CLAIM AND COUNTER-CLAIM.

Taranaki Herald, Volume LXVI, Issue 16247, 27 September 1918, Page 5

CLAIM AND COUNTER-CLAIM.

WINKELMANN V. LEPPERTON DAIRY COMPANY. In tho Magistrate’s Court on Thursday afternoon the case was continued in which Norman G. G. Winkelmann claimed £95 from the Lepperton Cooperative Dairy Company, Ltd., in respect of the installation by tho former of an electrical plant, and in which tho company made a counter-claim for £135 on the ground that tho contract had not been fulfilled. Plaintiff, cross-examined by Mr. H. R. Billing (for defendant), regarding the power developed at the now factory, said ho would not swear that tho plant ho had installed would produce 4h.p., hut he denied that it -would only produce i h.p. Ho considered the plant with tho -wheel as erected as present would produce about 2 h.p. at the new factory and if tho wheel was set in a different manner ho would guarantee 3 h.p. at the factory. Witness accepted the statement of Mr. I.oppcr that 5 h.p. was available at the wheel and he said then that, whatever tho horsepower was at the wheel, there would he a loss of between 1 and 1 h.p. in transmission to the new factory. Ho had heard the manager say that 31 h.p. would bo required. When he tried the plant in February the water to work tho wheel was low and the wheel was out of order, practically falling to pieces. To tho best of his memory, witness drew the attention of tho company to this and assured them that his plant was all right but they must take the risk of the plant not being suitable to the water-wheel. His plant was suitable to drive tho. factory provided he was given tho right power from the water-wheel. He told them he required about 8 h.p. to do the job properly. The reason why, in the face of this and the fact that Messrs. Siaddcn and Palmer had said tho power of the waterwheel was 4 h.p., he did not tell the company tho wheel was no good, was that he understood that tho proposition was that he should instal tho t plant and test the water power, and that if that was found not sufficient turbines would be put in. Ho would not be surprised if the dynamo he installed was 40 years old. He got it from Wanganui and it might have been in the meat works there, but he did not know that it bad been thrown out as too antiquated. The company advanced him £6O to get the dynamo and plant and later ho got another advance of £23. He got the dynamo through Mr. Foster, Wanganui, who got £ls commission; the vendor got £33. To Mr. Hughes (plaintiff’s counsel): The testing of the power of a waterwceel would require a special knowledge of hydraulics, which he, as an ordinal-* engineer, did not possess. This closed the case for the plaintiff. The point was raised as to whether tho Bank of New Zealand should be joined as a party with tho plaintiff on the ground of a letter (produced) which might he regarded' as an assignment to the hank by plaintiff of the money he expected to receive under the contract. It was decided that, if his Worship concluded that tho case must go against defendants, the hank should he joined before judgment was given. Mr. Billing, outlining the grounds of defence, said they claimed first that the bank alone could sue in the circumstances and that before judgment could he given against them the hank must he joined; Regarding the merits- of the case, their contention was that the company was erecting a new factory across the road from tho old factory and tho race and wished to continue to utilise the water power and wheel which had served them for the past thirteen years. Tho chairman of directors was in New Plymouth making enquiries and was sent to see plaintiff, with the result that the latter said he could' not do anything or give a price until he had seen the site. This supported tho view of defendant’s that plaintiff was not merely to supply plant but also to'see what would suit. After seeing the conditions he said he would undertake to get power at the new factory within 1 h.p. of what they were getting at the old and said that if they got sufficient power at the old they would get sufficient at the new. A contract was eventually entered into at a meeting of directors at Inglewood. The defendants claimed that with the present plant there was a loss of 5 to 5$ h.p. in transmission to the new factory and that tho plant was out of date and one which no engineer should think of installing. Counsel claimed that the law allowed a diminution of price to set off the loss the company had incurred. William N. Ackland, a director of the defendant company, gave evidence in which he said that at the meeting at which the contract was arranged no suggestion was made that the water power might be inadequate. To Mr. Hughes: Ho would not say that, if plaintiff’s machinery was satisfactory and the water power was not sufficient to drive it, plaintiff should supply the required'power. Another director, Austin Bell Leech, also gave evidence. Edward George M'Dougall, chief engineer at tho Smart Road Freezing Works, deposed that he had inspected the electrical installation at tho Lopporton factory and found that the dynamo was an old-timer. He had seen it before; in 1902 it was considered to he a very old and out-of-date machine in the Wanganui Meat Freezing Works and was thrown out as of no uso. Judging by its type, ho would take tho dynamo to he well over 30 years old. His opinion, after inspection, was that the man who installed tho plant did not know his business. Witness had worked out the loss of power in transmission and gave his figures in detail. On the assumption that tho power of tho waterwheel was 6 brake h.p., the power available for driving in the factory, after deducting all losses from friction and other causes, was .5785 h.p. Ho considered that if the actual power available varied from his estimate it would ho on the side of being less. Ho had had 19 years of general electrical experience. Ho considered that a job could not ho made with the plant now installed, or one on a similar system. The brake horse-power available at the water-wheel was sufficient to do all the work of the factory, if kept mechanical, hut not with an electrical plant. He did not want to convey the impression that an electrical plant could ho properly driven by tho wheel. The court adjourned at 5.45 p.m,, and resumed at 7 o’clock. Thomas W. Taylor, manager for the Lepperton Dairy Company, depnssc. that he was present, with Messrs. Lepper and Copcstakc, on ono occasion when plaintiff made a test of tho installation. Mr. Lepper askcdWinkelmaiia if ho had promised to give within i h.p. of that obtained in tho old factoi j and Winkelmann did not deny it. As it could not uso tho electric plant, the factory was using about >-ton or coal

per day, tho prlco o£ tho coal .being about 35s per ton. Edward Hcllier, a director of tho company, and Harper Brison Lepper, chairman of directors, also gave evidence. Tho latter said that tho position was explained to plaintiff and the directors put themselves in his hands, as they knew nothing about electrical matters. Tho power available at tho factory now would hoist a man on a double-pulley, and witness could do that himself unaided. The power was quite inadequate to run the plant. Plaintiff had verbally guaranteed that tho wheel would give all the power required to run the factory. There had been conversation about putting in a turbine should additional power bo required in tho future. Witness had written to Hy. Brown and Co., about purchasing a turbine. This closed the case for tho company. Recalled, plaintiff said, regarding suggestions that his plant was at fault and not tho water-wheel, that his plant was perfect,. Ho had not had sufficient water-power to make a proper test. The dynamo, when witness bought it, was being used, being driven by an 8 h.p. engine and developing 6 h.p. Regarding tho figures brought forward hy Mr. M.'Dougall, witness did not see how ho could have made a test and tho figures could only bo hypothetical. He did not seo how a test could be made without having a plant running at normal. The court adjourned at 8.15 p.m., it being decided that tho addresses of counsel should ho hoard at a future date.