SUPREME COURT.

Dominion, Volume 2, Issue 437, 20 February 1909, Page 10

SUPREME COURT.

CIVIL SITTINGS. ; -i CI.AIM UXDJiR A CONTRACT. DOES "DECAYED" TIMBER INCLUDE ' WORM-EATEN I'IKCES? ' : Tho, notion between Staunton and Kiilgj contractors, and Wellington Education ■ Board was oontin'ucd beforo Mr. - Justice Cooper yesterday. Mr. Wilford (with, himMr. Lovi) appeared on behalf, of plaintiff, and Mr. Johnston for tho defendant board. Tho facts in this case were that-plain-tiffs had a contract with defendants to remove, a. school-house from ono sito to an-other-in the Upper Hutt district, for the sum of, £286 Bsi It was provided in tho. specifications that all decayed timbers should bo replaced by heart pieces. After plaintiffs had : done a certain amount of preparatory work, they applied to the local authority —tlie Town Board—for permission. to take tho building along roads under its control.,! No objection .to plaintiffs doing, as thay pror posed was made, but it was pointed. out, to them, that they-had not received permission to re-erect .tho school, which - mission. would nofc b&'given ".until; the build-, ing had been approved under the by-law. Some time later tlie building was-condemned and when plaintilt's,. at tho instance of tho j board, proceeded with the. work thoy- were.; proceeded against by tho board,, and-fined £2 per, day from that day if they went on ■with the,. contract. ' When operations were again discontinued the board entered. ■ into possession, of the works, timbor, 0t0.,: belonging to plaintiffs, Who now sought to recover £411 ,16s. lid. For the defence it was contended that one of tho provisions of the-contract which was .entered, intc- was as follows ;—"The building shall not be altered from-its present plan, and; the contractor shall put the work back as neatly as can be dono under the cicrumstances, and : roplace all decayed timbers." Defendants denied ,that they gave any .assuranc6'_ to. plaintiffs-that-no permission was required from the local authority in regard to the works,; Plaintiffs, • they alleged, .wrongfully, i-efuse'd to replace decayed timber,. and to carry , out tho work in accordance with tlio plans and specifications.. ... li'iirthor- ovidence was given-in: support of the olnim. ' .Among-- the' witnesses,;called by plaintiffs £a»' W. H, Bennett, ..building oontractor Ho. stated - that .tho vvords. "dc--cayed limber": meant timber which had become useless owing- to tho atmospheric conditions, but • not merely through the action of borers. A serious principle was involved in the action so- far as contractors were concerned. - He would emphatically say that dccaycd timbers, did not include worm-eaten timber. - |- -, „.His Honour:. Supposing that-a.new cOnt,. which - Was placed -in a wardrobe, was riddled by moths, would you call tlio coat decayed, or worm-eaten P-yOh, it must be called motheaten, not decayed., . .Witness; If decayed timber ihiist* be understood to include worm-eaten timber, you Won't' get a contractor..to tackle a job relating to alterations,, in- Wellington, at; any rate, . ■ ■ Harold D, King, one of the plaintiffs, estimated Ithat 70 .per cent, of the 'timber in. the school was worm-eaten./ Defendants', clerk of works had told him that ;a t permit not be necessary, but if. it, were .".wo won't, have any trouble ..in getting"one." i foi? plaintiffs: W,6r.e'.:-irsValr .ter Levin!. Thompson, presidcnt:,of the'Buildcrs' jAsSiciatiori; John S. Swail, ' architect.; John-Jlatthswa, builder,, and ' contractor': Walter Jordan, carpenter and. joiner; and John Pine,, carpenter' and ioiiler.

/ ,' NON-SUIT I'OINTS RAISED. For the defendants, Mr. Johnston moved for.a non-suit on- tho following grounds:— (1) That it was J tho duty of plaintiffs to obtain the consent .'of ;the local authority, and that.i'-they.failed to do so;, (2) That plaintiffs Contracted subject-to tho local bylaws, andi.refuse'fl ~to. conforin.,.to i the same; •(8) -That, -praintifftfi refused. to. ; 'accept a permit; and refusedSto'replace;or.give a guarantee to replace; decayed timber to the Sat■isfabtion of; tho ~; \ local iutho'rity; (4). That plaintiffs refused.'to, carry out their contract by repla'cirig , such, timber as ' was decayed ; (5) 1 -That ,there 1 was no .evidence? of a 1 custom' that decayed;'-'tipib.er does not inoliide worm-eaten'timber,j' (6) That there was no dutv on tho; board to..'replace.-;decayed ■unsound or wornl-eatdn' timber, or tiv-Vsup-ply sound timber; (7) That if the performance of the. contract' |3eoani6 ; impossible in the sense that the; re-erection,.would be that of : a new building, 'then the contract was impossible in law, then the ,contracfc. waß discharged by operation ;of law;, (8) That if the contract .w*is : ''. ah illegal contract or discharged ab linitis.;. v '(9); That the: by-law I was unreasonable.' It was agreed; that argument oh the points raised 1 should! be heard .subsequent/ to the i taking., of evidence for the defence. *. ;■ Resuming, counsel 1 -.' stated'/''that; evidence would be called tto shovp .that'plaintiffs'; had not done anything like'-.as much'work- as Was claimed by them. There. Was-' some - urge'noy in'the; matter, as accommodation was ! needed for the children., Plaintiffs'-'.'implored i the board to make some arrangements to enable them: to carry, out the work, . Reputable builders who bad had -much-experi-ence would say thaet the words ''decayed timbers" included w.orm-eaten picces.,; It would, be-shown that there was' only ,about 8 per Cent; of worm-eaten timber:in .Hhe' structure. . Plaintiffs .had ! spent a "lot; of money foolishly/and. if-they.'were entitled to anything it could only bo for the value of the work actually, done.. :■' .: --. > . / ■ Wm. Turnbull, .architect, called .by the board, stated, inter.alia, that.decayed timber, was generally understood to -mean worm-eaten and other kindsof unsound timber. 'It was only on rare-occasions that ,'drjr. rot was come aoross in Wellington.; De- '• cay in timber hereabouts was mainly caused by borers. As a rule, it w,as th<? contractor iind not the employer who. obtained the building permit. .

