DISTRICT COURT.

Wanganui Herald, Volume XII, Issue 2956, 12 June 1877, Page 2

DISTRICT COURT.

Monday, 11th June.

(Before Jti. E. Kenny, Esq., District

Judge.)

Henry Percy Nevett and another v. the Immigrants and Colonists Aid Corporation.

Mr Hutchison for the plaintiffs, Mr Fitzhei-bert for the defendants.

This was an action for the recovery of damages on an alleged breach of contract by the defendants.

H. P. Nevett, contractor, deposed — 1 live at Halcombe Town. In December I entered into a contract with the defendants, for work to be done on the Makino Road, about 3 miles from Foilding. The contract was signed on 11th December. 1 had a co-contractor named Saxon. The work was to be done on a new line of road, one that had never been metalled before ; the road was not ready for us to commence opeiations on the 11th; the ground was much too soff, it lay all through the bush, and was supposed to be a chain in width, which, however, it was not at that date ; we were to commence work in January ; the bush was being felled to make the road the proper width at the time ; we were to be told when the road was ready for us ; we commenced work by getting the water off the middle of the road about the 28th of December preparatory to putting on the metal ; the pits had to be opened and roads made out of them before we could besin ; we put on seven men in January, starting to work ourselves on the 9th of that month ; the weather was fine about that time, but the rain came soon after, and the weather continued to be very wet during the month of January, so that we could not get on with the work on account of the teams ; we were not able to make much progress ; a road of that sort could not be properly metalled in wet weather ; the Corporation never found fault with our desisting to work during the wet weather ; we commenced to work at the Makino bridge ; we were told by Mitchell, an overseer, that we should not go on with a certain part of the road on account of the softness of the soil, we therefore skipped that part for the time, and continued further on, getting the gravel out of the same pit as we had used for the first part]; we left off there because that got too soft, and went on still further ; we went to this last part because we found it considerably dry, and a piece that we could work in wet weather ; we proposed working from it to a further piece ; the Makino end was to bo metalled from the creek if possible, if not, from another pit ; the creek was in flood during January and February ; only once wo were able to get metal from it, but did not consider it worth our while, the creek not being low enough ; it is usual with contractors to metaT roads in parts, commencing them when circumstances will allow ; contractors do not go over their own metal with carls if they can avoid it ; we were paid for some of the metalling which was measured about the 19th February ; it amounted to about 9 chains, and we were paid 50 per cent on the 15th February ; no complaint was made as to the prosecution of my work ; we were working at the lower pit on the 19th February, connecting two parts that we had completed ; Mr Bray, one of the Corporation overseers, came up to myself and Saxon my partuer ; he handed us a letter, of which the produced is a copy ; the receipt of this letter took me by surprise ; I don't remember saying anything to Mr Bray at that time, but he said to me that he thought we might make arrangements to continue the work if I were to go down and see MriVlcAnhur ; Mr Bray said that we might go on with the work for that day, it was about noon when this coversation took place ; wedid continue the work that day as usual ; during the interval between the 9th and the 19fch of February we had done about 6 or 7 chains ; I completed my day's work and went down with my partner to see Mr McArtbur at Feikling ; we met him on the Manchester Rocaci ; Sir McArthur is one of the officers of the Corporation ; I told him that I had come to see him about the letter, and asked him what was meant by it ; and he said that he intended taking the work over as we were not doing it fast enough ; he said that he did not wish to be hard upon us, and that very likely we might come to some arrangement ; he said that we should continue with the top portion of the work and they should take the lower ; the new arrangement would have to be expressed in writing, Mr McArthur said, and that in the meautime wo must work on the old terms ; the new agreement was to be sent up to us for perusal and signature at the works ; on the following Monday we received some papers from Mr McArthur wlaich. vrere brought to us by Mr Bray ; document produced is the same that I received attached to the original agreement ; this agreement does not in the least express the conversation we had with Mr McArthur ; no mention was made by Mr McArthur of rescinding the original agreement; it was not specified by Mr McArthur that the work was to be done in a continuous manner from the upper end, nor did we understand that to be i the suggestion ; ifc was not possible to metal the road in a continuous and unbroken manner ; we told Mr Bray at the time the agreement was not according to our conversation with Mr McArthur, we objected to the terms and refused to sign stating to Mr Bray that it was impracticable to do the work in that time ; Mr Bray said that we must either sign that agreement or he would take the work over ; ho said that we should not be paid for any work after that ; he suggested that we should see Mr McArthur again he being unable to alter the terms himself ; he told us to discontinue the work : we asked him for a written notice that he had taken the work, and he said that the notice of the 19th was sufficient ; we then knocked tho men off and discontinued the work, in consequence of this intimation ; between the 3 9th and the 23, we did about 16 chains ; Mr Bray made no objection about the work during that week ; we had 5 teams working on the 26th ; between the 19th and the 26th we considered ourselves to be working on the original contract ; the contract stipulated that the work should be completed by the 30th April, and we had a reasonable expectation of getting it done by that time ; our claim for damages is for the niens' wages, hire of teams, and loss of time, etc. etc., during the time we worked at the contract. Cross-examined by Mr Fitzherbcrt.— In a conversation we had with Mr McArthur relative to the contract I do not remember his having told me that the question of time would be pressed ; after signing the contract we explored the land before the Ist January to rind gravel pits ; we opened up two pits and commenced a third about the 22nd of February, we cleared off the bush preparatory to sinking for gravel ; Mr Witchell was the inspector, and Mr 0, Bray tne overseer of the work we were doing ; I did see Mr Bray several times during the month of

