SUPREME COURT.

Timaru Herald, Volume XLVIII, Issue 4556, 4 June 1889, Page 4

SUPREME COURT.

SPECIAL CIVIL SITTING-. 'ililAßU— M.ONDAY, JrHB 3bd. Before His Honour Judge Denniston and a special jurv, consisting of Messrs E. G Stcricker (foreman), K. Clisaold, C. R. Shaw, R. Foster, 8. Clissold, W. A. Hose, M. White, C. G. Vogoler, James Campbell, W. Ferrier, and W. J. Hugjnns. W. J. Silcock v. Geraldine County Council, claim £754 12s stt, balance due to plaintiff „' contractor for the construction of the con-ti-.jjts Nos. 2 and 3 of the Orari-Hangitata water races. Mr Joynt, with him Mr Hay, for plaintiff ; Mr George Harper, with him Air White, for defendants. ilia Honour took his seat at 10.30 a.m. On opening, Mr Joynt put in a letter, written by Mr Silcoek to tho engineers, in April, concerning No 3 contract and the width of the race at Badham's. Mr Harper then called the first witness for the defence F. W. Marehant, who with Mr Meason, was engineer to the Geraldine County Council. Recollected calling for tenders for races and Sileock tendering. Saw Silcock at his oilieo previous to the tonder being sent in, and explained to him all the details of races ; read through the whole of the specifications >ind cxpl-iined the puins j and wrote out for SilcocVs guidance a schedule of the quantities. Silcock informed witness that ho had not been over tho ground and desired to be given a description of it, and witness gave him a description. Silcock mado up his tender, sent it to the council, and it was accepted, i'revious to the tender being accepted Mr Moason made a survey, witness assisting for a d;iy or two. Knew the ground himself, but had not been all over it. Generally witness attended to the office work and correspondence, and Mr Meason to the field work. The ■.■■'iitract for tho race had nothing to do with !':• lieedworks, which were iu course of construction when tenders were called for the r.-ves. Water waa turned in immediately ut'tor the races wero completed. After his ! L-nder ws3 *ecepted Silcock came to witness's o'Ree, and asked if the plans and specifications v.,:re ready. They were not, aud he left. Saw him again, but the contract was not f lined ; i'» was ready for him to sign. Went with Meason to Bangitata, taking the plans, and met Silcock. Silccek informed them that he had constructed part of theAsliburtm raeea. Some discussion followed about peaking out the races and Sileock said thut Mi- Baxter, engineer for Ashbur'.on, had merely shown him the ground and left him t-j work out details. V\ ltness and Meason tueu adjusted tho size of the races, in Silcock's pri'seoc*, as the sizoa had not been adjusted ..[i the pluas. They marked on tho plans the tits of each section of tho ra-.e The adjustments were marked oa tho contractor's plan. In regard to the 850 chains of 3ft races, witness and Meason adjusted it, making 44 .n:iin« of Ift., 396 of 3ft.. and the balance, ii::ir'.ed on the. plan originally as lft. 3in. was made lft. 9in. Nothing was then Baid of the lft races, they were adjusted afterwards. On the following day they all weDfc on to the ground for the purpoie of in'gging it out. They went to where tho -Ift race was to be, and there showed Silcock the level pega that hud been driven in. Here the regular sectional levels had been taken, the whole of the ruce having been " flagged." Described the race and put iu other pega; m irked out crossings on roads ; showed the iir.es rig/ t on until they cams to the 3ft race. as this point Mr Meason pointed to a hollow :iii'.i a fence, and iudicatei the course of the ru-.'e. Rode along tho roads and, a3 the race irosaed them they indicated to Mr Silcock where it ran. Tbi* went on until they came :o the main Feel Forest road, when they .alked across tho grouod, until they came to -.vhere the race had to be zig zugged They •:teJ up this ground, and toldSibock he had hotter go through and have all details ex--..Uincd. This was done, and pegs were put in on Mr Meason'a survey, the depth of cut being marked on the pegs. Followed the ground, which waa very •Hiuven, by the survey pegs, and gave the con tr.;ctur particular instructions as to the cutt.i.ga. Jhe race had to be taken down a zi.'zaz terrace ; it waa not to be taken .traight ; it was to bo contoured according to lh<3 survey. This piece of work was taken as „ specimen of the way the work waa to follow 'J.v hollow* and circle round the spura. Silck toid them that lie knew exactly how to : > it ; that he had bad large experience in such work. They completed the pegging „, Ihis section, and after finishing, Silcock exJrMW d himselr as being very much disappointed with the character of the ground. A fter tliis they went along other parta of the .'ice, till getting to the riverbed, when Silcoek <-iid he understood exactly, and they need i.