WESTLAND CIRCUIT COURT.

West Coast Times, Issue 627, 27 September 1867, Page 2

WESTLAND CIRCUIT COURT.

NISI PRIUS SITTINGS.

(Before Mr Justice Richmond and a Special Jury). Thuesday, Septembee 26, 1867. The Court opened at 10 a.m. EDGAR V. THE HOKITIKA AMD KANIERI

TRAMWAY COMPANY (LIMITED).

Mr Button, with him Mr South, for plaintiff; Mr Eees, with him Mr Harvey, for defendants.

The following gentlemen were sworn on the Jury;— Messrs W. Shaw (foreman), F. Dale, R. Hulme, A. Clcre, A. Loutitt, D. Macfarlane, W. S. Lockhart, T. Munro, W. Fiulay, C. Louisson, T. Ecclesfield, and J. Churches. In this action Matthew Edgar, contractor, was plaintiff; and the Hokitika and Kanieri Tramway Company (limited) were defendant. The declaration alleged —

That on or about the 1-ith day of November, 1866, an agreement was made between the plaintiff and defsndants in tho words and figures following:— Articles of contract mado the 12th day of November, 1866, between Matthew Edgar, contractor of Hokitika on the one part, and the Hokitika and Kanieri Tramway Company of the other part, witness that the contractor and the Company horeby mutually covenant as follows: — That is to say, The contractor shall supply all materials with the exception of sleepers, rails, and keys, and shall construct (about 140 chains more or less) a tramway from the end of the present line to the township of Kanieri in accordance with the accompanying plans and sections provided by the Company. The wholo of the said work including cuttings, embankments, forming rail, laying and ballasting to be executed in the most substantial and workmanlike manner, with materials of the best quality of their several kinds, and to tho entire satisfaction of tho Company for the sum of thirteen hundred and five pounds sterling (£1306). Two-thirds of the value of the work completed will be paid fortnightly to tho contractor as the work proceeds on the certificate of the Engineer that the same has been done in a substantial and workmanlike manner, and in accordance with plans and sections. The remaining one-third of the money will be paid to the contractor tln-co months afber the contract is completed. The works included in the contract shall be completely finished on or before tho 24th day of December, 1866, and the contractor shall pay a sum of ten pounds as and for liquidated damages, and not aa a penalty, for each and every day during which the work may remain unfinished beyond the said 24th day of December, 1866, provided that should any bad weather occur that shall necessarily delay the completion of the work, the contractor shall be allowed such additional time beyond tho said 24th day of December, 1866, as tho Manager shall by his certificate iv writing doclare to bo reasonable. Tho contractor shall at no time within working hours be absent from tho works during the continuance of tho contract without leaving a proper foreman on the work. The contractor shall construct aud conduct tho whole of tho work under the direction and superintendence of the engineer. No condition, stipulation, or provision of this contract shall be waived, relinquished, or discharged, either at law or in equity, otherwise than by the express agreement, iv writing to that effect, made aud signed by both the parties hereto. — Matthew Edgar, Miles Ashmore, manager for the company. Witnesses— E. Prosser, B. Osborne. November 14th, 1866." That the plaintiff did all things necessary on his part to entitle him to have the said agreement performed by the defendants, but tho defendants have neglected to perform the said agreement, aud have not paid the plaintiff the said sum of L 1305. That the plaintiff further saith — That ho provided material for and performed the extra work mentioned in tho particulars of demand hereunder written for the defendants and at their request, and at the times mentiouocl in tho said particulars. And the plaintiff further saith, that on or about the time of entering into the contract hereinbefore set forth, the defendants agreed with the plaintiff that they (the defendants) would supply all necessary sleepers, rails and keys as and when the same should bo required by the plaintiff for the work mentioned in tho said contract, yet the defendants did not supply rfuch sleepers, rails and keys, as and when thov were required by the plaintiff for the work aforesaid, whereby the plaintiff was delayed in the performance of the said work, and suffered great loss and inconvenience. Wherefore tho plaintiff claims to recover from the defendants tho sum of L 2129.

PABTICULABS OP DEMAND. 25th April, 1867.

