SUPREME COURT.—CIVIL BUSINESS.

Otago Daily Times, Issue 286, 19 November 1862, Page 5

SUPREME COURT.—CIVIL BUSINESS.

Tuesday, November 18. (Before liis Honor, Mr Justice Gresson.) The Court sat at ten o'clock^ LUBILHY USDBR a BUJLDIKG CONTRACT. + -^ l wC-^ AINJ' bvwov.-Mv oillies for the plaintiff Wioiaui Ai a cilwa.u, builder; and Air Haggitt (instructed by Mr Kenyon) for thedelendant, Thomas JNorton. '

i he claim was for 1.C3 balance on a contract for buidmga house (labor only) iv Walker-street. The declaration alleg da contract,-on or about the 10th January. 1862, to build the house lor L9j; that the works specified had been done, and also additional K St r °,n c i' a -nc °f L! 8; "nd thilT the defendant had paid LbO on account. The pleadings set torththe contract, which contained a provision t'Ynt t- c woik was to be done iv four weeks frem the date of the signing of the contract, the penalties being , 5 for the fi.-st week in excess, and L 3 for each subsequent day lime was to be allowed for. alterations or Lad weather. The main plea was that, not having compkted the work within the specified time there was no iimount a elue from the deienuant to the plaintrir. x

From the form of the pleadings the defendant bad first to proyphis ca-e, and alter an opening statement by Mr Gillies, Mr Hacrgitt called Oeorgß Greenfield, who s>.id he was architect for the def ndant s house. The certificate produced was given by him to the plaintiff. It. stated t-'-at ten weeks bejond the contract time had been occupied on the works, but that tour weeks were lairly allowab'e for extras, &c so that the actual .ime in excess wils six-weeks, fhe work was done to his satisfaction. By Mr Gillies: He was not awarethat any time was lost bythe delendant through waiting for material lie renumber, el the plaintiff stating th.it he would have to stop fur materials; but there were plenty on the gromiu at the time tbe aWe film to work on . Mr Giihts submitted that tho plaintiff was entitled to veruu-.t on the pleadings. It was set up that there was no indebtedness on the part of defendant because the works were not concluded in four weeks from the signing .of the contract; but there was no date on the contract, and there could not be time iv execs where there was no date oi commencement. Beyond that, liou completion withiu a specified fine was not sufficient ground of defence. Time was not the eeseiiee ofthe contract. Excess was contemplated and penalties were set forth ; but even t ose penalties eouiu not be pleaded as a set-off, the remedy heine a cross-action tor the amount. {Holmes and Othe>t\ JDuckersand Another.) AJr Haggitt replied, contending that the jury were at liberty to find that the work was not completed withm the contract time, ami that the plaintilt was, therelore, not entitled to anything The Judge said he must rule that tile plaintiff having proved that he had comph ted the work and the defendant being precluded by ihe pleadings from betting up the defence that certain penalties we c claimed, and that J c had a ri lit to set them off the planum was eueitl. d to a vereiict. ' Verdict foi Lb3, the amount claimed. ANOTHER BUIL: IKG DISPUTE. DUTCH V. RED RATH. Mr Gillies for the plaintiff; Mr Johnston and Mr Baton tor the detenuaur.

The plaintiff, George Dutch, is a carpenter and builder; and tne defendant, Robert Rwlpath, is a settler on the Maori Hiil. In October, 18-4, th* defendant appli d to the plaintiff to make an addition to his house ; and the question in the ease was as to the arrangement when conclud. d. The plaintiffsaid that thtre was nothing like plan, specification, or contract; but that, gathering as well as be could what tin- defendant wanteel, he (the plaintiff) said that the cost might be LSO more or less, and that he would do all aseconornica.ly as possible Irstead ot bein-rallowed to do the work at Lis i isure, us was at first, understood, the p'aintiif yieeled to the pressings of the defendant, and pusned the work forward • anel this addeei to the <ost all the more, because of the di>covery of the gold fields, wliich rendered labor anel material scarce and dear. The amount claimed was Llo7 ; but admit ed payments for board and lodging, and a payment iuto the court reduced the sum in dispute to L 47 9s 4j.

In his crobs-, xamination, the plaintiff said that although he was to do the work in his over hours, he being foreman for a bulkier and timber dealer, he received L2O on account before he began work • but he could not say that he knew of any other such'payment in a case of daily work, the advance was made for the purchase of timber. Thomas Winchester, builder, said he had carefully examined the whole ofthe work in question ; and he estimated it value, as done in November last, at Ll 10.

William Wilson, builder, placed the value between LllOa-d Lll3.—Bv Mr Barton : Some ofthe woik was very inferior, and the real value would, therefore be a few poanels below LllO. The defence, according to Mr Johnston's statement and the evidence of the defendant, was that what the defendant wanted was an addition to his house of two rooms 12 feet by 12 feet, and some alterations The plaintiff made calculations, and then sard that LIS would pay him for the job and ihe defendant stipulated that it should be done in six weeks, to which the plaintiff consented, 'i hereupon the defendant paid over L2O, and the plaintiff uave a r cdpt. tor it "as an instalment fur the building of your house." Finding that nothing was done" for some time, the defendant pressed the plaintiff to begin; and later on. when the work was at a stand, Mr Alexander, a builder consented to take the iob in hand, and -de it at the^ original price, but the plaintiff refused to st nd aside. Subsequently, further work was agreed to at a cost of LlO, and the defendant agreed te? a«td L 2, so as to make a round sum of LOO for the whole. A second payment of L2O was made, and the plaintiff's receipt described it as a " second instalment;.'' There was also a payment of 15, aud a set-, if for board and lodging supplied to the pi am tiff, made the bidance due out of the LGO only . IO 10,whi-.;h the defendant had paid into court, den\ing any further liability. Robert Fenwick, huileler, said that he had made a valuation ot the new work at the defendant's house and he considered the full value to be LBS, supposing it was done at the beginning; of October, 1801. By Mr Gillies: The rate of wages and ihe price of timber continued to rise until the end of 1801. After an absence of half an hour, the jury returned a verdier.for the plaintiff: damage-s, L3i 17s 4. The Court rose ac ten minutes alter s.ven.