisa : ou iu the specification, we will regard it as though it were in the specification; and so Brown went away, and on looking through his papers he found he had omitted some important amount or other, for he sent iu a tender for £2OOO or £3OOO more than the first contract. That tender was readily accepted by the promoters, and Brown commenced the work on that footing. He had not proceeded far before he wanted the usual engineer’s plans and other necessary information, to enable him, as contractor, to carry out the job he had taken in hand, and ho went to Mr. O’Neill aud got what he wanted, many things being exceedingly simple—matters which involved no great amount of work on anybody’s part. For some of the things he got he gave a receipt. We shall put in a. couple of receipts for documents he received from Mr. O’Neill. These were supplied by O’Neill to the contractor at his request, in pursuance of his contract entered into between them. Mr. O’Neill was to get for the work he did in Mr. Brown’s interest a commission of 2J per cent, on £13,000, the price at which the tramway was to be constructed. The commission was not paid ; but don't misunderstand me for a moment, it was not all left unpaid ; £IOO was paid on account; but we shall have something to say on the subject of this £IOO, because the plaintiff in his declaration does not give- credit for it, and the defendant in his pleas does not take credit for it. He is quite prepared to pay £325 over again in full ; but he did not think proper, no doubt for some reason, which I have been unable to fathom at present, to set it up by way of an answer pro tanto to the claim of the plaintiff. What is the nature of the defence ? Defendant says : “ I deny all the material allegations.” You have heard that plea before. Any of you who have served on a jury before have heard the plea, “The defendant denies all the material allegations.” It is what we call a general issue, but the plain issue is this : “ I have no special defence to set up ; we will deny all the plaintiff says, and put him to the proof of it; if we do, not beat him at the beginning it is just possible something will turn up to enable us to beat him altogether.” That is what they rest their defence on. They simply say—“We deny all the plaintiff says.” You will see from the contents of the letter from the defendant to the plaintiff, dated 27th October, 1876, that there is a clear admission of the contract for the payment of the commission, as that letter contains a distinct assurance that the balance of the money would be paid in what he was pleased to consider due course. I shall not call much evidence to prove our case, unless evidence is given on the other side which may render it necessary to produce rebutting testimony. .. . -

The following evidence was given : Charles O’Neill, examined by' Mr." OUivior.: I am a civil engineer, carrying bn business in Wellington. ' I have been here for abont three years. I was the original promoter of ' the Wellington City Tramway. I subsequently associated myself with Messrs. Henderson and Macdonald, who joined me as promoters. On behalf of the promoters, tenders were called for. A tender was sent in by the defendant. That was in August, 1876, The first tender was referred back to Mr. Brown by the promoters for re-consideration, on the ground that it was considered by the promoters that the tender was too low. Shortly after that I had a conversation with the defendant with" reference to my commission from the contractor as engineer for the undertaking. Mr. Brown remarked that there was nothing stated in the specification to show what amount should-be paid by the contractor for tracings, plans, &c. He then stated it was usual for him to pay 2J per cent, on the cost of the work—the contract price. Ho said he was in the habit of paying Mr. George that amount. I Said, “If-that be the practice in Wellington, I will carry put the same practice, and you include it as if it- were in the specification.” He agreed to that. He afterwards sent in a new tender for £13,000, which was accepted, and the works proceeded after its acceptance. The contract has been completed, and the tramway was opened about nine months ago. Mr. Brown applied to me for plans and tracings, and X furnished him with what he required from time to time. [Receipts for plans, &c., put in.] I afterwards applied to Mr. Brown for a bill for what he owed me for commission. I received a letter [produced] dated October 27, 1876 ; this letter was in reply to my verbal application for a bill of exchange or promissory note in part payment. As far as I recollect, I wanted -some money, and I applied for a bill on account of the commission. When I spoke to Mr, Brown on the subject he said he would see, and he sent me that letter a day or two afterwards. -1 had before this received a cheque for £IOO fr*m Mr. Brown on account of the same commission which he refers to in the letter. The total amount of 2-1 per cent, on £13,000 is £325. I have not received any other sum from the defendant on account of the commission. The work was completed eight or nine months ago. I know of no reason why the amount has not been paid to me. -I have fulfilled my part of the contract.

