CONNOLLY v. UPPER WANGAEHU ROAD BOARD.

Wanganui Chronicle, Volume L, Issue 12145, 5 September 1908, Page 8

CONNOLLY v. UPPER WANGAEHU ROAD BOARD.

JUDGMENT FOR DEFENDANT This was a claim by James Connolly, contractor, of Rangiwaea,to recov'?i £173 for work done on a contract fbi the Upper Wangaehu Road Board, and £15 deposit paid when entering into the contract. , Mr Hutchison appeared for the plain ' tiff and,:Mr Cohen for the defendant. ! PJaintiJi stated that on the 15>h Dec ,1906, he entered into a contract in writing with ; defendants for the ; formingof a..cart road in the Rahjri w,aea Block in the Turakina Valley Road, for the price of £303, paying a deposit of £15; heproceeded to perfoxm +ho contract, and: expended money and labour on the work, entitling him t'. receive payments; that the plaintiff or. Juno 6th, 1907/' received notice fron: the Board, by' its engineer and clerk (A. C. :Mannington),rs. cancelling the, contract, on the ground that reasonable progress had riot Jbeen made, the Board taking possession] of the work. Plaintiff claimed that the contract did not justify such a notice, rior was the Boards entitled to terminate the contract," which he was ready and willing to carrj put; He claimed that ho was ©ntitlvic, to be paid the £303, less £130 which' had been received on account, leaving r balance due of £188, which he claimed for work done and materials prov ded .by him for the Board at. its request for the road formation. He also alleged that wheel traffic was allowed on the road during the progress of tho' work, which interfered with, impeded^ ~ anr damaged the work:. :-:...-. ■ r The defendants admitted enterino- in' to the contract. V They stated that if there was traffic r on, the road while it was being formed, it was permitted by the, plaintiff, and that.the wheel traffic, if any, did not interfere, damage; or impede the work. ", Defendants admitted cancelling the contract, but held that , the contract justified the notice to terminate being given, and denied that ni° Ql P laintiff was entitlpd to th© sum of i v 4 or any sum > as the Board can- .-.:. celled the contract,acting "upon its lega* i rights thereunder, and plaintiff •■ wa? -fi therefore not entitled to the return of the deposit. i¥ r -i H;ltcliison outlined his case and called. James Connolly, of Rangiwaea, f "the plaintiff, who said he had had some years' experience on con tract work. The road was to be a 14 feet cart road. Witness described the making of the road. He understood horse traffic might proceed over it while he was working on it. A 10-bullock team was coming and going over the read. Witness complained to Mr Stra^ chan, a member of the Board, that this was injuring the work and said he would have to knock off if it were not stopped. Understood bullocks were tc bo allowed on the road after 31st May. About sth or 6th June Strachan saic witness would have, to open the roac for the bullocks. This would cut the road up and he could not go on witt , his contract. On 12th June got a notice of cancellation of his contract, the reason given being that no reasonable progress had been made. The road hac almost been completed. Witness had received two. progress payments of £5C and £80. These instalments did not represent the work done. ' On signing tlio contract he paid £15 deposit. The Road Board finished the road iif- theii own fashion six months aftsr. The weather was bad when witness gave ur work. * To Mr Cohen: There were thre^ othei section contracts on tibe road. Witness, had the third section from the bottom. There was a bridge on one section. All the others finished before witness. Started work about five weeks before ho signed the contract. The work was. to bo completed within three months, which would expire on March 14th. Had not finished because he was told he fxmkl take his own time. Donovan wjil tho first to go over with whoel traffic, a_nd witness pot the l^ad fit fo-.- him. Witness helped him the second anc third timo. Porry went through before and after tho 31st May. Witness spoke to Perry.about going through a f te i 31st May. and Mr Strachan was theiv. Could not finish before 14th March a; ho could not get labour. Had three to five men working in December.