-jt peg any more. They then parted. Witness Mid Mr Measou went out that day prewired to go on with tlie pegging and were not inxious, aa Silcock said i'.i Ins evidence, to get nick to town. Was not on the race when Siicock actually commenced his contract. A progress pnyment waa made to him in October of £130. Badford was in charge of Hie works, and reported to witness from lime .; time. -The letter of 10th November ISB7 .v.ts writton from "informaUon received" i'itne-3 went up in December. Previous to {'■is had a letter dated November 17th, from •icani-, asking to Ye allowed to alter tho lft ',■1 races to lftOin. (Letter put in ) Kid :.<,l know whether .Silcock had any lft 3-n i oops. When witness wont out in December t!:,- steam plough was at work, and also four o:' Bva men. Had a conversation with Sil'or:k about the depth of tho races, finding ault wiih tho way they were beiog ploughed ■■'.:'.. Was up again on Oth and 10th January; .. -\f Radford, who hud reported but without :'erring to reports could not say if witneaa 'i vl complained, imported to tho council on -', luury 1 Uh, recommending an extension of >':.ie for C, week", but that as tho water was \ ioli needed for stock a penalty be inflicted f.,r further excess of timo. Hilcock did not ask for an extension of timo previous to this. 0..i Feb. 20th went up to tho works again for tli ! purpose of general inspection. After this wrote a letter (24th February) complaining of tho bad work in jeveral sections of the race. 'X&s at the council meeting when Silcock waa Dreaent, but 'lid not remember whether he \im present whon the council decided to clnrao Silconk the wages of the clerk of worka. '.Vwf again at the race on 19th and 20th April, Vir, did not; remombsr seeing Silcock. The oiitract was not then completed. Bemem-Yn-rH being present at the council meeting on ')>h May nnd seeing Silcock after the meeting, *l'in Yie refused to give a guarantee not to >■:'<■> legal proccedinge if tho council com•jMmincd the matter of penalties. Went up • , meisure No. 3 contract on 20th May, '.Vcaion and Kadford being (hero al.i'j. Ihey , ree'l upon o common system and measured <i:.- part together, and then separated, R«d- ;'. -'I driving the horso and trap to vnrious ints. Stopped on the ground at various ;i:umh, each having a measuring rod. After ' -[inrafing Moason measured up tuo curtbworkf, etfl-i on otib part and witntns on the •Vlier On S>j. 3 contract thoy were ".i gJg';d three days enoh, and on "i.ii Jf? Meiwra wa- engaged four days, . .1 witness three day*. Tlicrn win very little r:..crepancy in the length of the rice* us ni-jUßUred bv witness and his partner, and «a in :nsun;d by Mr t'ooka ; only 11 chains. In ■j-tfinc; at tbo uxrra depth in tho excavationa !ii.-y had deducted tuo cubic contents of this normal r.ieo from : 'ic gross measurement. A» >', the nmbankinnla witness produced a ■kilcli of thorn and explained thut there wia n- necessity for many of the embankmontn S .cock hid made, l/o h/id orrcd in thut ho d'-i not contour round as instructed but had gone in n straight caura« i he had put ia tho •,.-i,ti from the «ido cuttings. Witness could !• condemned t/io w!io& of th» embank•i its, but nfter deducting the material tiffed ' '.r.iry to instructions, allowed him tho con- : '. pr'ic. Witness had studied tho Messrs ( k,' Ul,le*, and agreed that their system of - . ptittli'iri waa the correct one, but thoy had <)■: followed it throughout. For instance ;• Kt mild that tho measurement of the ; ,-t contract r.ce.i which wai to bo deducted o ihe gross amonnt was 30U cubic jardr. \V 'r,cs» on tho other hand paid accor.-ling to V ■■ nysti-m adopted (ho flgurca should have ht-'!i '3281! cubic ynnlH. Kooiti hud tuke'. ;• '1.-ptli ;f the-rnno as 9 incf.ns and „ , 'Inf. lnd huapilliis r-omputufioni. Hn wan | •<•■ ..lit; in f.I.iH ; lie ougM. »(> h<ive meixini'i * t'-.r whole of the gross area, and from it do- i dn'*ed the normal sixe of the race. Witness :.■■;. .'ended that Ilr Fookn had doduotnd the

wrong pieco from the race, and that this was not fair or in accordance with the terms of contract. Witness had also measured the gaugo weira, etc., and found that certain fords were omitted. After the accounts of measurement had been sent in, and this case was spoken of, witness and Meason and Smith made a remeasurement of the whole of the races. Found that tho cuttings had scoured but that the embankments were intact. As to the excavations the new measurement in contract No. 2 tallied almost exactly with the original one ; but in contract 3 there was a great difference — some 900 cubic yards. In measuring the earthwork and embankments the remoasurement gave 774 cubic yards as against 1800 cubic yards in the original measurement. The remeaaurement made a difference in price itt favour of the contractor, on the. whole- contract prices, of about £67. A few unimportant Torka were ordered by witness. Made no arrangement with dilcock about measuring up the racee, and was not in the habit of giving notice to contractors about measuring up. Was an engineer of large experience in measuring up earth work. Kadford got instructions from witness from time to time, which were entered in his book. Cross-examined