THE OTAGO DAILY TIMES FRIDAY, APRIL 12, 1907 THE POWER CONTRACT SETTLEMENT.

Otago Daily Times, Issue 13875, 12 April 1907, Page 4

THE OTAGO DAILY TIMES FRIDAY, APRIL 12, 1907 THE POWER CONTRACT SETTLEMENT.

The determination on the part of the City Council to devote a special meeting next week to the consideration of Messrs Noyes Bros.' claim for commission on the engineering work performed by them in connection with the Waipori installation is unquestionably, in view of all the circumstances, a wise and prudent one. The settlement is plainly not one to be effected in any off-hand fashion or without careful scrutiny of the various items of tlic claim and an equally careful investigation of the obligations entered into and the commitments made by the Corporation. On the one hand, there is the acknowledged fact that the ■amount of the expenditure upon which Messrs Noyes Bros, claim commission is largely in excess of the amount c-f £45,672 that was, as they undertook, to represent the total cost of the work. Further than that, it is clear that in their contract with the Council Messrs Noyes Bros, agreed that no commission should bo payable to them in respect of any expenditure over and above the amount specified. On the other hand, it is quite evident that the expenditure in excess of the sum of £45,672 was largely— we may go further and say chiefly— incurred under the authority, whether expressed in the prescribed legal form or not, and at the request of the Council. The question which is in issue is whether there is any liability on the part of the Council, in tho absence of any specific contract on the point, -to pay commission on the excess expenditure and whether, if there be no strict legal liability, Messrs Noyes Bros, are noton the merits of the case entitled to receive the commission they claim, or some proportion of it. So far as the work that was executed in ternis of the original arrangement is concerned Messrs Noyes Bros, cannot successfully contend that any commission is due to them upon any expenditure in excess of the sum for which they undertook to complete the work. The City Council is advised to this effect, nor can there, we should think, be any doubt whatever with respect to this particular aspect of the matter. The difficulty arises in connection with the work which, while it was not covered by the terms of the contract, was executed by Messrs Noyes Bros, on behalf of the Corporation. The opinion of the city solicitors is that a claim could not be successfully maintained at law against the Council for commission on the cost of this work. And if commission'is ■ not legally recoverable, it is objected by some of the councillors that they may expose themselves to the risk of certain pains and penalties in the event of their party to any payment to Messrs Noyes Bros., even i if it be in the nature of a com-

promise,, on account of the extra work. The objection is a legitimate one if it is based upon a bona fide fear that jfche councillors who acquiesce in the payment of the claim, or in a compromise involving the payment of commission upon any expenditure in excess of the contract sum of £45,672, may render themselves personally responsible. On the other hand, it is paltry and shabby if it is raised merely ag a cloak under which an attempt, .prompted by a feeling of animosity towards the contractors, may be made to prevent Messrs Noyes Bros, from receiving 1 any payment in respect of what may be admitted to be a, meritorious claim. Wo shall not pause to inquire whether the objection is really legitimate or illegitimate, bub, having regard to the somewhat complicated character of the transactions between the Corporation and Messrs Noyes Bros., we do believe that Mr MacGregor, of the firm of city solicitors, expressed a sound view on Wednesday when, iii answer to a question on the subject, he said he thought there need bo no fear of the individual councillors being held to be responsible if a compromise should be effected. The dominant feeling on the part of the community must, we are sure, ba that it is entirely desirable that the settlement should be an honourable one. There is 110 reason whatever why it should be a generous settlement 011 the part of the Corporation, but there is every reason why it should be a fair settlement. The attitude that was taken up by the majority of tlie councillors who spoke on. Wednesday night must be held to have been quite reasonable. Councillor Brinsley took tlie view that, " after resolutions had been passed by the Council time after time making deviations from the original contract and giving instructions to Messrs Noyes Bros. to alter the contract, the Council should certainly pay for the work that had been done." Councillor Gore does not agree. that the work that was executed outside the terms of the contract represented, as Councillor Brinsley suggests, a modification of the contract: it was, lie says, a case; of additions to the contract, and "these additions the Council had sanctioned." But whether the work was in modification of, the original contract or supplementary to the work which was provided for in the contract, it ia perfectly manifest that, if it was authorised by the Council, Messrs Noyes Bros, have an equitable claim upou the Corporation for commission in respect of the expenditure upon it. Councillor Walker put 'the matter very well when he represented to his colleagues at the Council table that "for work done, and well done, they, as honourable men, wero surely entitled to give fair remuneration." That is certainly, the proper, not to say honest, view to take of the case, and we caniiot doubt that the view expressed by Councillor Walker will commend itself to the judgment of the majority of the Council as being that which should bs adopted. As to the lines of an equitable compromise, such as may have tlie effect of averting' litigation that would assuredly be expensive, the Council, in the capacity, as Councillor Arkle emphasised, of trustee for the public, is in the best position to decide. Certainly tlio public) cannot desire that any injustice should be done to Messrs Noyes Bros, in the settlement, While it is necessary that the interests of the city shall be adequately protected, it is also necessary that a spirit of fair dealing with the contractors shall be shown. And if these requirements are observed, we .cannot suppose that an adjustment that would be satisfactory to both parties is not readily to be arrived at.