REYNOLDS V. NELSON HARBOR BOARD.

Colonist, Volume XLVI, Issue 10974, 14 March 1904, Page 2 (Supplement)

REYNOLDS V. NELSON HARBOR BOARD.

The action Reynolds v, Nelson Harbor Board, claim for £1651 103, for plans, specifications, supervision, &c, in connection with the Nelson harbor improvement scheme, was then commenced. 1. The plaintiff in his plaint sets forth that the Nelson Harbor Board employed him as a civil engineer to prepare certain working plans, drawings, and specifications, and to supervise constructon of the works included in a scheme of harbor works in Nelson designed by the plaintiff and called his No. 2 scheme. 2. The plaintiff entered upon the said employment, and for a long time supervised the construction of the said works, and in respect of the preparation of the said plans, drawings, and specifications was paid by the defendant Board the sum of £1450. 3. The plaintiff was hereafter required by the defendant to prepare further plans, drawings, and specifications, which were duly prepared and delivered to the defendant. 4. The construction of the works commenced upon the 2nd June, 1902, and thereafter continued under the direction and supervision of the plaintiff, who claims to be entitled to progress payments at the rate of £50 per month for his services as the defendant's civil engineer until his employment as such ceased upon the 17th October, 1903, or in the alternative for his supervision of such construction from the said 2nd June, 1902, to the 17th October, 1903. 5. The plaintiff with the knowledge and approval of the defendant employed an assistant upon the terms'that in the event of any delay in the prosecution of the works occurring through unforeseen contingencies salary should be paid by the defendant during such periods of delay at a rate not exceeding £50 t>er month. 6. The prosecution of the works was so delayed from the Ist February, 1903, to the Bth May, 1903. 7. The plaintiff therefore claims to be paid by the defendant Board in respect of the foregoing as follows : — (a) To preparing detail plans and specifications in order to enable tenders to be called for dredging a new channel and for erecting moles and other works in connection with ,the scheme— £loo7. j (b) To progress payments of £50 per month from 2nd June, 1902, to 17th October, 1903— £825. (c) Or in the alternative to supervising from 2nd June, 1902, to 17th October, 1903, the construction and supply of a dredge and other plant of the amounfc or value of £22,141 19s — £553 10s. (d) To detention of assistant from Ist February, 1903, to Bth May, 1903, in Nelson awaiting instructions from j j defendant to proceed with the works ! above specificd — £91. ; I The plaintiff amends his statement ! of claim (under date llth February, 1 1904) by adding thereto as & second i cause of action the following ; and for a further cause of action the plaintiff says: — 8. The plaintiff was required by the defendant Board as their engineer ,to prepare plans and designs for the carrying out of the work proposed by the defendant Board by day labor, which he did, and ail of which plans and designs were unnecessary if the work was to be carried out by contract and by means of contractors' plant. 9. The defendant Board subsequently determined to carry out the work by contract, and then required the plaintiff as its engineer to supply full plans, specifications, and designs for so carrying out the work, which he accordingly did. 10. The defendant Board have paid the plaintiff for one set of such plans and designs only, and the plaintiff claims from the Board the value of the work done by him as in the cause of action alleged either in respect of the first set of plans and designs or alternatively in respect of the second set of plans designs and specifications, and [also the value of the work done by the plaintiff for the defendant in the supervision of the contracts let by the Board for the construction of plant, and for the salary, travelling expenses, and remuneration of assistants employed by him in such workday the instruction- of the Board. The plaintiff claims under this cause of action alternatively and not in addition to the sums claimed in the first cause of action the sum of £1651 105. The statement of tne defendant Board sets forth — 1. It denies all the allegations contained in paragraph. 1 of plaintiff's claim, and says that its powers to enter into contracts are limited to the powers conferred by section 65 of "The Harbors Act, 1878," and that any such contract is to be made only in the manner provided by section 66 ofjihe said Apt) jand that no such '

contract has been entered into between the plaintiff and the defend--2.' As to paragraph 2 of plaintiff's claim, it admits that certain plans, drawings, and specifications were supplied to it by the plaintiff, for which it paid to the plaintiff thei sum of £1450, but save as is herein expressly admitted, it denies all the allegations contained in such paragraph. . ' 3. As to paragraph 3, it denies air the allegations therein referred to, i , and says that all plans, drawings, I ' and specifications received by it from the plaintiff were paid for by the sum of £1450. j 4. As to paragraph 4 : it denies all ' the allegations contained therein, and says, that the construction of the works therein referred to has not been commenced. 5. It denie3 all the allegations con^tained in paragraphs 5 and 6 of plaintiff's claim. The Board in its alternative defence states: — It repeats all the statements contained in the statement of defence herein, and says: — 1. As to paragraph 1 of the statement of claim, that if it is established that an agreement was entered into between the plaintiff and the defendant as alleged therein, the plaintiff has received all moneys to which he is entitled under such agreement. 