SUPREME COURT.

South Canterbury Times, Issue 5022, 1 June 1889, Page 2

SUPREME COURT.

SPECIAL CIVIL SITTING. TIMARU—FBIDAY, May 31st. Before His Honor Judge Denniston and a special jury, consisting of Messrs B. G. Stericker (foreman), E. Clissold, 0. B. Shaw, R. Foster, S. Clissold, W. A. Rose, M. White, C. G. Yogeler, James Campbell, W. Ferrier, and W. J. Huggins. The case for trial was a civil one—

W. J. Silcoeb v. Geraldine County Council, claim £754 12s sd, balance due to plaintiff as contractor for the construction of the contracts Nos. 2 and 3 of the Orari-ilangitata water races. Mr Joynt, with him Mr Hay, for plaintiff; Mr George Harper, with him Mr White, for defendants. Mr Joynt then explained the plaintiff’s case to the Jury “ as briefly as possible,” yet occupying some time. In the course of his explanation Mr Joynt said that the contract bad been very loosely drawn, and loose as it was, it had not been adhered to by the engineers to the council, whose duty it was to see that it was carefully adhered to. As an instance of the looseness of the contract, it was an odd thing to find provision made for “ painting and papering ” in a contract for water-races, but there it was—(laughter) —and there was no possibility of getting away from it. The contract required the engineers to peg off the lines of races, the contractor to assist them and provide the pegs. The plaintiff went prepared to do his share and took the pegs, but the engineers, after doing a little in that way, told him that as he was an experienced man they would not trouble themselves with these details. The plans and drawings attached to the contract were slated to be insufficient guides, and that contractor was to follow instructions given in the signed “ lists of work,” but no such lists were ever supplied. Casual instructions were given him from time to time by the clerk of works, and by the engineers on occasional visits, but these were not the instructions contemplated by the contract. Towards the endjthe engineers complained of the time taken over the work, and plaintiff would assert that all the extra time was required by the extra work necessitated. When the work was completed the engineers said they were not properly finished, and they estimate t the cost of making good the defective work at £45. Deducting this sum, they gave a certificate for a final balance of £l5O. Then the question of overtime cropped up, though not a word was said about it when the final certificate was given, and the engineers reported to the defendants, recommending that the contractor be allowed six weeks’ extension of time, allowed by the contract for extra work, and they advised the council to insist on the penalty for 22 weeks and 2 days. When plaintiff’s further claim was refused payment, he as soon as possible had the races most carefully measured by Mr Fooks, and this work took a party of four 11| days of 10 hours. Defendants engineers also “ measured up,” but as they only spent two days over 70 miles of races, the jury would be able to Judge of the incompleteness of the measurement. A month or two ago they had another measurement made, but ho contended that it was impossible to measure the races fairly a year after construction, owing to the action of the elements and of stock on the banks. Mr Joyut then called William John Silcock, contractor residing in Ashburton, related the various steps leading to his receiving the contract. He, however, never signed the contract. He produced the tracing plans supplied him by the engineers for his use; also letters from the engineers asking him to fix a time to meet them for the purpose of marking out the work on the ground. He fixed a time, August 27th, and met them at the Rangitata Hotel. Had a conversation with the engineers and he gave them his opinion that the races were not large enough to carry the water required. Mr Marchant agreed to make certain alterations in sizes, and marked the alterations on the plan. (Plan produced and marks shown and explained.) This was in the evening. Next morning the two engineers and witness drove by road to Cooper’s Creek to look at the site of a flume. They showed witness one or two pegs that had been put down there. Drove thence to where the race was to cross the Mount Peel-Geraldine road. He suggested that they should follow the race down and mark it out with pegs he had with him in his trap. Mr Meason said they could not get down for fences. Witness said they ought to put in pegs so that ho might know where the race was to run. They pointed to a cross fence 40 chains away and said “It runs to that fence, and you can find the way all right.” They then followed the road towards the railway, for over two miles. They then got out of their traps. The engineers had been there before and done some marking out, where the race had to zigzag. After that, said he would not go further. He would throw up the contract and forfeit the deposit of £4O, because the work was worth a great deal more than his tender, and would take six times as long to do than was allowed. They said he was Joking, and that as they had plenty of money, he should go on and do the Job, and they would make it all right. Had a further talk with them, and went on with them to other points of the race, A straining post was pointed out as one of the marks to go by. At another point was shown some pegs put in by Mr Meason, Drove to another point and was shown where the race was to cross another road, and then the engineers left him and returned to Timaru, about halfpast two. A few wooden pegs were put in that day in places that had been marked before with flax sticks. Saw lees than two miles of pegged race that day, all on contract No. 2. Did not go on contract No. 3 at all day. Never went on any subsequent day to peg out races. He asked them afterwards to lay out the race, and they said he knew more about it than they did, he could find his way well enough, and it would be only waste of tinje for them to do it. Small pieces were subsequently laid out by them. (Places shown on plan.) not more than six or seven miles were pegged out altogether, out of between 79 and 80 miles in the whole work. The tracings (40 chains to the inch) gave a general idea where ( the races were to go. Mr Radford was ap- J pointed clerk of works, and the engineers I iqfqrmed witness that Mr Bedford knew /

