RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 9565, 22 October 1892, Page 6 (Supplement)

RESIDENT MAGISTRATE'S COURT.

Friday, October 21. (Before Mr B. 11. Carew, R.M.)

Allan Johnston v. the Tflhuna Park Kecreation Company.—Claim L 39 2s 4d, work done and material supplied.—Mr J. V. M. Fraser appeared for the plaintiff, and Dr Fitchett for defendants.—ln this previously-heard case his Worship gave judgment as follows : —

I think Mr Hutchison and Mr Hogg have been misled in basins their calculations on the breadth of the new track being 12ft. Mr Park was the only witness who could give the measurement accurately, as he measured the original track, and on that-measurement the plaintiff was paid for his first contract. This error, however, accounts for only about 21yds in the different estimates. It certainly is a difficult matter to arrive with exactitude at the cubic measurement of the thin layers of clay and rock spread at irregular thicknesses. Practically, an approximation is all that can be arrived at. It has been suggested that measurements made for the plaintiff were taken too close to the old track,

but this has been denied ; and on the other side it was said that the sand formation under the clay arched in the ceul-ro, making the depth of clay loss in tho centre of tho new track, where the defendants' measurements were taken. This statement has not been verified, nnd no doubt any two honest and independent measurements taken at different points might differ a good deal. Without evidence of all the details of the several measurements, I cannot see how it is that the results differ so much. There

is no reason to think that the experts on cither side have acted unfairly, and the measurements of each having been taken at different points along the course may possibly account for it. The greater the number of measurements fairly taken •the nearer the results should be to the true measurement. I llnd that after allowing for the error as to the width of the new work, and then taking the mean of the measurements of the five experts, that the result gives nearly 559 cubic yards. The defendants have paid into court for 590 cubic yards, awl, as far as I can see, that is sufficient. In respect to the supply of rotten rock, the plaintiff has tendered no evidence of measurements on the track, but relies upon the number of dray loads and measurements of two loads. The contract contemplates measurement on the track. Taking .the mean of the three measurements of the track by defendants' witnesses, sufficient has been paid into couit. The other item is for cinders. Eighty-one yards have been measured I up, and the payment into court covers that quantity, but plaintiff claims for six yauls delivered, but not measured. The amount involved (8s) is doubtless disputed in consideration of the question of costs, aud not on account of any doubt a3 to the measurement. It has been recognised all through the contract, with this exception, that plaintiff should prepare the cindorj for measurement. In this instance plaintiff omitted to do so, but the defendants' man in charge of the grounds liacl used a portion of them in the course of his employment. I think, under these circumstances, the plaintiff has a right to recover, bub as he has failed in all the other items, in respect to which the defendant company have been put to considerable expense, and tender'of the amount paid into court is admitted, Be should have no costs. Judgment for Bs, in addition to the amount (L 24 (is id) paid into court.

George Marchant v. James Gilmour.—Claim LIOO, damages sustained by plaintiff through the alleged negligence of defendant. —Mr Praser appeared for plaintiff, aud flic Fraser for defendant.—lt was stated that this case had been previously heard, aud judgment was giv.en fbi plninbiff. for L6O and costs. Defendant appealed,- and the Supreme Court sent the"case back to' the Resident Magistrate's Court for rehearing.—lt was agreed to take the rehearing on Wednesday next.