Cross-examined by the Hon. Mr. Buckley : L think the tramway was opened in August last. All the plans were not completed at the time tenders were called. There was sufficient information before the day on which tenders were to be sent in. The only thing that was not in the specification was a clause for commission. I was not to receive 2 J per cent, for taking out quantities. It is not true I was to get 2 h per cent, for information supplied before his tender was sent in. The agreement between us was immediately before the tender was accepted. The agreement was made at my office about the 19th August, 1876. That agreement was that the contractor was to pay me 2i per cent, for suppling plans and tracings of the tramway and the buildings connected with it. I was to supply any plans and sections of the work that he would require during the progress of the works (or such as I had)

for about eighteen months. He called my attention to the specification. All I supplied him with were the plans mentioned in the receipt. I cannot remember that the plan for the buildings was -defective. My attention was called to the design for the buildings as being unsuitable. The contractor was afraid the roof would not hold. Mr. Brown was to be responsible for the building for a year, and as ho was afraid the roof would not hold, he went to Mr. Macdonald with apian, and I acquiesced in it. Mr. Brown may have obtained more detailed drawings. I believe he could have constructed the tramway from the plans referred to in the receipts marked A. and B. I gave Mr. Brown a plan of the city of Wellington, attached to that book. I gave him a photo, plan with the line of tramway drawn on it. I gave him a plan and section of the permanent way, showing the way in which the sleepers and rails were connected. I gave him the fullest possible information about curves. They were sufficient to enable him to get proper curves and points. The receipt produced contains all the information I gave him about points and crossings. I would consider that information sufficient. X don’t know that the points have since been altered. I don’t know that tho engines have gone off the rails through the points being defective. I was the engineer for the promoters. As engineer I did not lay down the permanent . way. I took no levels whatever, except a section. For the 2J per cent. I was to give the contractor the plana and tracings which ho required as the work progressed. I was a party to the preparation of tho book produced. I was to supply him with all sectional drawings necessary to complete bis work. I did not supply him with any further than those in the book. I supplied him with all that Is in this book, and nothing more. Nothing was. stated as to my pegging out the permnneut way for him. I cannot recollect whether it was not distinctly mentioned that I was to peg out the permanent way for him. Mr. Brown may have been under that impression. I cannot recollect that it was said. I appointed assistant city engineer before tffe works were commenced. I did not supply him with any information or data after that appointment. It was part of my contract with the defendant for the 24 per cent, to lay down the curves on tho permanent way. They require to be laid down with curves. That was done iby another ; it was not done at my expense, I don’t suppose it was done at his expense. He did not say before the contract for the 2 j per cent, that he did not understand the laying out of curves, and wouldjrequire a great deal more information from me than I imagined. The other engineer laid down the curves. The department expressed surprise that commission was not mentioned in the specification. I believe it is more a local arrangement than anything else to put in a commission. It is not the practice at Home, but it seems to be the practice here. At Home it is not usual to charge commission which is not specified. When the defendant gave me the cheque for £IOO I told him not to mention it to Mr. Macdonald. I don’t know what reason I had in my mind then for saying so, it was not because it was for work for which I was not to he paid. I considered it a matter between Mr. Brown and myself. Mr. Brown has to keep the work in repair for twelve months. It was not a part of the original contract on my part to assist him with plans and information in keeping the work in repair. It never occurred to my mind to have anything to do with the work after it was complete. I did not reply to Mr. Brown’s letter. Some time after I asked him if he was going to pay me. He objected to anymore payment. He said he consulted his late partner, and did not consider it right, as I was a promoter. Mr. Davis gave all the information he required after I became assistant city engineer. I had fdien to do my duty as assistant city engineer, and could not give information regarding the tramway. Re-examined by Mr. Ollivier : Mr. Davis took my place as engineer in charge of the lino in January, 1877. Mr. Brown made no objection to that. Mr. Brown did not apply to me after Mr. Davis came. Mr. Davis entered upon all the duties of engineer, and Mr. Brown referred to Mr. Davis, and not to me. Mr, Brown never complained that he could not get what he wanted" from Mr. Davis. Up to tho end of 1876 I supplied Mr, Brown with everything he wanted. Mr. Davis was paid by the promoters. I understood that I was to cease to bo a promoter in January, but the arrangement was never completed, I don’t know now‘what my position is with regard to the tramway. I worked for years at it, and never got a penny. Mr. Brown has always got from me what he asked. The works have been completed, and to the satisfaction of the company. Mr. Davis took my place as regards the contractor. Mr. Davis is an excellent engineer, and quite competent to furnish Mr. Brown with all he required, and I believe did so. I performed my part of the contract with Mr. Brown. The principal alteration made in the shed referred to was the substitution of timber for iron supports. This was the plaintiff’s case. The Hon. Mr. Buckley submitted that the plaintiff must be nonsuited. Tho alleged contract was one which, according to the plaintiff’s own evidence, was for the purpose of supplying tho re’essary plans and detailed drawings for the space of a year and a half. Mr. Ollivier intimated that he abandoned the third and fourth counts, and that he relied mainly on the first count. The Hon. Mr. Buckley said the plaintiff himself had alleged that ha was to have supplied the defendant with all tho necessary detailed drawings for the purpose of carrying out a contract which was to exist for a period of at least eighteen months. He submitted that the case clearly came within the fourth section of the Statute of Frauds, and that the contract required to be in writing. The verbal contract for commission was to be coternifflas with the contract between the defendant and the promoters, and ought therefore to have been in writing. Mr. Ollivier submitted that the Statute of Frauds did not apply, bscauae it did not appear that the work was not to be completed within twelve months. His Honor said the evidence showed that the conversation about the commission took place prior to the acceptance of the tender. He did not think the case came within the Statute of Frauds, and would not therefore direct a nonsuit.

