SUPREME COURT.

South Canterbury Times, Issue 5023, 3 June 1889, Page 4

SUPREME COURT.

SPECIAL CIVIL SITTING. TIMARU—SATURDAY, June Ist. Before His Honor Judge Denniston and a special jury, consisting of Messrs E. G. "Stericker (foreman), B. Cliasold, O. R. Shaw, R. Foster, S. Clissold, W. A. Rose, M. White, C. G. Vogeler, James Campbell, W. Ferrier, and W. J. Huggins. W. J. Silcock 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-Kangitata water races. Mr Joynt, with him Mr Hay, for plaintiff ; Mr George Harper, with him Mr White, for defendants, In the afternoon the examination of Mr 0. E. Fooks was resumed. The excavations for the fords would average from 30 to 36 yards, and Is a yard was charged, a very moderate price. Did not understand Messrs Meason and Marchant’s statement of 125 yards “above gravel” and 100 yards “ occupied by gravel ” in the fords. Cross-examined by Mr Harper : Had had his attention drawn to the clause in the contract that alterations in the specified sizes of races were to be paid for in proportion to increase or decrease.

Mr Harper pointed out that witness in charging for the Ift 9in races enlarged from Ift Sin, had not worked up from Is sd, the price of the Ift Sin race, but worked down from 3s 3d, the price of the 3ft race. The difference was 7d per chain, and there were 2020 chains of 1 ft 9in race.

Witness stated that most of the Ift 9in races were substitutions for 3ft races, not for Ift Sin races. There was a provision in the contract for extra depths to get a proper grade. (Witness then explained the manner in which he had made the calculations to arrive at extra excavation). Deducted from the gross contents of the excavation and gross contents of the contract race in excavating ground. There wai a considerable difference between the witness’ and the engineer’s calculations as to the amount of extra excavation. Could only suppose defendants’ engineers had not measured the work properly In respect of the embankments made no deduction for evcavation, nor allowed for any filling in, thinking one would balance the other. In many cases this sort of formation was separated and calculated on the ground by his son. Witness’ son gave him all the data for caeulations and also for making out the plaintiff's accounts, except that Mr Silcock gave him the quantity of shingle. Mr Joynb questioned the witness as to the •ratio in which he had charged for the Ift 9in r.cos. He had calculated down from the price for 3ft races, because those races were originally 3ft races. Mr Harper stated that they were first reduced to Ift Sin and then increased to Ift 9in.

His Honour remarked that this introduced a very nice point which must be considered later on.

W. Shiers, overseer to the Geraldine Roud Board for 11£ years, examined by Mr Joynt i As a rule gave a contractor notice that he wouid measure up j would expect the contractor to be present or represented at the measuring. Had always measured up as soon as possible. Early measurement would be in favour ot the contractor. A measurement 11 months after such work as this was done must be unfavourable to the contractors. It would have been a difficult thing to give, beforehand, the levels for a work like these races. Had himself measured up in the absence of a contractor (as was done in this case) when the contractor failed to keep his appointment. Would not have undertaken this work, as a contractor, without more guidance in the shape of direction pegs ; the contractor must lose time in feeling his way along. Had had a good deal of experience in the making of fords ; £4los would be a fair average price for them; and about 20 yards of shingle would go to each. Cross-examined by Mr Harper ; Witness’s practice was to give an uneducated contractor bis measurement, and let him have them calculated elsewhere if he chose. Had always been prepared to give and take a little. James Quigley, contractor, Ashburton, examined by Mr Bay, said he had constructed over 300 miles of races such as these, in Ashburton and Selwyn. Such work ought to be measured up, in fairness to the contractor, within a month after completion. Had never started a mile of race without having it pegged out; otherwise he might put the race in the wrong place and lose the work. Some one must peg out the ground, if not the engineer then the contractor. Had been paid £4 10s, and £5 .each for race fords, more at £5 than £4 10s, Joseph Harris, labourer : Was plaintiffs foreman on contract No. 2. Received instructions from Mr Silcock and from Mr Radford. Did everything Mr Radford required to be done. When the contract was finished Radford said to witness, “ Well, old fellow, you have a lot of this work to do over again.” A little later Radford said that a manwithja pick and shovel could put everything right in a few hours, and witness concluded that he was joking when he first. spoke. Was there when the engineers went ■ to measure up. They went up one race and Radford up another, and were not long away. Witness remarked that they had not been long about it. When contract No, 2 was finished Silcock asked if there was anything more to do. Mr Radford said he did not

know of anything except a few shovelfuls in Dennistoun’s out paddock. Mr Silcock said, “ Because if there is anything more, now is the time to do it. I am going to take the teams home in the morning." Heard Mr Eadford and plaintiff arrange to measure up together, about a fortnight after the work was finished.