Would put all the men bo could get on. To His -Honour: Could not get men m January. Was left by himself sometimes in January. During February he had four men with him. To Mr Cohen: He came down ir. March to get men. Did not know what the overseer reported to the Board. Part of the report on the state of hit road, which was read, was untrue. Reckoned it would have taken him & month to finish the contract after June. To His Honour: The bullocks were on the road for a fortnight or three weeks. To Mr Cohen: Donovan's were the only bullocks on the road. The bullocks only went through twice a week. Knew Coehrane the mail carrier. The Court at this stage adjourned till 2 p.m. On resuming at 2 p.m. Mr Cohen con eluded his cross-examination of plaintiff. This closed the plaintiff's case. . Mr Cohen, for the defence, opened very briefly and called ,A. C. Manning' ton, engineer to the Board, who gave evidence as to the work on the contract, the mer employed, and the Board tak' ing the-contract, away from plaintiff. . To Mr Hutchison: The contract was. » lump sum for the whole work. Archibald McAllum, foreman of the Board, said he inspected Connolly's contract in January with" Mannington. Connolly had two men working for him. Plaintiff did not make good progress with the work. Connolly said he wae.' always going to get men, but did not. Did report to the Board that Connolly was as usual going to put on men. Witness verified further reports he had put in about small amount of work done by Connolly on this contract. At tht rate he was going did not think he would ever finish the work. Could not say he saw wheel traffic on the road. Connolly never objected about it. To Mr Hutchison:, Labour was scarce in January, but later on it was more plentiful. Never gave Connolly any notice in writing about the delay. The Board put no men on the road when il cancelled the contract. The road was. left during the winter* Did not follow the specifications which Connolly had tc follow.. Some of the work was done, differently. Connolly did not seem tc push matters. Was on the work few days before he made, his last report. To Mr Cohen: Connolly made nc water-tables at all. The work done by, tho Board was not more elaborate than that required from Connolly. The road was not yet finished. To Mr Hutchison: The water tables, vrould generally ba done last. .; Patrick Donovan, of Ruanui, settler, remembered driving bullocks over Con nolly's road about 22nd April. He saw Connolly before he went over it and tho road was not ieady for wheel traffic. Plaintiff said he -would let witness, ■through. Had three -bullock drays. Was on the road about 14 days. Had been through Connolly's contract and seen Connolly working by himself Went through again and saw no one working. The road was about half fin ished. Connolly had a lighter contract than two others. Murphy had always. 6 to 9 men on. ' To Mr Hutchison: Went througK about the middle of December. Saw Connolly, working alone on 22nd April. To Mr Cohen: The weather was not wet all the time. . William Strachan, a member of the Upper Wangaehu Road Board, said the 6th June was his first meeting; Came along the road on two or three occasions. Considered that they would never get wheel traffic from the etate of the road. Never saw more than twe men working. Went with Harp to look ai the road. Harp told Connolly hs. \vqu)d havo to get the road finished tc let drays through. Plaintiff said he would sue the Board in H— first. Afterwards he cooled down. Nevez spoko to Connolly himself about the, road. Before 6th June he went through' and no progress was being made, iTo Mr Hutchison: Mr Harp was Hi predecessor for that ward. • . '■■■ V-fV:.. William R. Cochrane, a settler anc mair-carrier, knew the road in question. Connollv had one ma/i on for t start Connolly had four -men on foi a fortnights At other times Connollj would be v at work, sometimes no one; Work was not regular and Connollj never seemed to try and get oh. Witness complained to the Board by letter and the contents of the letter were true.. .-.:.- ■ . ■■; ~■- ■ ,:■■_... ..-. -,- To Mr Hutchison: Remembered the wheel traffic in April. Did not -notice, men at work in May. ■■/. Plaintiff, let witness through his property on account of a slip. ■-■'■.