To amount of contract for construction of tramway, due three months after completion £1305 0 0 From lifch November, 1866, to 2Slh January, 1867. To extra work on contract —

Tho defendants pleaded, 1. That they deny generally all the material allegations iv tho plaintiff's declaration. — 2. And for a further plea, tho defendants say that tho plaintiff did not all things necessary on his part to have tho said agreement performed by the defendants, but, on tho contrary, the plaintiff did not supply all materials, with the oxception of sleepers, rails, and keys, and did not construct

(about one hundred and forty chains, more or less) a tramway from the end of the then preseat line to the Township of Kanieri, in accordance with plans and sections provided by the defendants, and did not execute the whole of tho said work, including cuttings, embankments, forming rail, laying and ballasting in the most substantial and workmanlike manner with materials of the best quality of their several kinds, and to the entire satisfaction of the defendants, and did nob procure a certificate from the engineer that the same had been done in a substantial and workmanlike manner, and in accordance with the plans and sections, and did not complete tho contract on or before the twentyfourth day of December, one thousand eight hundred and sixty-sis, or at a 11, —3. And for a further plea, the defendants say, that before this action was brought they satisfied and discharged the plaintiff's claim by payment.— 4. And for a further plea, the defendants say, that before the commencement of this action waa brought they satisfied and discharged the plaintiff's claim by payment.— 4. And for a further plea, the defendants say, that before the commencement of this action the plaintiff was, and still is, indebted to the defendants in the sum of three hundred and fifty pounds, as and for liquidated damages agreed to be paid by the plaintiff to the defendants for thirty -fire days, during which the work mentioned in the contract set forth in the plaiutiff's declaration remained unfinished beyond the said twentyfourth day of December, and which sum of. three hundred and fifty pounds the defendants hereby offer to set off against the plaintiff's claim herein.

PARTICULARS OF TATMEXTa.

PAMfCTJLAES OF SBT OFF. Liquidated damages, 35 days, at £10 per day '. £350 0 0

1. The plaintiff, for replication to the defendants' first and second plea 3, saith — 2. That lie joins issues thereon, and as to the defendants' third plea the plaintiff saith — That before this action was brought the defendants did not satisfy and discharge the plaintiff's okim by payment. — 3. And as to the defendants' fourth plea tho plaintiff saith— That before the commencement of this action, the plaintiff was not, and is not still indebted to the defendants in the Biun of L 350, as and for liquidated damages agreed to be paid by the plaintiff to tho defendants for thirty-five days during which the work mentioned in the contract set forth in the plaintiff's declaration remained unfinished beyond the said twentyfourth day of December.

The issues for the jury to try are — 1. Wai an agreement made between tho plaintiff and defendants on or about the fourteenth day of November, one thousand eight hundred and sixty-six, in the words and figures set forth iv the plaintiff's declaration. — 2. Did the plaintiff do all things necessary on his part to entitle him to have tho said agreement performed by the defendants. — 3. Did the plaintiff provide material for and perform the extra work mentioned in the particulars of demand written under the declaration for and at tho request of the defendants. — 4. Did the defendants, on or about the time of entering into the contract set forth in the declaration, agree with the plaintiff that they, the defendants, would supply all necessary sleepers, roils, aud keys aa and when the same should be required by the plaintiff for the work mentioned in tho said contract. — 5. Did the defendants supply such sleepers, rails, and keys a3 and when they were required by tho plaintiff for the work aforesaid. — 6. Was the plaintiff delayed in the performance of the said work, and did he suffer great losa and- inconvenience thereby. — 7. Didfcho defendants, before action brought, satisfy and discharge the plaintiff's claim, or any part thereof, by payment ; and if so, how much. — 8. Is the plaintiff indebted (o the defendants in tho sum of L 350, or any and if so what sum for liquidated damages, agreed to be paid,by the plaintiff to the defendantsfor thirty-five days during which the work mentioned in the contract set forth in the plaintiff's declaration remained unfinished beyond the 24th day of December mentioned in tho contract set forth in tho declaration. — 9. Is the plaintiff entitled to recover any, and if so ■what sum of money from the defendants.

