SUPREME COURT.

Evening Star, Volume IX, Issue 2780, 15 January 1872, Page 2

SUPREME COURT.

CIVIL SITTINGS. Turn Day. (Before his Honor Mr Justice Chapman.) HUNTER V, WILL AND OTHERS. This was an action to recover the sum of L 265 3s, balance due on a contract, and for extras. The sum of L 67 was paid into Court. Mr Macassey (with whom was Mr Howorth) appeared for the plaintiff, Mr David Hunter, contractor ; Mr Barton (with him Mr Haggitt) for the defendants, the Rev. W. Will, Mr J. Gow, and Mr Andrew Todd, Committee of the East Taien Presbyterian Church. The declaration stated that on October 19, 1869, Messrs Hunter and Goodfellow entered into a contract to erect a Presbyterian church at East Taieri, in accordance with the plans of Mr R. A. Lawson, the committee’s architect. By the agreement the work was to he executed to the satisfaction of the architect, extra work not to be paid for unless the same was done in accordance with his written instructions ; the contractors to complete the building by March 31, 1870. failing which they subjected themselves to a penalty of LI a day by way of liquidated damages. It was alleged that tbe terms of the agreement had been faithfully performed, and that in respect of it a sum of LIOO remained due ; and a claim was put in for extras to the amount of L 165 3s —making a total claim of L 265 3s, with interest at the rate of 10 per cent. The defendants pleaded—first, a general denial of all the material allegations contained in the declaration; as to the fourth count, rebating to extras, that they were only indebted in the sum of L 67 13s, which was paid into Court; for a further plea, that the plaintiff had failed to complete the work withiu the contract time, whereby the defendants were enabled to deduct, and had deducted LS6 as damages ; and that the plaintiff had not obtained tbe architect’s written order for the extras claimed. The plaintiff by his replication averred that the delay in completing the work arose from no fault of his, but was caused by the action of the defendants. The terras of tbe agreement for the erection of the ehureb are the grounds of this action, and the chief points referred to in the course of the trial are these :—That the building was to be finished by March 31st, 1870 ; that for any default the Church Committee were entitled to deduct LI for every day the contract time was exceeded ; and that no claim for extras was to he recognised unless the extras were executed upon the architect’s written order. The contract price was L 1750 ; of which L 1650 had been paid, leaving the balance claimed by tbe first count of the declaration. The total claim for extras was L 165 3s ; and of that amount the architect certified to L 73 16s. In opening the plaintiff’s case, Mr Macassey said the defence would doubtless be that inasmuch as the contract provided that all extras were to be executed soley on the written authority of the architect, the absence of such authority v as fatal to tbe plaintiff’s claim. He, however, submitted that upon tbe terms of the contract no such written order was necessary ; and farther, if that question had been raised on the pleadings, which it had not, that the absence of a final certificate made no difference. In proof of this contention he cited the case of Barker v. the Mayor of Melbourne, reported in the Australian Jurist— the circumstance of the case being identical to those in this one. In that case the action involved a balance due on a contract for a lump sum of money, as in the present case; and that circumstance was strongly relied on by the Supreme Court of Victoria in ruling that a written order was not necessary to entitle the plaintiff to claim for extra work supplied by him. Apart from that argument, a further answer, and one equally conclusive, could be set up to the defence that the architect’s written authority for extras was wanting. The first disputed item had reference to tongued instead of red pine lining for the goof. 'ihc specifications, as originally drawn up and signed by the parties, provided for red pine ; and after the timber had been brought on the ground, it was determined to substitute flooring. The plaintiff asked the architect for a written order authorising the extra work, and Mr Lawson replied that it was unnecessary, and taking a pencil he scored out the original specification, and substituted the alterations decided on. In the same manner, when the other alterations charged for were made, a written order was applied for ; and instead of granting it, the architect supplied supplementary plans signed by himself. As to the delay iu executing the contract, it was alleged on the part of the plaintiff that it was solely owing to disputes with the defendants arising out of alterations of the original plans ; and in support of this allegation, the plaintiff and several of his witnesses gave evidence. On the same side Messrs Mason and Sanders, architects, and a number of contractors, would give evidence that plans signed by the architect, or specifications altered by him, were considered to be a sufficient order for extra work requiring to be done. The pla’utiff’s cross-examination had not concluded at 4 ©’clock.