January, he did not complain of the slow progres^we were making, referring only to the badness of the weather ; he complained 'once or twice iv February ; we told him we would put on extra teams when the weather cleared up ; Mr McArthur did complain of the slow progress we were making but appeared to attribute it to tha weather ; he allowed us to make a certain clause in the contract, and employ a certain individual ; I am aware that Harvey and McCall had a similar contract to ours for metalling, they began before us, 1 do not know how long, I do not know what progress they made, but I know they could get on faster on account of the harder nature of the soil, where they were ; I am aware that they took gravel out of the creek once ; I might have said, ' Well, we must put up with it ' when the letter was given me by Bray. When we called on Mr McArthur that evening he certainly did not treat tho original contract as rescinded ; I do not recollect his saying ' I will give you. this chance,' I am quite sure that it was not his suggestion that wo should gravel from the Makino end. Ifc was not mentioned that the Corporation should begin at the extreme end ; Mr McArthur refused to give us any information about the number of teams that the corporation intended to put on the work ; it was Mr McArthur's suggestion that we should go on working under the old agreement until the new arrangement was written out ; Mr McArthur told me in the presence of Mitchell not to put any more metal on No 3 line, that if I did, it would not be paid for ; I remember his saying that we were to go to the upper end, but I do not remember the words according to the agreement made last night ; I am sure that Mr McArthur did not refer to me as to whether what he said to me was correct, and I am sure that I did not say ' yes ;' we moved that day from the No 3 line to the upper pit ; Mr MeArthur complained that we were picking easy bits to do. I never stated that the contract was rescinded on the 19th to the 23rd Febuary ; I do not recollect referring to the contract as being rescinded, on that occasion ; I did say something about the new agreement, and was proceeding to explain when I was stopped; we had intended to go up with half the teams on the same afternoon as Mr McArthur told us to go, and rather than have any disturbance with the Corporation, we went up together ; when the Corporation took the work from us they completed it themselves ; the overseer never stopped us on account of wet weather ; the Corporation opened up fresh pits when they started the work ; I consider that our pits were properly constructed ; between the 19th and the 25th, I did not repudiate the idea of their being a fresh arrangement ; when I was paid nothing i was said about the slow progress of the work.

Re-examined by Mr Hutchison : The Corporation finished the work by the 30th April, they abstained from using our pits ; we should have been obliged to open another pit, besides, we had already commenced. The overseer never found fault with 4 us for desisting in consequence of the bad weather.

John Saxon, co-contractor, deposed : The road was not available for the contract until January, the bush on either side not being felled, which prevented the sun and wind from drying the ground ; we began operations on the 9th January, we began at the extreme edge of the JVJ akino Bridge ; the Makino river overflowed and filled the pit,consequenlly we had to desist at the No 2 ; we then went to the next pit ; we had two or throe days after we went up, then showery weather ensued, and the month was generally very wet ; the mouth of February was also wet at the commencement ; it cleared up about the 15 th ; it was so ivet that the roads were quitj impassable; the overseer did not come up from the 6th to the 12lh ; we could not got the teams on the road ; we were paid for some metalling done up to the 9th February ; I remember Mr Bray coming to us on the 19th ; he delivered a letter to us, of which produced,is a copy ; I was very much surprised at the receipt of the letter ; he said we had better keep on working that afternoon, and go down and see Mr McArthur in the evening; he said he would write out an agreement and send it to us, in the meantime we were to continue as we had been doing ; we continued at work until the 26th of February ; on the Tuesday following wo went to the upper pit, the river having fallen sufficiently to allow us to take gravel from the pit; we had intended to go before McArthur came ; the document produced is what Mr McArthur sent us up ; it did not express <he sense of the conversation we had with McAvthur ; it was not practicable to carry out the work according to the proposed agreement ; from the 19th to the 26th Aye were working under the old contract ; we declined to s-ign the new agreement; Mr Bray said that if we refused wo were to leave off, as we should not be paid for anything wo should do ; we accordingly desisted ; we had done about 26 chains in about 6 weeks, tho greater part of which time had been Unfavourable weather; we could reasonably expect to finish the work by the 30th April.

Cross-examined by Mr Fitzherbcrt: I had two previous contracts with the Corporation, on one of which a complaint was made of my delay ; with reference to this contract, Mr McArthur said thoy wished to have the work pushed on ; we mado a road to one of the gravel pits before January the 9th ; I do not recollect making any complaint as to the progress of the work during January ; nor did I hear of anything during the whole time we were at work, till the letter we received from Mr Bray's hands ; we had engaged teams to put on when we heard from Mr McArthur ; Mr McArthur told us to woik at the upper end ; he would put the Corporation team to work at the lower, and that we should continue till we met; I had no conversation with Mr McArthur on the works ; I certainly never avoided Mr McArthur ; we had to take a considerable amount of stripping off the gravel pits ; I consider that they were properly opened and worked ; we were prepared to supply extra teams.

By the Bench : I consider the contract to have terminated on the 26th.

Thomas Morrison, farmer, deposed : I worked on the contract of Messrs Nirel t and Saxon on the Makino road about the 13th of February , I only saw a part of Hardy's contract ; we stopped working when it rained heavily ; 1 know that arrangements were being made for fresh teams ; 1 consider that the work might have been completed in the specified time with fresh teams.

Thomas Pudney, labourer, deposed : I was working for Hardy and McCall in January, near the Makiuo bridge; ifc was very wet in January ; I started work on ihe 4th January ; the weather delayed the work ; in consequence of the wet weather there was no work done on the

Makino road during February ; tl-o state of the road on which Nivett an I Saxon was- working was very bad, an I some very bad stuff had been put on the roads for formation, bearing the gravel very badly in the wet weather. This closed the case for the plaintiffs.

(To be continued.)