THE SUBJECT OF LITIGATION.

Wanganui Chronicle, Issue 12881, 29 May 1913, Page 8

THE SUBJECT OF LITIGATION.

T.ho - memorial which was in Moutoa Gardens lasV year; has become the subject'of litigation. The case -was commenced at Palmerston North sittings of the Supreme Court on Tuesday, when Frank Harris and Co., Ltd. (in liquidation) and John Gilford ResteM," accountant liquidator of the -Company (Mi-. Myers and Mr. Fitzherbert) sued R-dra Hakaraia (Mr. Loughnan) foi £600 for work done,, counter-claim £550 refund of moneys paid. In the statement of claim it was set out that plaintiffs up.-to September 18, 1912, carried on business as* monumental masons at Auckland .and elsewhere in tho Dominion. The company went into liquidation.. By ..a, . written* order, dated July 25, 1911. the defendant employed Frank Harris and Co. to erect a monument to the memory of the Late Major Kemp, deceased, at Wanganui, for the" sum of £1000. That on November 1, the defendant employed plaintiffs to inscribo additional inscriptions on the said monument for £150. thereby making the total price £1150. The monument was duly completed by plaintiffn on or before September 2G, 1912. B-^oro proceeding with the monument defendant paid •'plaintiffs £300 ?„ » deposit. Since the erection the liquidator has received the sum of £250 on account of the contract price of £1150 thereby leaving, a balance of £600 still V^aX / nter*Rt w«s "ilsp claimed on the £600 from October 11; 1912. Tho statement iof defence set out that the monument was not a likeness ot Maior Kemp, was not made in Italy nit was made in Auckland; that the baso of the monument was not made of Aberdeen granite but of Coromandcl and that the whole work ,wns badly done ami does not comply with tho terms (of the contract and" is of no yaluo to the defendant. That o:i October 1912, defendant refused to pay tor tho monument and entered into a now contract with plaintiffs hi which rlmntiffs agreed to re-orect the monument and to replace the figure already constructed with a now one. Defendant agreed to pay for the -w!iokv work wnon the, now fiaure was completed at tho rate , c f £1150. Plaintiff bad refused and neglected to act in accordance wuh tho second contract, therefore it wan claimed that tho contract was abandoned by plaintiffs. In regard to tho counter-claim, it was alleged that defendant had paid pla*ntiflrs in all £550. The plaintiffs had not perxormod either of the said contracts, and had neglected, refused, and still neglected and refused to perform .such contracts and had abandoned tho same. Judgment was asked for asked tor against plaintiffs for £550, and interest on same.

.Iho following jury were empanelled: --^^""•w (foreman), Harold* Best, P. Smith. G Walther, J. Aitchison, 11. Gunter, H. B, Miller, J. Sweenev, N. Sinclair J. Older, A. Millar. * John &. Rest-ell, accountant, of Auckland, said ho was secretary of the plaintit! company to September 18 1912 when tho company went'into liquidation ancl he was appointed liquidator. The object iof liquidation was to amalgamate with another company. Mr. Harris was _m charge of Balmerston branch. .No instructions were given to H?rris to vary the contract in any -way. Walter Grace, traveller "for Dowdal* and Co., monumental masons stated that in May. 1911, ho was head traveller for Frank Harris and Co. About .-his timo ho received from Vaughan a sub-agent, tin .order for a monument to the lato Major Kemp at £650. The order was signed by Rora Hakaraia. He wrote to tho head office reporting this order. The order was held :-i----abeyance because it was mooted that the Government was prepared to assist in tho matter, and.witness interviewed! feir James Carroll to obtain from him a definite .'assurance on this point. Witness saw Sir James, and in consequencemet tho defendant again. Ho told them

that, the Cfovern-ment would subsidise tho monument up to £300. Mrs. Hakaraia said she "would letiher,£6so stand, good and allow the Government subsidyto be in the form of an addition to erect a better monument. The improve-' n\ent suggested was the addition of panels depicting some of the stirring scenes in Major Kemp's life. Witness undertook to search the I'eeords of the Maori war and supply the data, and let the Maoris have the choice of what scenes be depicted. Those selected were: —Moturoa, Te Pungarehu, Maraetahi, and Purere. He'said, there wero two artists in New Zealand capable of doing the carving—Feldoh, of Auckland, and Illingworth, of Wellington. Witness was asked which was tho better man, and replied that it was difficult to choose, as' they were both oood men. He said he thought it would bo better to employ Feldon, as he resided in Auckland. McDonald said it would be better to have Illingworth to do the work as it would be more convenient for Rora; who was of advanced years, to travel to Wellington. It war. ultimately agreed that the Auckland man should do the work. Witness asked if they had any photos of the late Maior Kemn for the artist's guidance. Rora referred him to an bi!nainting in the~ Waitganui Museum. Ho submitted six samples;of granite: . sho was not particular, but ©referred the grey Aberdeen granite. McDonald ■agreed to pay the deposit of £200. Witness rointed out that he only had o nromiso froiti Sir James. Carroll, and bin Government nirght be dpfeated at tho next election. McDonald assured him that R;ora would' Tie able to stand tho full amount even if the Government were defeated.' The firm were anxious to please the Maoris for their own sakes. tas they ''anticipated- other MTiiilar commissions. There was no fraud about tho transaction, and Rora understood tho afrreement•..-tnrough . before it was signed. Capt.Preece alKo assisted in the selection of battle scopes. ■■"■ "•■ '■■• --'■ ' ■•■■ ""■ ■•'

- Tho adjournment was then taken till 'iext morning.— -lf Times."