by Mr Joyut : There was a good deal more excavation than was included in the schedule, but witness did not term this '• extras." Never tendered the contract to Silcock to sign. Where the race was not pegged Silcock was given indications of the lice by various landmarks. They had pegged out whenever Silcock requested it. Three foot races were never altered from point A to the railway. Races from A, B, D, to the railway were originally estimated as 3 feet races ; all the others 1 foot 3 inches. Did not consider that by increasing the size of the races they came under the head of "extras." Witness denied that an understanding had been arrived at that the races in No. 3 contract should be altered. The court at 1.5 p.m. adjourned for lunch. On resuming at 2 o'clock Mr March»nt's cross-examination was continued : — The instructions with reference to tho zig-zag applied to wherever the ground was rough. Measured So. 2 contract on the 7th, Bth, and 9th of June, and in most of tho places Meason nnd witness were Beparate. At the zig-zag there was only a fall of li inches to the chain — an ample fall for all purposes. It would have been possible for him to contour and still get sufficient fall. The contract fall of H inches did not bind the engineers, only tho contractor. Ihe contours would not have lengthened the race materially — only about 10 feet in a chain. Took measurements very often, aever more than one chain apart Measurements were worked out as thoy wenl along, on a table previously compiled, showing yards and decimals of yards, giving the cubic contents of excavations and embankments Witness and Mearon took 6 dava to go over 40 miles of race. (Field hooks and ledger put in, showing results of the original and remeasurements.) Aa to Fooks' tables, witness waa prepared to state positively that all the measurements were incorrectly worked ont. He had no business to deduct the bottom 9 inches of the race, but the top 9 inches. Witness waa not prepared to go on Fooks senior's figures, nor to aay whether Pooka, juaior, was qualified or not to make a survey for his father to work out. In some places the raco wa9 too narrow, and tlio batter was wrong generally. The first 9 inches of the races were all right, but at the bottom, where the water flows, the batter waa not in all places correct. Where the race was 9 inches in depth the batter had to be 2 ta 1, and where the racea were 3 feet or so deep, tho batter was Ito 1. In the races that wero of IS inches in depth, no uniform depth was observed. No matter to what depth the contractor had to go, tho top 9 inches was per the contract. Nine-tenths of the whole were taken out by the steam plough. The three foot race was 18 inches too narrow at the top, but right at the bottom. It should have been 6 feet wide at the top, but in reality was only 4 feet 6 inches. Taking an instance from Foo&s' tables, witness found that he had deducted 3011 yards for the contract depth, it should have been 3233. He observed that Fooks had allowed 32 72 chains of embankment, but was not at present prepared to swear that Fooks was a foot out. In making his first measurement witness inadvertently omitted certain forda. On the main Mount Peel road there was a flitch 12 chains 20 links long and another 560 links long, which he told the contractor he could take advantage of. Silcock really did nothing at all to these ditches, but in measuring up for him Fooks had taken them in — so he inferred from the total length-given. Did cot consider that what Silcoek claimed aa work could all have been done in tho same time as was originally fpecified for the approximate quantities given in the specifications. The original contract price was £800, but wus increosed in the amended statement to £965. Witness wou'd swear that this amount of work could be done in the same time as the contractor coulu cam £800. There were 62 fold?. Tba embankments were to be made from aide cuttings. They were not made in this way, and on getting to tho zig-zag witness condemned the I'it. They also found the aanio thing jgciog on at Moody and Zicsler's land. They aftorwarda relented, a&d as engineer! were too soft-hearted. They had found the race good throughout on remeasuring 12 uiontlis afterwards. On the first measurement 772 yards were deducted from tho embankments in contract No. 2, and 702 in No. 3. In the second measurement they had deducted more, but in reality were prepu'ed to pay the contractor more than they had originally made up as due on the contracts. Re-examined by Mr Harper : Was never informed that Fooks was about to measure the nice. It was entirely an ex parte measurement on his part. It was done solely for Hi'eoek. The latter in making tho embankments in the way in which be had, had given himself extra work, requiring extra labour and timo. Gilbert Laing-Meason, partner of last witness, said I bat he surveyed the race, marked it out where the ground wns broken, and carefully graded it. Assisted Marchant te prepare tho plans. It would be