IMPORTANT CASE TO CONTRACTORS.

Evening Star, Issue 3211, 5 June 1873, Page 1 (Supplement)

IMPORTANT CASE TO CONTRACTORS.

The following appeal case was heard before the Judges of this Colony in the Appeal Court, at Wellington, on Wednesday, May 21st. We quote from the Post :—

HOLMES AND ANOTHER V. ROLLESTON. The action was brought by Messrs Holmes and Co., against the Superintendent, for the time being, of the Province of Canterbury, to recover the sura of L 34,117 7s 8d (including about LI 1,000 interest) for certain alterations in the construction of the Lyttelton Tunnel. It appears that after the contract had been duly taken for tho construe'ion of the Lyttelton and Christchurch Railway, it was found necessary for the public safety to substitute a straight run out from the tunnel on the Lyttelton rise, for the curved one originally designed ; and the Superintendent for that time being, Mr Moorhouse, instructed and employed the plaintiffs (Messrs Holmes and Co., the contractors for the line) to make this alteration, and accordingly the viork was duly performed. There was no written contract, nor was there any appropriation by the Provincial Council to meet the additional cost; but for the purposes of the demurrer, about to be mentioned, the performances of the work and the charge for the same were not disputed. On payment being claimed from the present Superintendent, Mr Rolleston, and disputed by him, this action was brought on the Ist of December, 1871. The declaration set forth the facts above stated, to which the defendant pleaded (3rd April, 1872) that the work was done “without the authority, sanction, or permission of the Provincial Council, at any time obtained or expressed in any Act or Ordinance,” and that “no provision or appropriation had been made, nor any moneys voted to set apart ” for the purpose of the specific work. To this plea the plaintiffs replied, setting forth the various Ordinances of the Province, which they contended might be held constructively to give the necessary sanction to the work, but they were unable to show any specific vote of money for defraying the cost of it. The defendant (Nov. 12th, 1872) demurred to this replication on the ground inter alia (1) that it was not alleged, nor did it appear, that the works described were part of any contract mentioned in the various Ordinances pleaded in the replication, and (2) that it is not shown that any sura of money was appropriated by any of the Ordinances referred to. On this demurrer the case was argued. The point raised by the plaintiffs, that one Ordinance empowered the Superintendent to take all necessary steps for the construction of the railway, was disposed of on the ground that those “ necessary steps” included obtaining a specific appropriation from the Provincial Council. The case was taken solely on its legal merits, and on these the Court decided that the Superintendent had no power to enter into such a contract as that relied upon, without specific authority of the Provincial Council, and an appropriation of the money necessary for the purpose of the work; and that the Provincial Council having given no such authority, and having appropriated no specific sum of money for that specific purpose, the plaintiffs’ case failed. Judgment was therefore given for the defendant with costs. The contractors, thus lose the principal sum of about L 23,000 with Li 1,000 interest, and will have to pay about LI,OOO costs.