AN ACTION INVOLVING £20,000.

Dominion, Volume 5, Issue 1269, 26 October 1911, Page 5

AN ACTION INVOLVING £20,000.

THE DOCK. PITCAITHLY & CO. & M'LBAN & SON IN SUPfiEMP COURT. Wellington's dock—or as raucli of it as has been constructcd-figured in a cpecinl oase in the Supreme Court yesterday, i The parties to tho act.'on were Pitcaithly and Co., contractors, plaintiffs, and John M'Lean and Son, contractors, defendants. Mr. H. D. Bell, IC.C., with him Mr. P. G. Dalziell, appeared for plaintiffs, and Mr. C'. li. Morison, with him Mr. A. W. Blair, for the defendants. The Preamble of it. In the original action, Pitcaithly and Co. claimed n .£20,000 us damages tor alleged loss or profit. It had, however, been agreed that, before hearing this case, certain questions of law should be settled by stating a special caso for the Supremo Court.' This spccial case was heard by the Chief Justice (Sir liobert Stout) yesterday. Tho following facts were admitted, but for argument of the questions of Law only:—On January 31, 1007, the Wellington Harbour Board accepted M'Lean and Son's tender for the construction of the graving dock in Wellington, and, on February 6, 1907, M'Lean and Son entered into an agreement with Pitcaithly and Co. for tho supply of gravel and sand for tho work. In accordance with the terms of this agreement, Pitcaithly and Co. were called upon to supply all the gravel and sand for the dock until the cessation of the works. They duly supplied it for the concrete work. On September 2S, 1910, a deed of release was executed as between the Wellington Harbour Board and , M'Lean arnd Son. This was delivered about January 12, 1911, and became effectual, in consequence of the passing of tho AVellington Harbour Board Empowering Act, 1910,.which came into force on December 3, 1910. What Pitcaithly and Co. Contend, Piteaithly and Co. contend that it was an implied condition of tho agreement of February G, 1907, that Jl'Lean and Son (should proceed with the erection of the dock and complete it, and that they iihould not niter into any arrangement whereby the contract should be determined. In the alternative, they (Pitcaithly and Co.) contended that, if no such condition was implied, and if M'Lean and Son had a right to elcct (and did elect) to determine the contract with the Harbour Board, M'Lean and Son were, nevertheless, liablo to pay to Pitcaithly and Co., aa damages, tho whole of the profit which would have accrued to tho latter, if the contract with the Harbour Board had been completed. The View of M'Lean and Son. On tho other sido M'Lean and Son contended that no such condition as that mentioned by Pitcaithly and Co. had been implied in tho agreement. They denied that they were undor any obligation to Pitcaithly and Co. to complete the work, ar to order any gravel and sand from that firm other than what was required for work actually carried out. They admitted, ..however, that they were bound to deal solely with Pitcaithly and Co., eo long os tho work proceeded. By reason of the depth of water* in which the concrete work had to be deposited, it was found that the concrete would not' Bet or become sufficiently solid. It was then found that tho contract was (according to plans and specifications) impossiblo as_ a commercial undertaking. It was submitted that the dock could not havo been constructed in any manner by M'Lean j and Son, and that, even if it could havo been constructed by them, the expense , would have been so great that the. con- ! tract price would have been inadequate ! to remunerate them. M'Lean and Ron , furthor stated that tho unforeseen difficulties, which arose'during thoir attempt- , ed construction of the dock, rendered that construction so expensive that they were , financially unable to continue their work ' and, in ordor to raise the necessary capital to proceed with the work, they disposed of their business (including the contracts mentioned) to John M'Lean and ; Sons, Ltd., and tho company raised the capital, which it considered necessary for that and other works, by the issue of preference shares. Finding the work im- 1 possible (except at a loss of manv thous- , ands of pounds) the company refused, and was unable to provide funds. M'Lean find Son had thereby been prevented from completing the works, and had been compelled to abandon them against their wishes. M'Lean and Son therefore contended that they did not "voluntarily" ! tbandon the contract. And What is it All About? Eight questions were submitted to tho i Unirt for answers, but after hearing a , portion of Mr._ Bell's opening argument, his Honour said: "The question appears to be simply this: Whether it was a contract to purchase a certain amount of gravel or to purchase according to requirements?" Mr. Bell agreed that this was the point. Argument occupied until nearly 4 p.m. His Honour reserved decision. THE WAIKATO SWAMP CASE. ] HEARING CONCLUDED. ( Argument was concluded yesterday, in ! the Supreme Court, before Mr. Justice ! Chapman, what is known as the "Waiknto Swamp" case. This was an action 1 brought by Herbert Carter and James E W. Body against John W. Chapman, of { Wellington, for rescission of an agree- ' ment to purchase certain land in the Waikato, and also for recovery of the ■' snm of ,£507 10s. -id.—the amount paid ■ 1 out of pocket bv Carter and Bodv, the * plaintiffs. Mr. T. M. Wilford, with him j Mr. W. J. Cracroft Wilson, appeared for i plaintiffs, and Mr. A. Gray, with him J Mr. C. W. Tringham, for the defendant, t Tho action first came before the Court ' on March 8 last, and was founded upon < three alleged misrepresentations. Hear- t ing of evidenco extended over several t days, at tho conclusion of which the caso t was adjourned sine die for the hearing of 1 counsel's argument. It came before tho c Court again on Tuesday, and was con- ] tluded yesterday morning. r Decision was reserved. f