necessary to point out to the contractor how the races ran. Corroborated evidence as to an interview at the Rangitnta Hotel and on the race. Was in no hurry to got back to town. Mado an in9pection of tho mco jtoto time to time, and gave instructions in writing, both to Radford and Silcock, as to how the raceß Bhould be carried out. Made an arrangement with Badford and Silcnck to have the work measured up from timo to time, tiilcock agreed to it, but the measurement had not been done. After Oc'ober. was up at the race again on tho 28th November. The steam plough had then arrived, but previous to this should say that barely 10 miles of work had been dono. Waa there in December, and the work waa not even then going on speedily. Was lit tho council meeting on March 1-Uh, when Silcock hud an interview with them. After this it m, agreed that if the work was done in fivo weeks no penalty would be inflictod. Silcock said ho would try and do this. After this, again visited tho raco. Was not present at the council meeting on May 9th. Assisted to mensuro up tho race, and on his own individual work was occupier) about/ 7 days. (Corroborated evidence given by Marchanton measure* ments and accounts ) In measuring witness took tho total depth of cuttings, from that deducting tho contract amount of tho earthwork — the size of the race us per conditions, in computing tho embankments, got nt tho flgurns by tncanuring the back from where tho otuff had boen taken — from the Bide cuttings. Did not know that Fooks was about to moasure the race. Witne»s had taken 6 days to do bi» share of tho measuring. All entries had been mado in their field books, in which everything was carried out in results. These he believed to bo correct. Silcock had amplo ti«io to complete bis contract by November. Wn» not present at thu meeting of tho council on 15th June. Saw tho ditehoß on Mount peel road that woro' utilised. In the romeasurement stated everything that was fair. Believed his measurement to bo quite Cross-examined by Mr H«y : Tho irregular ground pegged ont ran into several miles, about 10 altogether. Kndford went over all t.lie ground with witness, ami knew exactly whore tho ro.ee was to go. WitnoM left it to I (.)]■• cmt.rnctiir to tako his instruction! from i -Miriford. Tim fiml.rnnlnr >lirl not follow i.hn i contour in nil pliicos, deviating ns much, in ono plaoo, as two cbain«. WhonHilcock wont out with witness, the former had plenty of pegs,

but they discontinued pegging because Silcock said that he wob quite satisfied and could manage himself. He was eager to get back to Ashburton, and said bo, whereas witness and partner were prepared to stay on the spot all night. On coming to the zigzng, Silcock complained of the nature of the ground, but eaid nothing about throwing up the contract. Silcock wbb busy on both contracts at one time. After the council meeting understood that Sileock agreed to accept the extension of time, and the proposal of the council. Witness then gave details of the measurements made, similar in effect to those enumerated by the previous witness. The expense of fords was not so great aa mentioned by Shiers and Quiglcy. They must have referred to other than race fords. In the second measurement none of the embankments had been measured. This measurement wu3 made after the lapse of a year. Tboy had not "guessed" the amount taken from the sidelinga. Generally the races were the right width at the bottom, but were too narrow at the top. Had told Silcock that he was not carrying out his contract properly. The 1 foot 9 inch races wore on an average 6 inches too narrow all through. He never took top measurements except here and there. There was a difference in the accounts as first put in, and as now before the court. In the former there were shown 700 cubic yards of excavations and 150 cubic yards of embankments, againßt 3431 cubic yards of excavations and 1184 cubic yards of embankments, as shown in the amended account. It would certainly take more time to do the larger works than the smaller ones, but had he then this information before him he would not have givon a longer timo for carrying them out, than was stated in the specifications. Two digressions were made by dilcock, ono near Best's and the other on the big terrace j in the latter caße he " dived " right down the terrace instead of following the curve along. By this increases were made to excavations. The enlarging of the 8 feet race to 4 feet would entail extra labour. Where extra work ws.B necessitated, extra time would be taken up. Gave instructions to carry the water down the ditch at Mount Peel road ; and gave pencil sketches of it. The surface of the country between the finger poit and Reid 'a was fairly smooth. Be-examined by Mr Harper: After the March meeting of the counail nothing was said by witness to Sileock about the extension being given for wet weather. At this stage, 5.10 p.m., the court adjourned till 10.30 this morning, and it is expected that the case will conclude about noon.