_At the request of the Hon. Mr. Buckley, his Honor took a note of that learned couneel’s nensuit point. His Honor said it would be competent for thi;.' lamed counsel to prove what the contract wai’-uhder the plea of general denial. The Hon. Mr. Buckley then applied for leave to plead payment in satisfaction of the amount referred to in the contract. His Honor said it would be convenient now to adjourn, and the Court, at the request of the jury, was adjourned for an hour and ten minutes, resuming at 2 p.m.

The Hon. Mr. Buckley said he did not wish to press his application for leave. to plead payment, as his learned friend had abandoned the points of quantum meruit. His Honor, addressing Mr. Ollivier, said that tho question which the jury would have to decide was whether the plaintiff performed his contract, and they could not apportion the amount to which the plaintiff was entitled. They would have to say all or none. The Hon. Mr. Buckley then stated tho case for the defendant, and called the following evidence :

Samuel Brown, the defendant, examined by the Hon. Mr. Buckley ; I am a contractor, residing in this city. In August, 1876, I was the successful tenderer for the City Tramway. I entered into a contract, which was in writing. Before the acceptance of my tender I was referred by Mr. Macdonald to the plaintiff on points on which I was not very clear. I was referred to him as tho engineer of the undertaking, I presume. I saw Mr. O’Neill. ■Sic explained the points on which I had some doubt. I asked him then if there was any charge for engineering services. I said, “ There is nothing in the specification.” He said, after thinking a little, that he supposed there would be the usual charge, and he asked me what it was. I cited the charge usually made for plans, specifications, and working drawings, and any information they required. I cited the highest (2|), and Mr. O’Neill said that would be it. I said, “Will that satisfy you, as I shall probably require mote than you might think you would be entitled to give, as I do not understand the work very well, more especially setting out the curves.” Mr. O’Neill seemed to acquiesce in it, for he made no remark. 1 told him the amount of my tender, and'he said I had better charge that. There had been a previous tender which they declined. It was after I received a communication from the promoters that I saw Mr. O’Neill, I wrote the second tender after seeing Mr. O’Neill. He told mo to add the 2J per cent., but I did not. Nothing was said as to how the 2J per cent, was to be paid. I stated to Mr. O’Neill I should require more services than he might think he was entitled to give, and I asked him if the 2J per cent, would satisfy him. He told me to charge that amount. I was to receive for the 2J per cent, all drawings and yrorkiag drawings, and whatever information