Matthew Edgar, tlxc plaintiff, examined by Mr South — I am a contractor, residing at Hokitika. In November, 1866, tenders were called for constructing part of the Hokitika and Kanieri Tramway. I put in a tender, which, was accepted, and I entered into an agreement (produced), signed by myself and Miles Ashmore, tho Company's manager, and witnessed by Messrs Prosser and Osborne. Before I signed the agreement I was shown a plan and section by Miles Ashmore (produced). They were shown to me at the Company's office. I was to work by them. The plan and section I got as soon as I started work, but I could not get the specifica tionS'Tintil on or about the 7th of December, when Mr Frew gave them to my partner, Mr Holt. I signed the contract on the 14th November, and commenced work shortly after. I made almost daily applications to the manager and Mr Frew for the specifications, without effect. Mr Frew said that he had not time to write them out, he would have to do so on a Sunday. This is a copy of the specifications, (produced). I was making preparations a day or two after signing the contract — the Company found sleepers, rails, and keys ; I found the rest of the materials. Tho Company never supplied the sleepers, rails, and keys, only in dribs and drabs. Miles Ashmore pointed out the live to me. I constructed it where the Manager directed, I commenced it at the end of the old line by Paddy Sloane's, and constructed it to the points pointed out by the manager at tho Kanieri. There was a peg stuck in the ground at the end of an old tramway in the Kanieri Township. Ashmore pointed to tho peg and said — " this is the terminus." I performed the work in a substantial aud workmanliko manner, according io the plau and specification. I did not finish it at the time appointed, it was impossible — because tho rails, sleepers, and keys were growing in the bush three weeks after tho time for finishing tho work. Tho manager said that ho could not get sawyers enough, ho told me that he could not get men to cut the sleepers at the price, and he was not allowed to give more. I had to lend tho manager money to give the sawyers. I consider that 1 had finished the line on 25th Janu*ry,lß67. Tho directors, I and Mr Frew, went over and they pointed out where a little ballasting was required. I did it at once, and Mr Frew said to mo — "that will do." The lino was com?letely finished on 26th January, 1867. 'ho Governor and his staff passed up tho line on the 26th January. On tho 25th I saw Mr Prosser, tho chairman; tho engineer, Mr Frew, and the greater part of the Directors. The men were just finished, and clearing away off tho lino when the Governor came upon a Saturday. Two or three days before tho Governor came, I got a note from Ashmore, aud another from Burton. In consequence, I saw tho manager and told them I would not give them possession to run goods over tho line. I said " No, the line is just completed — if you

don't like it don't take it." I told him distinctly that I would not do a hand's stroke after they took possession; if they wanted anything done, they must tell me before they took possession, and I would do it. A great deal of wet weather occurred, during which . the worki were necessarily interrupted. This paper was handed to me by Mr Hope, who had received it from Ashmore. I showed the paper to him and he explained why he had only allowed half days instead of whole days ; he said that he had given the days even when the men were at work. The paper shows sixteen and a-half days wet weather; that is not correct — I claim for twentytwo wet days. Mr Eees objected that the paper could not be received as it was not correct.

- Mr Button said that the paper was good so far as ifc went, and if it vras a certificate it would bind tho Company for sixteen and a-half days. His Honor over-ruled the objection.

Examination continued — The actual reason why the work was not completed in time was the want of rails, sleepers and keys. I was put to great expense and loss through these not being supplied by the Company in time. I lost thirty days of my own time and thirty my partner's, at L 2 a day. My partner was over the bridgers and I over the platelayers ; the gaugers lost thirty days at Ll a day ; I had, in consequence of the delay, to pay 45s per chain for plate'laying instead of 38s. The msn who had been employed threw up when I could not keep them going, and I had to pay 45s to get them back. I had also to pay L 22 more to a sub-contractor for a bridge in consequence of the Company neglecting to supply materials in time. Andrew Hope (not my partner) is my gauger. The Manager asked me to let my men get the sleepers and charge the Company with the work. I did so, and charged the Company. My agreement with the platc-laycra was, that they were to do their work to the entire satisfaction of the manager or engineer before I paid them. The engineer went up the line on 2nd January, 1867, and when he had done so he ordered me to pay the plate-layers. I got the last material from the Company on the 23rd January. I had been fighting for days to get rails, sleepers, and keys to finish, and Mx Prosser, tho chairman, at last went with me to Macbeth' a saw-mills to get the keys. I have been employed on railways ever 'since I was a small boy to turn points. The last thing to bo dono is ballasting the lino. At the time Mr Frew passed the plate-laying the ballasting was nearly finished. On 28th December I received this letter from Mr Frew (produced), and which stated that he did not think it right to let plaintiff have any more money on the contract, seeing that the work would be finished in two or three days, and payment would then be made in full. ! I was delayed for the want of materials from the commencement of the week. I got this letter on 16th January, 1867 (produced), complaining of deficient work. I had not got material furnished me to completa the work on the 16th January. I attended to everything after I receieved that letter. On 28th January I got this letter sent to Mr Frew (produced), informing him that the extra work had been done, and asking him for a certificate, so that payment might be made. On the same day I received this letter from Mr Frew (produced — requiring certain alterations to be made in the work). The company had taken possession of the line on the 26th January. I refused to do any mor« work because the company had taken possession. I was never required . to carry the work further than the peg pointed out by the manager. I have had to wait wight days for the engineer to coin© and give the levels of the Old Man's bridge. It ii an extra bridge which I am charging for. I built three extra bridges ; only four bridges are shown on the plans, and I had to build seven. The extra bridges were pointed out by Mr Frew, and I said if they are done —