Other witnesses called yesterday for the defence were'. "Archibald M'Dougall, clerk o5 works' .to' the Education ; Francis Ponty, architect; and Frederick do J. Clere, architect. " The hearing will be resumed this morning., RESERVED JUDGMENTS. LIABILITY FOR GRADUATED TAX. Decision was given by Mr. Justice Coopor yesterday with regard to a special,case in which the plaintiffs were Waltor ; Awdry. Peek and Charles R. W. Hoath, trustees in tho Heath Estate. The defendant was the. Commissioner of Taxes. , The facts were that on August 2o; 1906, the trustees' sold a property belonging to the Heath Estate, to. William Georgetti and' others for £95,000, under an agreement, and loss than .15. per, cent, was paid by way pf;de-. posit. In September, 1907, the purohaso was completed, and in October, 1907,. the Land and Incoilio Account Act of 1907 was passed, varying tho mode of assessing the interests of vendors and'purchasers. This Act imposed an additional graduated tax on owners. The question at issue was whether the vendors_ were the owners on March' 31, and so liable to pay graduated tax. . His Honour answered tho question stated in tho case as follows:—Tho amount payable by; plaintiffs was the amount of £1069 9s. lid., demanded, by the Commissioner 011-July 27, 1908. ' Plaintiffs aro not, in my: opinion, entitled to any deduction under'sub-Section 3 of Seotion 18, as possession was not de--livered to tho purchaser before, by virtue of tho. retrospective provisions of tho Act, the liability of plaintiffs to pay the taxes accrued. In my opinion, as Mr. Levin did not obtain possession of the land until September; 1907, ho did not become tho "owner" of tho land 1 within,the meaning of Section 15 of tho. Act, or liable to pay graduated land tax within the meaning of' sub-Scction 3 of Section 16, in respect of the assessed value of the land agreed .to- bo sold, the levy under tho Land Tax and Income Tax Act, 1907, being upon land which by virtue of the provisions l of the Land . arid Income Assessment: Amendment Act, 1907; was "owned" on March 31, 1907, by plaintiffs and not by Mr. Levin. ■ Mr. Hislop and Mr. .Johnston, -appeared on behalf of the plaintiffs, and Mr. H. 1), aeIL,K.C.i for the defendant,,

ASSETS OF A PARTNERSHIP. • Judgment was also givon with respect to th 6 ease of the representatives of the late Dr, Reed versus George Simpson, flaxmiller, by Mr. Justice Cooper, • The questions in dispute arose out of tho ■following facts Dr. 'Reed, whilst residing at Palmerston North, entered into partnership with Simpson :in a', flaxmilling business in 1003. Under the agreement Simpson was ■to carry on the business in his own name. Simpson. Bliipped flax Home through A; S.. Paterson and Company, of Wellington, from whom ho obtained advancca." In February, 1005,. ho gavo a bill of sale to them covering the whole of' the. chattels comprised in the partnership. ; An application for a further advance was- refused. Subsequently, he obtained from Levin, and Company an advance of £3000, which was used mostly to pay off Pate.rsCiv and "Company's mortgage, the balance being used for partnership purposes. •Simpson- gave-a bill of sale to Levin and Company over the partnership chattels for the sum advanced. Iu the meantime Dr. Roedj having seen a notice of Simpson's mortgaga to.PdtersM arid Company in the Mercantile Gafcetto, instituted proceedings for,tho dissolution of, the partnership, and' a receiver was then' appointed. Tho.'-notice of'. the proceedings was actually served on Simpson two days before he obtained the advance from Levin and Company, but the latter had no notice of the' proceedings. During the course of the winding-up of the partnership, •it was found that Simpson's lialfSharo was not sufficient to pay Levin and Company's debt. Levin and Co., therefore, claimed that their mortgage subsisted over .the whole, of the'partnership property. The questions for consideration were: (I)'. Whether Dr. Reed or his representatives were estopped, through their oonduct, in allowing oimpson tb have soleioharge of "the business, arid to carry it on in his own ,name, from claiming as against Levin and Company, tho Mortgagees, a half-sharo therein; and (2) Whether in tho event of Levin and Company being successful in establishing their claims they, were entitled to mortgagees' costs as between solicitor and client of not. Hie Honour, without deciding as to the validity of Messrs.' Levin and Co.'s security, held that the firm -were entitled .to payment Cut of tho_ partnership assets of the full amount of its claim. They were, he found, secured creditors in relation!to the chattels set forth in the schedule to the' bill of salo, but not in relation to the firm's interest in i, ?. Wiutntapia mill site and milling rights, l , .™?ir security over these, being limited by the _bill of sale to Simpson's interest only. and. Co, .were not entitled to costs as: between • solicitor and client, but would be allowed costs in the Court of Appeal and of ithe hearing, before him. ' Mr. Skerrett, K.C. (with him Mr.' Gifford Moore), appeared on behalf; of the .representatives of Dr. Reed, who died .subsequent to the institution or proceedings, -and Mr. Bell, K.C. (with him Mr. H, H; Ostler), represented,. Levitt and Co. " •'. . . , &