and assistance I required for the work'during its progress. It was to be finished in eighteen months, and there was a year’s maintenance after that, I received from Mr. O Neill the documents mentioned in these receipts, A. and B. They were not sufficient to enable me to carry on tho work. The receipt marked A. was simply given for the iron material, but was of no use, as the same was in my tender book. Nevertheless, I sent them to Bngland, in case there was anything I had omitted. Receipt marked B shows plan of carriage shed, stable, and engine shed. The information not sufficient to enable mo to obtain the ironwork I required correctly. There should have been a detail drawing of the junction, which was not supplied. The result was that when the material came out it was not suitable for the line. When wo laid the points and crossings out hero we found they were all out of guage. If the formation had been supplied me by Mr. O’Neill, I should have held the manufacturers responsible. The engines and carriages were constantly running off the line, and we concluded that something must bo wrong, and tho points were taken rip. There was no particularity in the information as to the curves. The lengths of the curves were not given, nor the places where they commenced and ended. There are fourteen curves on this list, and none of them alike. Undoubtedly this was part of tho work to be supplied for 2£ per cent. The information given in receipt B was not sufficient to enable me to construct the engine and carriage sheds. I pointed out that the roof was defective in construction and strength. I made a design of my own, which I submitted to Mr. O’Neill, and he approved of it. There was no information furnished as to the mode of construction of the engine pit. [Contract for the construction of the tramway handed to witness.] This is what is called the contract, specifications and drawings, but not working drawings, for the construction of the tramway. This is tho contract for the work for which Mr. O’Neill was to furnish me with plans, working drawings, and all other information I might require during the progress of the work. Shortly before my tender was accepted, Mr. O’Neill sent for me, and I went up to bis house. Mr. O’Neill told me that Mr. Macdonald wanted a schedule of prices to be inserted in the contract before it was accepted. The contract was to he finished in 18 months- I supplied schedule prices, as required. As I was leaving the room Mr. O’Neill asked me to give him some money on account. X said it was an unusual thing to do, that I had never done it before, as the contract was not accepted. He said lie considered it virtually accepted. We came down to Mr. Macdonald, and I gave him the schedule of prices. I asked him if the contract was accepted, and he said it was. I then said “ You had better give me a letter.” Next day I received a letter accepting my tender. [Letter put in.] I gave Mr. O’Neill a cheque for £IOO after I left Mr. Macdonald’s office. He asked for it as an advance on what he was he was to receive, as he was in need of the money. Ho sent me in a bill, and I wrote him that letter in October, 1876. I referred the matter to a third person, and told Mr. O’Neill I would do so. The answer I was to give Mr. O’Neill was not a very polite one, and I did not communicate it to Mr. O’Neill. Mr. Davis was subsequently appointed engineer of the works. Mr. Davis employed Mr. Briscoe, a surveyor, to furnish detailed surveys of the line. I worked from these plans. Without them I could not have possibly proceeded with the work. These were the necessary drawings which Mr. O’Neill was to have supplied me with for the 21 per cent. About the Bth of January Mr. O'Neill came to the works in the capacity of assistant city engineer. If Mr. O’Neill had supplied me with the information contained in the drawings here I should have had no need to employ a man at £5 a week for nine months. A ganger would have been sufficient. Mr. O’Neill did nothing whatever after receiving the £IOO except to ask for more. I wrote to the promoters asking if they would furnish me with working drawings, as I had nothing to go on with. Mr.. Macdonald furnished me with the book produced. Mr, Davis superintended the work until it was