■-•'. -, Henry Collier, of Rangiwaea, settler, said he came down the road being form ed by plaintiff and very little was being done. Was a,member of the Board and settlers were complaining. Witness himself went over the work and thought Connolly was trifling. - To Mr Hutchison: The weather wat showery in May and June. The whee. traffic was not heavy. ' A. C Mannington recalled, said the' minuted estimate of the cost of the road was £275. Since the contract was. cancelled it had cost the Board £144 with the use of a road grader. '•'"'■■;' To Mr'Hutchison : The work, was done by day labour. ■ " David Bell' clerk" to "the Board, said tho *"oad had cost the Board since the cancellation of the contract, £148. The last^payment to Connolly was in March, This concluded the evidence. Mr Cohen, for the defendant, submitted that plaintiff had not proved hk allegations. " There was abundant reason, from the evidence given, for the cancellation of the contract. The engineer terminated the contract in accord .an.en/with the terms of the contract itself, and for good grounds. The inter ferenccrof the Board was a legal one. The deposit wasfa guarantee of good faith arid if the Board was right the plaintiff had no claim to the deposit. The. power exercised was reasonable and authoritative. Mr Hutchison for plaintiff, said Xc was entitled to a quantum memit, anc at any rate to a return of his deposit. ,l Ic>J c as 11r> contract until December, J.9C6. The Board had a remedy of en forcing a penalty for delay, but had ■not used this. It was not suggested Connolly committed a breach of contrast No notice was given plaintitf ot- the determination of the contract ai. required, and the entry of the Board tvds not justified. The deposit was nowhero forfeited. The engineer must act on his own responsibility, not on reected responsibility. He should have soen the work himself and he did not between January and June. The Board should have completed the road on Con nolly's specification. Further argument took place on tht meaning of various terms in the contract. Hi;; Honour said the contract Was. mado on 15th December and the time flllowed was three months after the signing of the specifications. The 15tr March wan fixed to indicate the time allowed and for subjecting tho contrac tor to penalties. Under clause 4of the contract there were two remedies foi defaults, including delay The first of which 7 days' notice must be given tc tho contractor was not pursued. Under this tlio Board could take thp materials. The second remedy the Board has pin sued, i.e., the engineer undei independent authority has terminated the contract. Under tlii.q 7 dirs' nntic war.; not required and the Board had no right to take anything of the contractor's. In this case he did not think tho action had been harsh. The ensinocd had been reasonably len'ent and tho Board had been forbearing. Plaintiff's suggestion that the engineer should have been on the work was out of tho question. lie co»ld not b.-> on the plarn all the time and roust act on reports

and information he received. Evidently he did so here. The evidence satisfies mo that there had been continued delay. At no time had the plaintiff half the men working that the others had, and part of the time he had only a quarter It was the common law that if a man did not go on with a contruct or persisted in not. going on, or evinces determination not to go on the other party looks at the contract as broken. The evidence shows that the Board was entitled to say whether the contract was broken. Its patience was exhausted, the period was exceeded, every indulgenc3 was exceeded and the road was not finished for the settlers.' That being so. if the clause did not exist, the plaintiff, being under a duty of doing a piece of work for a lump sum, had failed and was not entitled to the sum he had contracted for. Plaintiff admitted he had few or no men, a difficulty which was not insuperable as the- others got men. He also says Harp had given him an indulgence not to hurry. There was no more evidence of that or that he had power to do so. What really must be judged is that Harp did warn him to be up to time when the bridge was to be opened. Making-an allowance for the indulgence granted there was still an. entire want of compliance as to time. The Board or the engineer in exercise of rights deteimined the contract. If the ordinary doctrine of law was applied plaintiff was not entitled to recover. The delay, opart from the cost and annoyance had cost the Board something and the Board had not trained pecuniarily and just got the work done. * Plaintiff had been fully for the value of the work done, and was