Cross-examined by Mr Harper: Deed to receive instructions verbally from Mr Eadford. Plaintiff was not often there. Silas Webb, labourer, was on the job three or four months at the end ; on contract No. 3. Assisted at Mr Fooks’ measurement, and could say the measurements were carefully made. Lived beside the race, and had not seen the engineers measuring the race. To Mr Harper : There was no 1 foot race made. Could not say why there was not, — whether it was because they had no 12-inch scoop. J. Capstick, labourer, employed on No. 3 contract, bad heard Mr Eadford say that he and Silcock were going to measure up. William Chute, a carpenter who was employed on the contract, was examined as to construction of gauge-weirs, flood stops, &c., and the prices charged for them. W. Legerwood, labourer, South Bangitata, was on the job, and was engaged at the conclusion to do any work when called upon by the engineers or Mr Eadford. Did some work at Ford’s, but that was for the council. The engineers knew of his engagement. To Mr Harper : Mr Silcock told me so. Was not paid anything by Silcock for the three months.

A. Fooks, recalled: From -an inspection of the races would say that they were taken along economical lines. They had not been cut through hummocks and carried over hollows which could have been easily and economically avoided.

Plaintiff, recalled : After receiving a statement of his account from the engineers, complained of it to Mr Marohant. The latter said he would not measure the work. They had been over it and had made him ample allowance. Offered to test Mr Marchant’s estimate for some small section by measurements, and if the estimate was correct he would accept Mr Marchant’s figures for the whole. Mr Marchant said he would have no such thing, and if witness was not satisfied he could do as he liked. This was in the engineer’s office in Timaru. To Mr Harper: Their statement requests you, if you noticed any omissions, to inform them. Did you inform them of what you thought under-estimated ? Witness: There were so many things omitted that I could not do it. Had tendered for another work, the Seadown races, under Messrs Meason and Marchant. According to the newspapers was the lowest tenderer in one case but did not get the work. Mr Joynt asked for the production of the first amended statement of defence, filed April 17th, in which the completion of the works was admitted, and the amount due to the contractor was admitted to be £IO3O, instead of £9OB as in the later statement.

Mr Harper objected to this document being used, it had been superseded by another amendment. His Honour said he could not agree that the statement could not be referred to by plaintiff’s counsel. This,concluded plaintiff’s case. Mr Harper then explained to the jury the chief lines of defence. The defendants had a good nonsuit point in the fact that the plaintiff’s claims on the defendants were, according to the contract, to be dependent on 1 the certificates of the engineers, but this defence could not be made use of because the engineers’ certificates covered a larger amount of money than had been paid to plaintiff, so that, unless the defendants had a right to inpose the penalty for exceeding the contract time, there would be something coming to plaintiff The defendants, however, claimed that right, and if this were allowed then the plaintiff had been overpaid. The engineers had certified that the plaintiff had earned under his contract £9OB ss, and to this was to be added £4O, the contractor’s deposit to be returned, or £948 5s altogether. Plaintiff received £630 in progress payments,leaving £3lB. The engineers, after consultation with the council, decided to compromise the claim for penalties by deducting on that account the amount ot the wages paid the clerk of works during the extra time, £75. There were also to be deducted £45, the cost of completing incomplete worts, and £47, the percentage of the contract price to be retained during the period of maintenance by plaintiff. Deducting these the engineers gave a final certificate for the payment of £lsl. Putting aside the question of the right of defendants to insist on the penalties, the issue narrowed itself down to a conflict of testimony with regard to measurements of the work actually done. Messrs Meason and Marchant could state that they were given a great deal of trouble and worry from the way the contract was protracted. They would state that in June 1888, before they made up their final account, they went out and measured the work, spending 13 days in doing it. The other side assumed that the engineers made only a hasty and imperfect sort of measurement. They would now be told that the engineers and Mr Badford spent no less than 13 days in making the measurements upon which they based their statement of accounts. At the beginning of the present month (May) another elabotate and careful measurement was made by Mr Smith, a licensed surveyor, who devoted a still longer time to it, and it would be seen that the results of his measurements —making every allowance for alterations in the race through lapse of time—verified completely those of Messrs Meason and Marchant. How the wide discrepancy arose he would leave to the engineers to say, and ho thought they would be able to explain it. That discrepancy in the measurements made all the difference in the case. Mr Harper concluded with some further remarks on the right of the council to exact the penalties for exceeding the contract time.

A discussion then to -k place between bench and bar on this subject, in the course of which Mr Joynt said he would ask His Honour to rule that the engineers were bound to give an extension of time because they altered the work. His Honour remarked that the conditions were not so clear as they ought to have been, 'they wore worded so as to make the engineers’ certificate final as to the completion of tbo work, but not final as to the amount to bo paid. Their final certificate was to “entitle the contractor to receive the balance of the value of the work executed,” but it was not stipulated that it should at tho same time fix the amount of the balance.

The court adjourned, about 5 p.m., till 10.30 a.m. this (Monday) morning.