completed. Cross-examined by Mr. Ollivier : I commenced the actual construction of the works about February, 1877. Mr. Henderson was acting as engineer. The letter appointing Mr. Davis is later than that. Mr. Davis took charge of the work before it was actually commenced. I have had a contract with Mr. George in which he has been engineer. I have contracted with Mr. George to pay him the usual engineering commission. lam not aware that I ever paid commission to Mr. George of 21 per cent. I have paid Mr. George 14, and 14 to all the architects in town. I never did any work for the Patent Slip Company. I have paid Mr. George commission for work done for tiie Gas Company. It was in the specification. I have paid commissions to other persons as well as Mr. George. Some architects send their bill with the drawings. That is Mr. Tringham’s practice. Sometimes T give a cheque immediately, and sometimes not. I don’t know that Mr. George has ever asked me for money forcommission. I don’t know that I owe anything for commission to Mr. George or anybody else now. I asked Mr. O’Neill one day for other drawings. He said the large drawings were his property, and he declined to give them up. This was after the work had begun. It was after that that Mr. Davis got me the tracings now produced. Mr. Davis is a clever engineer —perhaps there is not a better one in the colonies. Mr. Davis aave me everything I required. My own people assisted in the work. I had to borrow instruments in different places. The material came out to my order,, and was actually used in the construction of the line. My letter represents the contract, as I understood it, betweed Mr. O'Neill and myself., Isherwood was the name of the person I employed at £5 a week as an overseer. I had other works in hand at the time. Isherwood’s special duties were to lay put the line and assist at the levels. I gave Isherwood what ho asked. My present foreman gets 13s. a day. Isherwood was paid wet and dry. My present foreman loses all wet days. Tho tracings now exhibited in Court cost £5 pr £6. They were done by Mr. Briscoe. Re-examined by tho Hon. Mr. Buckley: I spoke to Mi*. O’Neill in the street about the large plans. This was after he was appointed as assistant city engineer. He refused to give them, saying they were his own property. Edward Villiers Briscoe, a surveyor in the employment of the Government, deposed to having made certain tracings for Mr, Davis. He charged £5 for them. Charles McKirdy, contractor, deposed that he had examined the drawings attached to the contract. They would not afford sufficient information to enable him to carry out the work. Enlarged and detailed drawings would be unnecessary. It would be impossible for any contractor to carry out the work with the drawings produced. If he paid 2J per cent., he would expect all necessary information, assistance, and advice in setting off curves, and checking the promoter’s engineer. Considered the detailed drawing produced m Court necessary. If the plaintiff had agreed to accept 24 per cent,, witness would expect him to supply the large plans produced, ns being absolutely necessary. By Mr. Ollivier: I have paid commission to architects, but never to an engineer; My general rule with architects was to give them their cheque for commission after the first or second progress payment. The commission I have generally paid is or 14 per cent., and for that I have been supplied with ail detailed drawings. John Laughton, examined by the Hon. Mr. Buckley; I was foreman for Mr. Brown at the tramway work, under Mr. Isherwood, I was employed for a long time on the North-wes-tern railway, and Lad a good deal of experience in railway work. I could not have gone on with the tramway without the detailed working plana produced in Court. By Mr. Ollivier : If the contractors did not specify the weight and design of the material he wanted, the manufacturer would not know what to send him. This was the defendant’s case.

The Hon. Mr. Buckley then addressed the jury on behalf of the defendant. Mr. Ollivier also addressed the jury on behalf of tho plaintiff, and His Honor having summed up, The jury returned a verdict for the plaintiff for £225. .

The Court adjourned at ten minutes to 7 o’clock until 10 next morning.