where the races were to go and he would show witness. Told the engineers when he met them that he was prepared to spend four or five days to peg out the race. Was never supplied with any proper “lists of works” by the engineers. It being now 1 p.m. the court adjourned for an hour. On resuming at 2 p.m. Plaintiff's examination w«s resumed. He bad no instructions until Mr Radford came to give him a start at the works, on No. 2 contract, the continuation of No. 1 contract, down to the railway, No. 3 going to the Orari. Had some other instructions. (Letter put in from Meason and Marchant, November Ist.) The reference to the race being 6 inches deep referred to No. 2 contract, and that to 9 inches deep to No. 3 contract. The letter referred to both contracts. Mr Badford continued to give instructions from time to time, He required that some of the work should be done over again. The engineers visited the works several limes. They required that the flumes should be relaid or altered on one occasion. This work had been done according to directions from Mr Badford. Hid not finish the contract by the date specified, having bad so much extra work to do which was not shown on the plan. The additions to contract consisted of extra embankments and excavations caused by the uneven nature of the ground. On the 24th February, 1888, had a letter from the engineers pointing out certain things which they required to be done, and witness attended to them. (Letter put in.) The various works mentioned were done to the satisfaction of Mr Badford. Beceived a letter on 2nd May from the engineers complaining that the races bad not been cut according to specification, and giving him notice to have the work carried out according to specifications. Produced statement of accounts from engineers relating to contracts, received 11th Juno ; also a letter of Islh June from Mr Stubbs referring to accounts. The council stopped £47 at the end of term of maintenance. Produced the book of instructions as received from Mr Badford, giving details of the various alterations which bad been made. The extra work done was very considerable, the valus of it being nearly as much as the contract price. He finished No. 2 contract on 3rd June, and No. 3 on the 3lst May, 1838, finally leaving the work on 4lh June. Mr Badford was aware that witness was leaving, and in conversation expressed himself as satisfied. Before receiving the final letters from the engineers, had left the work and gone home. The engineers never gave him an extension of time, nor allowed him six weeks on account of wet weather. Had seen from a report in the papers of the meeting of the council, that he was to get six weeks, but the engineers gave him no intimation on the subject. They did not say he was to get an extension of time for “ extras.” When the contracts were completed he had a communication with the engineers about “ measuring up ” the races. The engineers by letter agreed to meet him, but be did not go, because they, would not turn the water off to allow the measurement to be properly made. Had previously arranged with Mr Meason that the measuring up should be done by Badford and witness. (Letters from Mr Joynt to the council, and from the council to Mr Joynt, and council’s solicitor to Mr Silcock, put in.) No arrangements being completed with the engineers or Mr Badford about measuring, witness arranged with Mr Books and others to measure up on his behalf. The water was turned off seven days each time for the purpose. Altogether the measuring took about llfc days, the measurements including the whole of the race, embankments, excavations, etc. From this witness’s account was compiled,embracing the whole of the works. In February, before the work was completed, Mr Meason said Badford could measure the work with witness, but this was never done. Had some difficulty with the engineers about boulders in the fords, but as the work had been done according to directions, he did not alter them. Daring the 3 months of maintenance appointed a man to look after the races, and told him to obey any orders from the engineers or clerk of works. Never received any instructions during those three months. Produced a statement showing in detail the work done, both as per specifications and extras. In witness’ opinion the works could not have been perfect without the extras. Was a contractor of long experience and had always known that, in justice to contractors, such works as water races have been measured within a day or two of completion. The work was of such a character that continual alterations are going on, by the action of the elements, stock getting into races, and other causes. If the measurement was not done within a very short time, nothing like a fair measurement could be arrived at.