2. As to paragraph 2 of the statement of claim, it says that certain plans, drawings, and specifications were supplied to it by the plaintiff, and he was paid therefor by the de- , fendant the sum of £1450, but that the constructions of the works contemplated by the defendant Board were not commence at the date of the commencement of this action, and that the plaintiff was not therefore engaged at the time on the supervision of the construction of such works. 3. As to paragraph 3 of the statement of claim, it says that the plaintiff undertook that the whole of the plans, drawings, and specifications required in connection with its proposed works should be provided for the sum of £1450 paid to the plaintiff. 4. As to paragraph 4 of plaintiff's claim, it says that the construction of the said works not having been commenced, the plaintiff was not entitled to any progress payment on account of his supervision thereof, and that as to the alternative claim for supervision, it says that the amount claimed by the plaintiff in respect of such supervision is excessive. 5. As to paragraphs 5 and 6, it denies that there was any delay on its part in the prosecution of the said works, and says that any such delay resulted from the act or default of the plaintiff. As to the amended statement of claim, the defendant says : — 1. It denies all the material allegations therein contained. 2. That it repeats that its powers to enter into "contracts are limited to the'powers conferred by section 65 of "The Harbours Act, 1875," and that no such contract has been entered into between the plaintiff and the defendant. • 3. That ail plans, designs, and specifications and all work done by the plaintiff for the defendant, have been paid for by the defendant. 4. That no salary, travelling expenses, or remuneration of assistants of plaintiff the have become payable by the defendant to the plaintiff. ' COUNTER CLAIM. As a counter claim to the statement of claim and amended statement of claim, the defendant says that, if it is established that an agreement was entered into between the plaintiff and the defendant a3 alleged in the statement of claim : 1. That to carry out the works referred to in the statement" of claim three punts were constructed by the defendant in connection with the said harbor works. 2. That the plans, drawings, and specifications of these punts were prepared by the plaintiff, and (if it is established that there was such agreement ag aforesaid, then as tha engineer of the defendant) and such plans, drawing^ and specifications were part of the plans, drawings, and specifications referred to in paragraph 2 of the statement of defence, and were paid for by the defendant as in the statement of defence alleged. 3. That the plaintiff was aware of the purpose for which these punts were required. 4. That the plaintiff so negligently and unskilfully prepared the said plans, drawings, and specifications of the said punfcs that it was found that the said punts as designed and constructed were not fit for the purpose for which they were intended. 5. That owing to the said negligence or nnskilfulness of the plaintiff the defendant was put to considerable unnecessary expense both in the reconstruction and alteration of the said punts. Wherefore the defendant claims £273 12s. In the amended counter claim the j Board alleges that the alteration of the five skip barges will cost the Board £273 12s; fault in dredge and depreciation in its value are put down at £1,250;. n0t supplying specifications for jetty, etc., £7 10a; ditto as regards methods ot removing and placing Astrolabe stone at works £470 ; and that the two latter sums were paid by mistake in the sum of £1,450 which plaintiff had received from the Board. The following special jury was empanelled :— Messrs C. H. H. Clark (foreman), J. McK. Campbell, C. J. Bird, P. Bond, T. Pettit, C. D. Beatson, E. Webley, W. H. Hodson, J. G Littlejohn, W. W. Livesay, H. G. Heyward, W. Douglas. Mr W. R. T. Ancell was excused as his attendance would involve the closing of his business, his father being away ill. Mr G. C. Gilbert was excused, being over age, and Messrs Kirkpatrick and Tabatea, on account of illness. Mr H. D. Bell, of Wellington, with Mr C. Y. Fell, appeared for plaintiff, and Dr. Findlay, of Wellington, with Mr C. J. Harley for the defendant Board. „,-.»•«, After the case was called Mr Bell, counsel for plaintiff, objected to the amended counter claim which had been filed the previous day, contending that it was contrary to Rule 144, and also to Rule 130. If his Honor allowed the amended counter claim to be heard together with the original claim, he asked for an adjournment with costs. Dr. Findley contended that the defendants were not taken by surprise, as the amended counter claim was practically embodied in the original counter claim. His Honor concurred with Mr Bell, and Dr. Findley abandoned the t amended counter claim, and agreed to the claim and original counter claim being heard together. In opening the case at 11.20, Mr I Bell said that counsel had agreed to refer all legal points for argument before the Court in Banco. After considerable evidence had been taken Counsel addressed the Dr. Findlay in opening his address said the first question was— how I much, if anything, was Mr Reynolds to get from them. Then, what did IMr Reynolds bargain to do? and what had he done? The amount claimed by Mr Reynolds was £1007 for preparing pjane, specifications, and.

