SUPREME COURT.

Evening Star, Volume VII, Issue 1906, 15 June 1869, Page 2

SUPREME COURT.

Nisi Prius. THIS DAY. (Before Mr Justice Ward and a Special Jury of Twelve.) C.RAWSHAW AND ANOTHEP.fv. TIIE MAYOR and Corporation op Port Chalmers. This was an act'on brought by Ashworth Crawshaw and Benjamin B. Willoughby, trustees of the estate of John Millar, C. E., against the Mayor and Corporation of Port Chalmers, to recover the sum of L' 2-10, together with interest at 8 per cent., for commission due to the said John Mil'ar. Mr Macassey, with whom was Mr B. C. Haggitt appeared for the plaintiffs, and Mr Barton, with whom was Mr Stewar t, for the defendants.

The declaration stated that the plaintiffs were trustees of the estate and effects of the said John M filar, unfier a deed of arrangement between him and his creditors. A'ter setting out the deed at length, the declaration went on to that on or about the mouth of June, 1863, it _ was agreed upon between the said John Millar and the Town Board of Port Chalmers that, on the cons deration that he was to receive a coinin'ss'on of 5 per cent, on all works to be executed on behalf of the Board, such commission to be not loss than LIOO per annum, exclusive of travelling expenses, he undertook the duties of consulting engineer to the Board, and as such undertook to prepare all plans and to superintend the performance of all works constructed for the Board. That under the t aid agreement there was a sum of L2OO due to the said John Millar in respect of his services as consulting engineer to the Board. To the declaration the defendants pleaded a simple denial of all the material aPegations contained in it; and upon those pleadings the issues had been stated.

The case as stated by Mr Haggitt was as follows ;—The particulars of demand showed a claim of L 240 15s, made up of five items. The two principal items were for two years’ minimum salary as consulting engineer, aijd the other items were for furnishing planar designs for seal, &c. With [regard to twir items fcr salary, Mr Millar was, in engineer to the Town Boa~d of Dunedin. ,Jn May of that year the Town Board of Poi*t Chalmers wished also to secure his services as their engineer. On the 4th of May, 1863, the following letter was written to him: — ‘ ‘ Port Chalmers, May 4. “ I am requested by the Town Board of Port Chalmers to request that you will give them an idea of the probable cost of preparing the drawings of the works of the Board at any time they may require your services. _ , “A. Vive, Town Clerk. “P. S. —An immediate answer will oblige as the Board will meet on the sth, ” He was unable to answer the letoer as requested, as, before he could take such employment, he had to consult his employers. At the meeting of the Fort Chalmers Town Board, a deputation was appointed to wait upon him and secure his services, to supei intend the execution of the Boar I’s works, &c. The deputation saw Mr Millar, and he was instructed to draw up as a memo, his terms, and submit it to the Board. He accordingly drew up the following memo ; ° “June 1869.

“ I have the honor to make the following memo, of the terms of ray acceptance of my appointment as consulting engineer, as has already been agreed to by your deputation, which waited upon me on the 31st ultimo. First, I agree to supply all plans, sections, and specifications of town improvement works as you may order, at a remuneration of 5 per cent, upon the gross value of such works, it being understood that the minimum remuneration shall be in any case not lees than LIOO a year, exclusive of travelling expenses in either case. For the foregoing I shall, in addition, afford yon withoult additional cost (save and except t-av effing expenses as aforesaid, the full benefit of my engineering experience in striking die most economical and beneficial gradients foj th e streets of the town. To conduct yqqr contracts from their first advertising for tenders to their completion, including the granting of all certificates for payments on account, maiutaiuance of works, and final certificates to contractors. Second, that I shall supply you with such assistants, as I may deem necessary in taking all surveys required by yon, or levels of surface, and setting out and checking contractors’ works, at the actual cost out of pocket, you in all cases supplying cliainmeu and staff-bearers as may be required,”

The proposal was laid before the Town Board on the same day, and the terras contained in it 'were approved of by the Board. Mr Millar acted as engineer until after the Board ceased to e::ist. During the years 1863 and 1864 there was a considerable amount of public works being carried on afc Port Chalmers, and the commission he received was sufficient to pay him at the rate of LIDO per annum during those years. No elaim was made upon the Board for commission until the year commencing June 3,1865. During that year no communication had been received from the contractors by Mr Millar ; consequently, during that year he was entitled to claim the minimum remuneration of LIOO per annum, and this claim was the first item in the particulars of demand. The other sum of LIOO was simply in continuation of the sum claimed during 1866-7. During that year also no sums were received from the contractors, and there was, therefore, a further elaim for the minimum sum of LIOO. The other items, which were for extra work done by Mr pillar, almost ex-

The examination of the plaintiff lasted for about five hours, and shortly after its conclusion, the court adjourned untill to-morrow morning, at ten o’clock.