Witness was then cross-examined by Mr Harper. He pointed out on the plan where the alteration in width of races, as be bad suggested, had been given effect to. A discussion took place between His Honour and Mr Jojnt on the point, the latter showing that by the specifications the engineers could order the size of the race to be altered, and in the event thereof a deduction or addition made to the sum paid for the work on it being measured up. Witness continued: Began the contract where directed by the engineers, on the 22nd September. Had been told that there was no need to go over all the ground, as he was experienced in such works. Produced the book which Badford always showed him as containing the engineers’ instructions, and carried out this work in accordance with them. On commencing work had seven men in his employ. Bemembered receiving a letter from the engineers on the 10th November containing directions about the works: (Letter put in.) Witness then by the aid of the plan explained at length where the extra work in the construction of embankments and of excavations respectively had been done. At the time drew attention to this extra work. Had gone carefully into the items in the account referring to both contracts, and was certain they were correct. Had employed Mr Fooks and others to measure the race, because he had failed to agree with the council’s engineers about it. We sure that he had carried out the work according to the specifications and had attended to the directions given from lime to time by the engineers and clerk of works. Witness here again explained to Mr Harper with the aid of a diagram showing parts of the race, whore he had made the extra cuttings and embankments. He acknowledged receiving letters from the engineers that the work had not been carried out according to specifications, but contended that he had strictly carried out the instructions given him.

This closed the cross-examination. At this stage, 5.40 p.tn., the Court ad« journedtill 10.30 this morning.

THIS DAY.

The case was resumed at 10.30 this morn* ing when Mr Joynt asked the other side for his letter to them of 12th Nor., 18S8, asking for pay ment of plaintiffs account and threatening legal proceedings in default of payment, or of any reasonable proposal for a settlement. Plaintiff was then re-examined by Mr Joynt: There were only two or three miles of the whole of the races, of which the sizes, width, depth or both, were not altered according to his suggestion. It was difficult to lay down beforehand the size of water races. The cost of such a survey as would bo necessary would be greater than the cost of making the races. In railway works of course such a survey is made. Mr Meason told him he thought the council would forego the penalties but would expect him to pay the clerk’s salary, amount not mentioned. Interviewed the chairman of the council in May and asked for money, £l5O ; after the meeting of the Council was told he could have the cheque. "When he went over met the chairman and Mr Merchant, who said they were empowered to make an arrangement with him. They wanted him to sign an agreement before giving him the cheque. Mr Joynt asked for this agreement but Mr Harper said this was the first be had heard of it. The agreement was that he would pay £75 for clerk’s wages and that he would take no legal proceedings about anything that might arise in connection with the contract. He refused to sign this and they refused to give him the cheque. (Minute of the council recording this put in.) Plaintiff was then examined as to details of the races, excavated and ewfeaqfced respective^.

On. Mr Joynt sitting down His Honor obtained from the witness particulars of the alterations made in the races in contract No. 2. In contract No. 8, witness said the races called distributing races were to be of two classes but which was nerer pointed out to him, and he made them all first class. Alfred Nooks, of Nooks and Son, engineers, Ashburton, examined by Mr Hay, stated that he was engaged by plaintiff, to measure the work in the races. Had had about ton years experience in such work. Assisted his father in his professional appointments as engineer to the Ashburton Borough Council and two neighbouring road boards. Had two assistants in the measurement besides Silcock. The whole length was chained, and widths and depths measured generally about every half chain where there were any variations, where there was no variation less frequently. (Drawing of specimens of contours of ground met with, put in and explained; also plans ’with sizes of various sections of the races noted ) The widths as a rule exceeded, those specified, but (here was one exception in contract 2, where about three quarters of a mile of race was a trifle too narrow at the top, though of

proper width at the bottom. That was the .onlyplace were there was any deficiency. A List of witness’s tabulations from his field notes, and abstract from those, showing total lengths of various sizes of races put in and sworn to as correct. The tables gave data from which the amount of the excavations and embankments respectively could be calculated.) Was. engaged 11 days, not less than 10 hours a day, in measuring the races ; did not think it would be possible to do it in much less time. In some places embankments were injured by stock. In fairness to the contractor measurements should be made as soon as possible after the work was finished. A measurement a year after could not be fair. The excavation at fords, which were rather numerous, was measured. Did not measure any concrete work.

