SUPREME COURT.

South Canterbury Times, Issue 5025, 5 June 1889, Page 4

SUPREME COURT.

TIMARU—TUESDAY, June 4th,

Silcock v. Gebaldine County Council. His Honour took his seat at 10.30 a.m. Before His Honour Judge Denniston and a special jury, consisting of Messrs E. G. Sterickor (foreman), E. Clissold, C. R. Shaw, R. Foster, S. Clissold, W. A. Rose, M. White, C. G. Yogeler, 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-Rangitata water races. Mr Joynt, with him Mr Hay, for plaintiff; Mr George Harper, with him Mr White, for defendants.

Mr Harper said that after consultation between His Honour and counsel the questions to go before the jury had been narrowed down to this issue : - What is Silcock entitled to recover over and above what the council has admitted be is entitled to receive, the questions of extra time and penalties being questions of law, having been reserved for argument hereafter. He had prepared careful tables to lay before the jury, and these showed that the council agreed that Silcock was entitled to receive £lOl2 6s 3d. Against this was to be set a certain amount of deductions, one including a claim of £ls for maintenance, which he understood bad been admitted.

Mr Joynt said no ; he had never admitted this claim.

Mr Harper then recalled F. W. Merchant who said that the £ls had been charged for ranger’s salary and maintenance for three months, rendered necessary by Silcook’s neglect. To Mr Joynt witness said that £ls had been paid for ranger’s work, and £7 on the fords and other works. In thus claiming the £ls they had made a liberal reduction. Mr Harper then continued his address. He would deduct the £ls and another sum of £45 for defective work, making £6O altogether, and taking this from £lOl2 6s 3d, the balance left was £952 6s 3d. Then deducting the sura paid, the difference in dispute amounted to a sum at present of £2ll 5s lOd, which the council admitted was owing to Silcock over and above what had been paid. Then the penalties with which the jury would have nothing to do, amounted to £267 18s 6d, and deducting £2ll, if the penalties were sustained, a sum of £56 12s 8d was left in favour of the council. As against this, however, a sum of £l2 2a 3d was allowed by the council for extra cost of one portion of the race, and deducting this even yet a sum of £44 10s was left to the council. Mr Harper said that from this the council contended that nothing at all was due to Mr Silcock on this contract—that the whole amount said to be owing to him would be more than absorbed by the penalties, if they were upheld. Mr Harper then addressed the jury with reference to the case generally, quoting largely from the conditions and specifications of the contract, and from the evidence, closing his address at 1 30, at which time the court took the luncheon adjournment.

On resuming at 2.30, Mr Joynt first of all dwelt on the evidence respecting the marking out done by Meason and Marchant, and contended that they only pegged out 6 miles of the whole 78 miles of races. For all the good, in fact, that Meason had done in his survey, he might as well have mounted a thoroughbred horse and scampered over the ground. The conditions stated that the whole of the works must be marked out from beginning to end, and this had not been done. His client had in evidence said he complained of this not being done, and this had been corroborated by Radford. It was shown fully that, the engineers had shirked their duty in not pegging out the ground, and by this had greatly inconvenienced and delayed the contractor in his work. As one instance of this he pointed out the mistake that had been made at Badham’s, due to the ground not .being pegged out. The whole thing showed that if the engineers were competent men, they had, to say the least, taken things extremely easy, and had shown a considerable

amount of laxity. He would show this from the evidence as led. Speaking of the measurements he claimed those that made by Foots, jun., were the most accurate, the whole of the race having been carefully gone over from end to end by him. Mr Joynt then went over the accounts and tables as put in, pointing out the differences in each. Coming again to the measurements, Mr Joynt said that it was not at all fair for Meaaon to ask Siloock, while very busy with his work, to let him have two men and himself to measure up as the work proceeded. In refusing to do this Silcock had acted quite rightly, for by his contract the work was to be measured at the close and paid for accordingly. Mr Joynt would go so far as to say that through the engineers going behind Silcook’s back the measurement was not one at all—they should have given Silcock notice of it, hut they did not do so. On the other hand bis client had given them notice by letter that he was about to measure up and invited them to attend. As to the deductions that Mr Harper had named, Mr Joynt contended that they were in error. The council had no right to charge Silcock for the ranger’s salary or for putting broken metal in the fords. In closing Mr Joynt submitted that he had made out a strong case, and was quite willing to let it go to them on the issue agreed upon. His Honour having shortly directed the jury, road portions of the evidence given by plaintiff, and that referring to remeasurements, and in order that they might the more easily understand the case, gave them written particulars of how the claim was made up, copies of the council’s accounts on contracts 2 and 3, and the tabulated results of the respective measurements of the race. As agreed upon, the case had been stripped of its law points, the simple question for them to find upon being: What amount is the plaintiff entitled to recover beyond the sum—£74l Os 4d—already paid to him, and the sum of £45 admitted by the defendant counoil to be due to him.

The jury then, 4.40 p.m., retired, and were recalled at a quarter to five. In reply to His Honour, the foreman said that they had not yet arrived at a decision. His Honour explained that he desired to catch the express train for Christchurch that evening, and if counsel concurred, he would leave the Registrar to record the verdict. Counsel agreed to this, and His Honour then retired, the jury once more going to the room. After an absence of 15 minutes they came into court with a verdict for plaintiff for £466 10s 6d, this being contingent on the result of the argument which ’is to be taken in Christchurch on the question of penalties and other law points. The special sitting of the court closed at 5.10 p.m.