• drawings in connection with the contract, and alongside that claim was Mr Reynolds' letter of Lit May, wherein he bargained to do tjie whole work, which covered complete plans, and supervision for carrying out the scheme. The Board expected to get such plans as would enable them to call tenders for the work if they thought fit. In December, 1901, the Board wrote to Mr Reynolds asking how the work was to be done, whether 'by day labor or contract, and Mr Reynolds replied that he would thrash out the matter when he came to Nelson. He contended that Mr Reynolds had not then made up his mind which way he was going to do the work. Mr Graham wnte again and again and in each of those letters the question was pointed out. Mr Hanby had stated that Mr Reynolds was anxious that the Board should do the worK by day labor,and the matter had been informally diacused with him. Now why should there be any discussion if it was understood that the work *yas to be carried out by day labor? Dr. Findilay next compared the expert cvii dence, and said that anyone could set up as a civil engineer, as there were no exams to pass. It was another matter if they got any work Ito do. Mesrss Sham and Henderson ' had said they would have felt bound to provide tender plans if they had been asked to prepare plans and specifications. The Board assumed they were going to get plans which would do either for day labor or contract, and if the jury were satisfied that Mr Reynolds had agreed to supply full working plans, etc., the claim for £1,007 fell right put of the case. It was hard to arrivo at how professional fees were charged, as the evidence of experts was only opinions. Mr Reynolds had said he had done other work after August 4th, on the assumption that it was to be carried out by day labor. If so it was work he had been paid for. The question was whether Mr Reynolds was entitled to receive any money for , preparing the contract plans? Mr Reynolds had charged £1450 for working plans, and £1450 for supervision ; supervision of what? He contended supervision of work only. When Mr Reynolds wrote on Is*. May he did not know whether he would have to supervise plant or not. If the Board had bought the dredge there would have only been barges to supervise. The supervision was not of plant, only work. Dr. Findlay then dealt with the commission received by Mr Reynolds, and contended that he had received all the commission he was entitled to. There was no definite evidence in regard to £90 claimed for the detention of Mr Lowry, in Nelson, for four months. Counsel contended Mr Lowry was iooking after the dredge the whole time, and consequently there was no detention. The evidence of Barrowman and Bruce showed how useless the skip barges were. Mr Reynolds said he intended to put 40 tons of stone in the barges for ballast. This would be towed backwadrs and forwards, when the barges were carrying only 22 tons of stuff. It was trifling to say that was good engineering. The aides of the barges should have been made to go under the shoot of the dredge. Mr Reynolds had to find a way to remedy this, and thought that to fill the barges with stones was the best plan. The Board would have to pay for the alterations, £150. Mr Findlay resented the insinuations that the resolutions of 6th May were passed with a view of getting rid of Mr Reynolds. Mr Graham and others had said they were not passed with that intention, and these gentlemen would not perjure themselves, the Boarp had acted fairly and squarely in their dealings with Mr Reynolds, and had never consulted their lawyers in the matter, although Mr Reynolds apparently had. In regard to the consulting engineers' report, the Board wanted Mr Reynolds to co-operate with Messrs Williams and Rawson. Mr Graham and Mr McKenize both swore they were surprised when Mr Reynolds declined to carry on the work on the amended proposals. Mr Reynolds treated this as a dismissal, but the jury were not concerned in the question of dismissal. In concluding, Dr. Findlay said the Board had acted conscientiously, honestly, and fairly to their trust, and if their was no case made out, why should they smite the pockets of the ratepayers to fill Mr Reynolds' purse. The address concluded at 10.40. Mr Bell said the jury would do what was fair, whatever the facts of the case were, even if it did affect the pockets of the ratepayers. He asked why the counsel for the defence had tried to belittle Mr Reynolds' reputation, why had he tried to belittle the skip barges, and why had he endeavored to make out that Mr Reynolds was incompetent. Mr Bell detailed the particulars of Mr Reynolds' estimate, and said that Mr* Reynolds was entitled to his commission on £58,000. He said he fully expected that Mr Williams, the Board's present engineer, would be put in the witness box. He assumed the reason he was not was! because he would have to