Cross-examiued by Mr Harper: It was rumoured that the engineers took only two days to measure the races ; it would be absurd to suppose that they could do it in that time. Had not seen their account of their measures as sent to plaintiff * knew nothing of their results before going out himself. Had nothing to do with the prices or making out the account for Silcock. A first account made out was erroneous. It made the length of Sft races 751 chains ; the amended account was for 397-f chains. The error arose in adding up the tables, by running on into the Ift 9in races, not stopping at the end of the Sft. This error had been discovered and rectified ; the length of the Sft race reduced and that of the smaller race increased accordingly. (Mr Harper : The account shows 2021 chains of Ift 9in. at 2s 4d that ought to have been Is 9d). Knew nothing of the account. Made the amount of extra excavation in deep ground, 2936 cubic yards. The defendant’s engineers made it 1200 yards (as shown by account put in). Gave bis father the measurements, to calculate the quantities from. Believed the space of the race, 9 inches deep, was not included in the amount so calculated. Pointed out to his father that it should not foe included. There we/e many parts af the race formed by embankments, and witness’s father made the total amount of material in the embankments 3612 cubic yards ; defendant’s engineers made it 1800 yards. Gave his father the total measurements, and believed his father allowed for the depth of the race (i.e. for any scooping where only partial embankments were needed). Knew Tarboltom’s race, 11 chains, measured it as part of the contract; did net know that it was not. The engineers made the excavation in fords 125 yards; from witness’s measurements the amount come out at 1086 yards. The gravel used at the fords was calculated by Mr Nooks at 341 yards ; by the engineers at 190 yards. Did not double the measurements by measuring the fords in with the races. Did not think a fair measurement could be made now to test the accuracy of an early one. The tendency of races is to contract in size. Vegetation grows on the sides, and catches silt.— (Mr Harper : Could you not dig through that to the original side of the race ?) —In places it could be done ; in some places scour might take place. (Mr Harper : Well, that would be in favor of the contractor.) Re-examined by Mr Hay: Calculated a few small embankments on the ground, to save confusion. There were not many cases where there was spoil from the race in an embankment, and these cases he calculated on the ground, and made allowance for the scooping. Understood that Mr Silcock supplied the quantities of gravel put on fords. The engineers total of excavations for fords, 125 yards, was certainly too small. J Plaintiff recalled by Mr Joynt: Fad kept exact memoranda as to the quantity of the shingle used in the fords; thought it was 341 on No. 2, and 156 on No. 3 contracts. To Mr Harper: Records were kept as the work went on by the men employed. The statement produced was not made up just before coming to the Court. Charles Edwin Nooks, to Mr Joynt: Was a civil engineer of 30 years experience. Was accustomed to earthworks. Checked the tabulations from his son’s field books, and calculated the quantities of work done. Took account of the contract sizes of races in order to deduct their content from the gross content of the excavation. Had similarly dealt with the embankments. Could swear to the calculations. (Abstract of dimensions, and cubical contents put in.) The contents of embankments in contract 2 were 3612.5 cubic yards, in contract 3 were 33833 yards, and in Newland’s race 161.4 yards. Allowance had been made in nil cases in embankments, for material scooped from the race. Witness fixed the price to he charged for the Ift 9in race (a size not included in the original contract) by taking the same price per cubic yard of the contents us was scheduled for the Sft race, a trifle over 4-Jd per cubic yard. That was the mode provided by the contract for the calculation of altered sizes. To make a fair measurement did not think a man could get over more than five or six miles a day. It was absolutely necessary to make all the elaborate calculations witness had made in order to obtain correct results. Measurement ought to be made as soon as possible after completion of such works.

The court adjourned for one hour afcl p.m.

assembled in the body of the Court; and | there was such a laugh as has seldom been I heard before within the walls of a magistrate’s ' court.