SUPREME COURT.

Evening Star, Volume VIII, Issue 2140, 16 March 1870, Page 2

SUPREME COURT.

CIVIL SITTINGS. This Day. (Before Mr Justice Ward ai)d a Special Jury.) MACKENZIE V. CALDER. This was an action to recover a balance duo on a contract. Mr Barton and Mr Stewart appeared for the plaintiff, Alexander Mackenzie, a contractor ; and Mr Smith and Mr Macassey for the defendant, Hugh Caldcr, also a contractor. The plaintiff’s declaration stated that on or about the several dates mentioned the plaintiff, at the request of the defendant, performed certain work, and supplied labor and other materials, amounting altogether to 1/2,(511 9s Jil, which sum is still due and owing ; a second count stated that on the dates mentioned the defendant received moneys for the use of the plaintiff’, amounting altogether to 1/2,(511 9 s 4d, which sum was also due and owing ; a third count that, in the mouth of May, 18GG, the plaintiff wrongfully converted to his use nine wheelbarrows and number of picks and other articles to the plaintiff’s damage of L.'jO. In answer to the plaintiff’s claim the defendant pleaded,—First, denying all the material allegations contained in the declaration ; for a further plea, that in respect of L 1377 part of the moneys claimed, at the time of the commencement of the action, plaintiff’ became and is still indebted to the defendant in the sum of 1.1377, for moneys paid on his behalf by the defendant, which sum ho was willing to set off' against the plaintiff’s third count; for a third pica, in respect to a further sum of L 1377, part of the claim, he repeated the allegations contained in the hist plea ; for a fourth plea, that in respect of the sum of 1.1819 Is 2d, the plaintiff was and is indebted to him in that sum for money lent, interest, goods sold, and commission ; and for a fifth plea, he repeated the allegations contained in the hist plea. The facts of the case, as stated, were as follows -In 18G5, the Provincial Government, with a vjew to improving to a certain extent the harbor of Oumaru, determined to construct a jetty from the promontory to the south of Oamavu, and it was also determined that a road should be made to the town of Gam am from the jetty. Tenders were advertised for the construction of the works. Mackenzie and Calder, being contractors, were brought into contact very frequently. On one occasion, shortly before tenders had to be sent in, Calder asked Mackenzie what he would charge to remove earthwork at per yard. Mackenzie replied it would depend upon distance and the locality it had to be remqved from. Calder then stated it would be simply cut out of the face and thrown over the cliff Mackenzie then said Is 3d would be a fair estimate for the excavation and removal of tho earth. Nothing further took place, but on a subsequent occasion, the parties meeting, Caldcr intimated to Mackenzie that he had tendered for tire works, and that in Ins tender he had charged Is dd per .yard for excavations. Nothing further was said on that occasion, but some time afterwards Caldcr told Mae-

kenzic ho was the successful tenderer, and asked him If he was prepared to do the excavation at 1 s 3d. He said further that the extra 2d might lead to difficulties in calculation, and it would perhaps be better that he should receive 10 per cent of the whole— i.e., Mackenzie was to receive the whole of the money paid by the Government for excavations, minus 10 per cent, which was to be paid to Calder. Mackenzie promised to think over the matter, and a few days afterwards the parties and a Mr M'lndoe met in Wain's Hotel, when Calder, referring to the contract, said —“ Well, what about the work at Oamaru ? Is it to be 10 per cent, or 2d ? There &ve 17,000 yards. What are you going to do it for ? ” Mackenzie replied it did not matter much—whichever Calder thought best he would agree to. Calder thereupon said it would be better to fix upon the percentage—for every LIOO worth of work done he would receive LlO, -which would make less difficulty. It was also agreed that this percentage should apply to any extras that Mackenzie might be required to do. Mackenzie wanted a written agreement, but Calder said that they had always worked together without dispute, and it was not pressed for. On the parties again meeting in Dunedin, Calder expressed some anxiety to have the road finished as quickly as possible, as if Hnished in tune to be available for that season’s shipment of wool, the landing company at Oamaru had promised him a bonus. In consequence Mackenzie took the necessary steps, engaged men, procured tools, and proceeded to Oamaru with them. Shortly after the work was commenced it was found that the gradient of the road as originally intended, 1 in 14, was rather steep, and the engineers and inspectors agreed to make it 1 in 1(3. This necessitated extra excavation, for which L 250 was allowed, and the work was done by Mackenzie. As the work proceeded it was found that the substance to be removed was rock, and not earth as was supposed, whereupon it was arranged that an extra 2s Gd per yard for excavating should be allowed —in all L 250. It also appeared that the embankment from which the earth was removed was comprised partly of sand, earth, and rock. On the earth being stripped, the sand was blown awa3 r , the const • quence being frequent land slips. Alterations in the excavations were ordered, ft r which L6BB 10s was allowed, and the work was done by Mackenzie. It was also thought advisable to turf the sand, and for this extra work L 151) was allowed. Some other extra work, amounting to about LGS, wrs also clone by Mackenzie. During tie progress of the works, Mackenzie received payments amounting to LI3GO, leaving Gaidar indebted to him in the sum of Xil’2Gl 9s 4d, which he now claimed. To this claim defendant pleaded substantially two pleas, the first averring that he had lent plaintiff LI 377. This amount, however, had been allowed and given credit for. The second averred that he had advanced moneys on which interest was charged, goods sold and a per centage was charged, amounting altogether to Llßl9 12s. Items of Ll7 and LlO were admitted by plaintiff, interest charged in two instances were disputed, it being contended that there having been no agreement on the subject it was not chargeable. An item of LI 12 10s 5d for blasting powder supplied was also disputed, plaintiff' oidy ad? mitting bis • indebtedness to the extent of LS4. [Mot concluded when our reporter left.]