His Honor — This plan shows only a very short part of the line. Witness — It is the only one I ever got. His Honor — It does not show s any bridges; only a longitudinal section of tho line.

Examination continued — I told the engineer that if I put in extra bridges I should have to be paid for them. He said they would have to go in. They cost me L2lB. I charged as an extra the re-bal-lasting of thirty chains. I also chai'ged LlB for moving, ballasting, and relaying three chains. It was through no fault of mine that 1 1 had to do this work. Mr Frew gave me an order to alter another portion, for which I charge L 25. None of these extras were required by the engineer in consequence of any default by me in the performance of my contract. This is the West Coast. Times, containing an advertisement about the opening of the line.

At this stage the Court adjourned until two o'clock, at which hour the crossexamination of the plaintiff was commenced by Mr Rces. Cross-examined by Mr Eecs — When I got levels from Mr Frew I worked to them. I never altered them after his back was turned, nor did I order anybody else to alter them. I remembered getting the levels for Dan's Bridge from Mr Frew. I never gave orders to D,an M'Leod to alter the levels after Mr Frew had gone. There were three levels, and the engineer chose one. His Honor — Do you mean to say that there was not a section of the whole line ? Mr Eecs — No your Honor.

His Honor — Well, I do not know which most to admire — the company or the contractor. Ido not believe such a case was ever heard of.

Cross-examination continued — I made all the alterations directed by the manager. I followed his plans as near as I could. I know the first embankment. Frew, in the presence of Ashmore, complained that the embankment was not wide enough ; but I had no width given to me. I was never told by Frew that it was too high for an embankment, and ought to have been on . tressels over 4ffc 6in high. Frew never told me in the presence of Ashmore that fern trees and sofWaterials were being put into the embankment, which he would not allow. I had .a conversation with Frew, who said that if I would put some uprights and a longitudinal piece along a curve where it was rather narrow it would be all right. Fern trees and other materials were put into that embankment, but no objection jvas made to it. I was not told by Mr Frew to make no more embankments, but to run the bridges to the surface of the ground. I believe tho ombankment did give way, but I do not know. Ashmore did not tell mo that the embankments would all have to be altored. Some of the embankments which had settled wore raised, but they have not been otherwise altered. I do not remember Ashmore telling me that Dan's Bridge was very low. I did

not see Ashmore put in a peg at Dan's Bridge to take the levels of it. Ashmore and I took three levels, and we put in pegs together. Mr Frew was to decide which level he would take. Ashmore never asked me where the peg was that he had driven in. I did not tell him that it might have been cut out by excavating. Mr Frew never complained to me that the bridge had been lowered. I did raise one end of it with sleepers, about six inches. Mr Frew said that the bridge was low, but if a corderoyed it he would pass it. I did so and laid the road over it. The sills at the bottom of the line arc properly bedded and were passed by Mr Frew. Frew and Ashmore never told me that the sills were not properly bedded. My instructions were to throw clay into the bottom edge of the rails. The sleepers were bedded in 'the clay. I believe Mr Frew and Mr Ashmore objected to the packing of the sleepers, and it was altered. I never left any trees standing which the Manager told me to remove. The line is cleared to the proper width — that is twelve feet, in some places it is a great deal more. It may be less in some places, but I do not think v that it is.

Mr Eecs — Mention one occasion when your men had to wait for the timber which the Company ought to have delivered.