not entitled to recover. I must act on the contract for one as for the other. The Board has terminated , the contract. It may be an end to the contract or it may leave so much standing, and that the deposit is still held for good faith. If the plaintiff is entitled to recover the £15 ho can only recover on showine the work completed satisfactorily. If it is to be completed satisfactorily by him he loses the £15. If it is to be completed generally satisfactorily the £15 is still there. When the work is completed the Board has to cfiow whether it is entitled to retain the deposit. . I am. satisfied judgment ! must go for the Board. To avoid conflict as'to the deposit it would be better to strike out the claim for it. Plaintiff probably could claim the deposit. The Board will have to show good Tea- ' son for retaining.it. Th? deposit cannot be recovered in this action. Judgment will go for > defendant with costs on the lowest scale, witoesses' expenses ■ and disbursements to be fixed by the registrar. . Mr Hutchison intimated that he struck out the claim for the £15 deposit paid and this w-as agreed to. McGRATH v. WAITOTARA COUNTY . COUNCIL. KIRKWOOT> v. WAITOTARA COUN- ; TV COUNCIL. In the above actions the plaintiffs, Belinda P. McGrath and J. C.i Kirk--1 wood (as trustee) severally sued the Waitotara County Council for £52. As the claims and. evidence were the same in each case they were taken together. Mr Hutchison appeared for each ' plaintiff, and Mr Cohen for the defendant. ' The cases were in connection with the Ngaturi Road, which was the subject of an action, McGrath v. Waitotara County Council, some, time back in" the Supreme Court, when it was decided that the road, which had been used by the Waitotara County Council as a road for some years, was not a public road, and that the plaintiff-was entitled to the land. . , The statements of claim in these actions state that the plaintiffs are entitled to the possession of the land, and that about 1892 and afterwards the de'.fendant Council wrongfully entered on ( the land and-erected fences/ spread' ' gravel, cut.ditches, and; otherwise- did; damage on the land, and deprived plaintiffs of ■' the use of, same.. The plaintiffs each-; claimed-£52 damages, made up , a#. 'follows:-—Special damages consequent on the works, of the.Council £19; special damage'for deprivation of use or. the land Jby r ,§ucli works and other acts of the Council, £12 10s j general damages, ;£2O: 'l. I The defendant Council said it regarded, the. land as a\;public road; it did work thereon, but'in so doing did not deprive the; plaintiffs of the use of the land or do any damage thereto. If it , has deprived the-plaintiff of the use of the land or done any damage to it it says £10 is ample sum for compensation, and paid such sum into Court, with costs of the action. Tlie plaintiffs did not accept the £10 as satisfaction for the cause of action, i but relied on the payment as a genera,] admission of liability, but were willing to accept the 'jfi-10 in satisfaction for the claim for general damages. Mr Hutchison called each of the plaintiffs, Belinda P. McGrath and John C. Kirkwood, who gave evidence as to the road being used as a public road by the Council. Metal had been put on the road and other, work done, and gorse had been allowed to spread. The land -was worth about £25 to £30 per acre, and Avould bo rented at about £1 per. acre. ••■•.. -■••■• L. Snow stated he had given a price I of £33, for turning the land into pasturage. He made the area If acres. The grass seed would cost £3 per acre. W. H. Blythe gave his estimate at £51,.and said it would cost about 3tis per acre to sow in grass. ■ Mr Cohen, for tlie defence, called ' William Hitchie, chairman of the Waiotara County Council, who said the adjoining land was in the market for £20 per acre. He described what work his Council had done on the road, and the extent of same. ' The prices quoted for sowing grass on the land by the other witnesses were absurd, and would ■make farmers bankrupt. The gravel would not harm the land, and would be good for pasturage. * Plaintiffs had not been deprived of the grazing. To Mr Hutchison, witness said that cattle did not graze on gravel. Witness had himself ploughed gravel land, and from his practical experience it was not bad. The Council had claimed the road for a long time, and had acted as it did in good faith. At this stage the Court adjourned at 5-3O p.m. until 10 a.m. on Saturday.