support the expert evidence of Messrs Fitzgerald, Rounthwaite, and Bishop a& to the usual commission. If he could have said anything different he would certainly have been put in the box. He suggested that perhaps the reason Mr Reynolds was not elected a member of the Institute of Uivil Engineers was because there was some one in New Zealand who i had worked against him, a young New Zealander who was not known in London. The question for the jury was whether the Board had to pay for two sets of plans, schemes, and methods. The first £1450 was paid for preparing plans, and the second £1450 was to be paid for supervision of woik. The Board admitted that they had not paid a shilling for that. Had Mr Reynolds done any work to be paid for? Was the plant to be cut out of it altogether? Mr Reynolds had supervised this plant, and had to accept the responsibility for it. Mr Bell explained that this plant, excluding the cranes, tug, and locomotive, cost £18,000 odd, and his expert witnesses went to show that 3J£ per cent was the customary fee for supervision of mechanical plant. He therefore claimed they were entitled to 3}4 per cent in respect of that, and 2% on the balance of the plant. Mr .Bell then referred to the fact that in December, 1902, Mr Reynold a came to Nelson with his assistant, and was prepared to go on with the work, and in January asked for a fore- ! man to be appointed. This was not done, and in May, 1903, the Board changed its method of doing the work, and required him to prepare fresh plans for contract. The evidence of his experts went to show that 1% per cent was a fair charge on those plans, but in consequence of the delay of six months an addition of 1 per cent was a fair charge on this work, which was estimated at £35,000 odd. If the jury were not prepared to assess the value of the supervision of plant as they claimed, surely the plaintiff was entitled to recover £91 for Mr Jjowry's useless detention in Nelson during that period. Mr Bell concluded byjstatfng that they were asking for no fanciful amount, but had brought their claim down to the lowest sum at which they could assess the value of the work done. His Honor, in summing up, mentioned tijafc something -fead beeasaid

about an anonymous letter in refer- , ence to harbor works, and.sqmething about the position of the jurymefi as) ratepayers. He felt sure they would take no notice of either of these matters, and were safe guardians of their own honor, and the honor of | the city. His Honor then directed | the jury that the case was narrowed down, and .there were two issues of amount only ,tq..,b.q i considered— (l) What amount, if any, was the plaintiff entitled to recover; (2) What amount, if any, was the defendant entitled to on the counter claim? Plaintiff's, claim was divided 'into two branched, that for plans, and that for'supervision. .As to the plans, it was perfectly dear as far ac the Board was concerned that there was a difference of opinion as to the method of proceeding with the work, and in August they came to the conclusion to 2do the cut by day labor. There was no doubt that in May next the Board decided to do the work by contract. If there was any duplication of plans in consequence thereof, it would seem only to apply to the amount estimated for the cut — £14,380. Plaintiff's experts argeed that ilj£ per cent was a fair margin basis* .'for that. Plaintiff could not claimjbecause a foreman was not ap- j pointed* He was only suing for actual work done. The question for the jury was, did Mr Reynolds' letter of May, 1901, cover all the plans the Board might call upon him for, or was Mr Reynolds entitled to anything for what might be 3 termed the duplicate portions of the plans? It being remembered that this must be something he could make even if he carried out the work. |The Board admitted the division^ payment as between plana and and the question was, that was a fair charge for thatl^spervision? There wag no doubt Mr Reynolds had supervised the construction of over £18,000 worth of plant, and the question was what was a fair charge 'for that supervision? If the claim for supervision was allowed, he did not see how the claim for Mr Lowry's services [could come in. As to the counter claim, it could not be allowed unless want of skill and negligence were shown. If the jury believed that the barges could be used after being ballasted for the purpose intended, they could not allow the counter claim. It was not enough to say there was a better way, or even two better ways of?construcing the barges. The jury retired at 11.50, and returned at 3.5, with the following verdict:— On the issue, what amount, if any, is the plaintiff entitled to recover? — £939 10s. And on the issue, what amount, if any, is the defendant entitled to on the counter claim? —Nil. , The argument on all legal points , I will be taken in Banco in Wellington. I