Witness— l had a memorandum, but I have lost it. About Christmas we stood for a week, and also on the New Year. I had sleepers, but no rails, as the sawyers were on the spree. I never took any timber belonging to the Company except twenty rails which jD an, a sub-contractor, took and which were replaced. Dan never took 2400 feet of the Company's timber. I paid for all the timber used on Dan's bridge. Hope used four or five sleepers in the embankment, but the Company had three times as many as I used. Ashmorc never pointed out to me that the terminus was to be at the Star Hotel, Kanieri. I ■aw Ashmore last Sunday, and showed him the time paper, and he said, " I have given you full days when you were at work." I never heard Lang or Ashmoro complain to the sub-contractors that they were packing the sleepers with chips. When the Governor went up the line, I and Lang and Ashmore had not to steady the carriage on any of the curves of my section of the line that I remember. There are washers on all the bolts— some of wood and some of iron. An embankment of four feet six inches might sink an inch to the foot, or an inch and a half. I hay© known an embankment sink more than eighteen inches. The bottom of the first embankment was rotten. When I initialed the specification, I did not know there were more than four bridges. I did not know that the plan of the section showed only a quarter of a mile of the line, The timber used was according to the specifications, or with the sanction of the engineer. Ec-examined by Mr Button — I did not make any difference, whether red or white pine. Saw laborers cutting timber for sleepers after 21th December. I saw men felling the timber in the bush after the 21th December, for the sleepers, rails, and keys. Men had to leave me because t'ae Company did not furnish materials to go on with. Bobert Hope, examined by Mr Button — I am a contractor residing at Westport. I remember Mr Edgar having the contract for the Kanieri Tramway ; I was in partnership with Edgar after he took the contract. The witness hero corroboborated Edgar'i evidence.

Cross-examined by Mr Harvey — "We ifWe-altogether 143 chains and 20 links of line, and built seven bridges ; three of these latter are not shown on the section. I tendered for the contract. I was not in partnership with Edgar for work previous to this. I made my calculation for the embankment by going up the line ; the calculation for the bridges I took from the plan. I was aware that the plan only showed about sixteen chains of the line.

His Honor — That section does not show any bridges, as it is merely a section of the surface.

Cross-examinationcontiuued — We made bridges because we were told to do them: We did not fill the gullies up instead of bridging them. We did not follow the line all through, it was so rough, and when we came to a very rough place we deviated, and went near the river. We tx)k the line wherever the manager pointed out. The line is properly cleared to the width specified. I would not swear that in evary portion of the line it is cleared to the width of twelve feet. When we commenced the work we began at both ends also in the middle of the line. The company got their timber from the saw-mills at Hokitika, and also from sawyers in the bush. We could have finished the line by the 24th December if the company had furnished the necessary material. We had got the-wliolc of the line ready for the plate-layers, and the bridges were built by the 24th December. We could not put the planking down on the bridges until we got the sleepers, as the sleepers and the planking have to be worked in together. The whole of the bridges were not ready to receive the planking and sleepers, because ■we could not get the levels of some of them ; we waited for the levels at the Old Man's bridge and for Dan's bridge. The cutting at the Kanieri end of the line was scarcely finishedby the 24th of December, and were greatly hindered through not getting the levels from Frew, although we asked him repeatedly for them. There was a scarcity of red pine, and Mr Frew sanctioned our using birch. I do not think I put washers on all the bolts, for all did not require them. If I had seen white pine beiug used on the line I should have rejected it. Ido not recollect being told by Mr Frew that the first embankment was not properly done. I will not undertake to swear that there are not four white pine uprights in No. 3 viaduct. Ec-examined by, Mr Button— All the progress payments were made after No. 3 bridge was completed. Shortly after the plate-laying was passed on 2nd January, Mr Frew gave us an order for L3OO. The Court then adjourned until 10 o'clock next day.

£. s. d. 1866, December 16th, cash for cheque 1866, December 22nd, cash for cheque 1867. January 3rd, cash for ohequa 200 0 0 200 0 0 300 0 0 £700 0 0

„ Re-ballasting thirty chains 60 0 0 „ Erecting three extra bridges 218 0 0 „ Moving, relaying, and ballasting three chains of tramway 18 0 0 „ Raising five chains fifteen inches higher, at Engineer's request 25 0 0 „ Labor of six men for one clay carrying out sloepors 3 0 0 i, Dauiago caused by delay in providing materials 500 0 0 £2129 0 0