DISTRICT COURT.

Taranaki Herald, Volume XXVIII, Issue 3506, 6 August 1880, Page 2

DISTRICT COURT.

Thursday. August 5. — Before His Honor District Judge Mansford. Cooley v. County Council of TaraNAKI. — The following judgment was given in this case : — This is a claim of £17*1, the particulars of which for all necessary purposes will be sufficiently explained in the course of my judgment. The Ist, 3rd, 4th, and sth items in plaintiff's particulars are admitted. The 2nd item is for the sum of £490 Is., for forming and metalling 9!) chains of road being part of contract No. 8, and to this the defendants iv their written statement of defence say that the work was so carelessly, negliI gently, and improperly done, that the defendants derived no benefit therefrom, and had to expend the sum of £74 3s. Oil. to complete j the same. The evidence on this point is quite j .sufficient to justify me in allowing this sum to be deducted. The 6th item is for £30, expenses and law costs incurred by the plaintiff through the neglect of the defendants to pay the progress payments in accordance with the terms of the contract. The neglect to pay was after the contract time for completion of the work. I think that the plaintiff took many useless journeys and incurred much unnecessary expense, and that the amount

paid into Conrt. viz., £16 Bs. Bil., is enough ' to satisfy this portion of the plaintiff's claim. The 7th item is a sum of £100. special damage, the plaintiff having been prevented completing the work comprised in contract No. 8 wholly by defaults on the part of the defendants in the observance and performance of the conditions and promises expressed or implied in their agreement with the plaintiff in reference to the said work. The contract was known as No. 8, Junction Road, and was for gravelling a portion of the said road. According to the specification the contractor was allowed to obtain gravel from any of the pits marked on the plan accompanying the contract, but was not limited to those pits, a provision having been inserted that should the metal run out, the contractor would be liable to complete his contract with material of approved quality obtained elsewhere. The contractor was also allowed the services of one man, who would be paid by the County Council; this man was placed on the work on behalf of the Council, and, amongst his various duties, he was to prevent the contractor spreading or carting alluvial matter with or without the gravel. One of the pits on the plan was known as " Lambert's," and from this pit the plaintiff had carted a considerable quantity of gravel. There were two seams in this pit. one of good metal and the other of sand. The plaintiff having, as the County Engineer alleges, and no doubt truly, used the sand as well as the metal, this pit was condemned, and the contractor, as he alleges, put to considerable expense through the delay thereby occasioned. The question then arises : had the Engineer power to condemn a pit containing gravel of a good quality, which the plaintiff, in terms of his contract, was allowed to use, because the plaintiff, in extracting the mclnl, mixed a quantity of sand with it.' and to this question I have no hesitation in saying that he possessed no such power. The man allowed by the Council could have prevented the contractor spreading it, in addition to which the Engineer possessed ample power in refusing to certify that the work had been properly completed. The contract further provided that the contractor was to give the formation uniform and systematic gradients, to be approved by the Engineer before laying the metal ; that the works were to be completed within twenty weeks ; that progress payments were to' be made monthly ; and that the contractor should be liable to a penalty of 10s. a-dsiy for every day the work should remain unfinished after the contract time, and find sureties for the performance of the work. There was no provision in the contract for its revision. What was intended by the words " to give the formation uniform and systematic gradients" 1 in a contract for simply gravelling a road already formed is difficult to conceive. Taking a common sense view of the matter it could scarcely be intended that the contractor should make cuttings or form embankments, or that he should take off the crown of a hill or fill up a gully, or that he should raise bridges or construct or lay culverts. Had anything been intended beyond removing obstructions, filling up ruts ami holes, and giving the road the proper cambre before laying the metal, it should have been more clearly specified. But that such was not the intention, though a point was tried to be made of it at the tri d, is evident from the fict of the plaintiff having been paid for many of these extra works a sum of over £100, and which the County Council had no right to pay if included in the plaintiff's contract. lam of opinion that af rer entering into the contract that the plaintiff should have been able to commence and continue his work at any part of the road, and that any hindrance or interference on the part of the defendants would deprive them of their right to enforce the penalties for non-comple-i tion of the contract. Without mentioning i some minor hindrances, there can be no doubt , that the level of Cunningham's bridge had to be raised, that one or more culverts had to be laid, and various cuttings made, which must have delayed and interfered with the contractor. The whole work was to have been completed within twenty weeks. At the expiration of this time not much more than one-third of the work having been completed, the defendants, not relying on the penal clauses of the contract, claimed their common law right to rescind it, as it was impossible I for the contractor to finish his work in the time, and re-lot the work to another contractor. The learned counsel for the defendants relied upon the case of Chanter v. Lccsc (-1, M. and W.), but it is a well-recognised principle of law that a man cannot take advantage of his own wrong to but an end .to a contract into which he has entered, and that any obstruction or hindrance to the performance of a contract by the other party to the contract, would save the p irty so obstructed or hindered from any liability of penalties for nonperformance of che contract within the specified time. I r t ui of opinion that the defendants by their action in condemning Lambert's lit, and by the delay which they occasioned through various cuttings, rendered necessary during the progress of the works, and by having to raise Cunningham's Bridge and by the laying of culverts, so obstructed and hindered the performance of the contract as to deprive themselves of'the right at common law,if any such right existed after the expiration of the contract time to determine the contract. The only point for me to decide is the amount to which the plaintiff is fairly entitled for the damage occasioned to him i through the act of the defendants in improperly rescinding the contract. It is clear to my mind after a careful perusal of the ma^s of evidence given at the trial that the plaintiff with the means and appliances at his command could not have perfo rned his part of the contract if the hindrances and obstructions to which I have referred had not arisen, and therefore he is only entitled to compensation on a quantum merit it. I have made the best calculation I could with the means at my disposal, and have arrived at the conclusion that the plaintiff is entitled to £155 in addition to the amount paid into Court, I therefore give judgment for the plaintiff for £51 18s. Bd. and costs.

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