An Important Case.

Gisborne Times, Volume V, Issue 33, 8 February 1901, Page 3

An Important Case.

CONTRACTOR, ENGINEER, AND

COUNCILLORS.

At the Magistrate’s Court yesterday, before Mr W. A. Barton, S.M., Daniel Courtney, of Parihiinanihi, sought to recover from the Chairman and Councillors of the County of Cook the sum of JES, for work and labor done. The sum of .£'-1 was paid into Court. Mr W. Douglas Lysnar appeared for the plaintiff, and Mr DcLautour for the defendant. At the request of Mr Lysnar all witnesses were ordered out of Court. Mr Lysnar stated that the claim was for work and labor done, arising out of a contract to do a specific piece of fencing. The circumstances wore peculiar, and the ease had really arisen in consequence of some of the Councillors usurping the power and authority of the Engineer of the Council. The plaintiff had entered into a contract to do some CO chain of fencing to the satisfaction of the Engineer. Right from the start, in fact before they had actually got working, the contractor was interfered with by the Councillors. They directed him to start in wrong places in the first instance, and this necessitated an extra ten chains of fencing, and other work. He would show that the Engineer had gone on to the ground and pointed out several things that he required to be done before passing the work, but after that two Councillors came and directed him to do other work, particular work which the Engineer did not authorise to fie done. The original contract was ,£lB, which had been paid, but it would be necessary to put it in in order to have their claim. The extras had been done on the authority of Crs .Tcx-Blake and Mossman. Daniel Courtney, the plaintiff, deposed to undertaking a fencing contract at Gentle Annie for the Council. After signing the contract he sent men out to erect the fence. He told them where to start from, and stated that he would be out next day. When ho arrived lie found that they were starting ten chains away from wliere they should have. The men told him that Mr Jex-Blake was passing by and had told them to start where they had done. Witness then commenced the new line of fence, and had to get additional material on account of the interference of Mr .fex-i(lake. He completed the extra work to the contract, and then sent for Capt. Winter. Cupt. Winter came out, and witness was on the ground at the time. Capt. Winter was the Engineer referred to in the contract, to whoso satisfaction the work had to he done. The Engineer pointed out several alterations that were required, and pointing to one spot said, “ do not do anything there until the water is stopped. He was told not to put anything under the bottom wire so as to stop the flood and driftwood. Witness did everything that Capt. Winter asked and pointed out. Witness put the posts in, in accordance with the specifications, and at the same time obtained Capt. Winter’s permission to place the old posts in, as they would straighten the fence and act as battens. Witness came into town for payment, and was told by Capt. Winter that Mr Jo.x-Blako found fault with the fence. Witness went to the latter’s house, and asked about the fence and made an appointment to meet him on the ground, but Mr Jex-Blake did not turn up. Cr Mossman arrived on the scene, and went with witness over the work. Or Mossman found fault with that portion of the fence that Capt. Winter had passed and told him fo take up a number of tho posts. He had to move the posts to the place pointed out by Gr Mossman, and also to take away the grass which was touching the wires. When they came to the place which Capt. Winter had told him not to touch, Cr Mossman requested him to till up under the wires. Witness pointed out that Capt. Winter had ordered another course to be adopted, and Cr Mossman remarked, “ What does Captain Winter know about it •* .He has not had the experience that I June had with regard to fencing.” Cr .Tex-Blake came up at this time, and Cr Mossman remarked to him, “ What do you think of Captain Winter telling Courtney not to (ill up under the fence ? ” The Councillors ordered him to put in a flood gate at a cost of £l. Witness came to Gisborne about the money, and saw Crs Mossman and Jex-Blake at the Masonic Ilotel corner. Cr Mossman told him, in the hearing of Cr Jex-Blake, that if he would forgive the At for ,a Hood gate he would have no trouble in getting the money for the rest of the. claim. He afterwards saw Captain Winter, who refused to go out to see the work, as tiro matter had been taken out of ids hands by Cr JcxBlakc. Witness had received payment for the amount of the original contract. Witness sent the following letter to the Council:—

“Take notice: If I cannot get my money for the fence that I have done at Gentle Annie, I will take steps to recover the same. One of your members wants me to give £l, and he says I can have my money; but I want the lot or none. I want to know before taking steps in the matter.” To this letter, ho received the following reply, dated Gisborno, Sept. 3:— >• Sir, —I have the honor to acknowledge the receipt of your letter of the 31st August, 1000, giving notice of your intention to take steps to recover the price of the fence you erected on section 133, Tatutahi, for the Council. lam directed to state that the Council will pay you £IS 15s on account of tho work to-day, but before a final payment is made you must finish tho fence to the satisfaction of Crs Jex-Blake and Mossman, and if you do not finish it by the 10th September, the Council will employ a man to finish the fence, and will charge the cost of liis labour against the balance of money now in the Council’s hands, which would be otherwise due to yon.”

rrior to receiving the letter from the Council he received the final payment for the fence. Ho could not get payment for tho extras, so he went to Mr Lysnar. It was hard to satisfy Crs Jex-Blako and Mossman. If he had varnished the posts he would not have pleased them. (Laughter.) Mr DeLautour: When did yon demand this sum of £4 for tho extras? Witness: I gave it to Mr Lysnar. Counsel : But when did you demand it ? Witness: I went to Mr Lysnar when I could not get the money. Counsel: Did you ever make a personal demand for the money to the Council ? Witness: No, I did not. It was no uso making a demand. Counsel : Did you not receive the final payment after the receipt of the Council's letter ? , T . Witness : I cannot swear when I got the money as I lost my pocket book at Tatapouri. Counsel: When you met Cr Jex-Blake did the latter not say “Now, Courtney, I do not want to have you, there are no two men in ihe bay who can complete that fence in a fortnight.” Witness: Yes he said that it would take me a fortnight to do it. Counsel: Did you not then say “ I will make a good job of that fence no matter how long it takes me.” Witness: No, I did not. In answer to further questions witness said that he told one of the Councillors that lie (witness) was not an expert fencer. He did not tell them that they would have to pay for extras, but he did not see that he should be expected to work for the Council for nothing. John Edward Parsons, who said that he had had two years’ experience as a fencer, gave evidence that he and a fencer of 20 years’ experience (John Collins) had done the fencing, which had been done according to order." The country, he said, was not very rough. The work had been done to the satisfaction of Captain V inter, and later on witness had gone back and put in three days’ extra work, at 7s per day and food. In opening the case for the defence Mr DeLautour said the point was whether Crs Jex-Blake and Mossman had authorised the work claimed for to be done as extra work, yba glftmtiS &ad a tight to stand by the

Engineer’s certificate, but the Councillors being dissatisfied he had voluntarily gone to make the work good, no extras being authorised.

Thomas Jex-Blake, a County Councillor, deposed: He remembered a meeting of the Council at which this matter cropped up, and about next day Mr Courtney called on him at his town residence; this was about the end of July. He said that the Council refused to pay for the work until witness was satisfied ; witness said he was; sorry that he had to take the stand he did, but he was acting in his capacity as a public man and must do his duty conscientiously. Mr Courtney said that he regretted he had ever touched the fencing, that not being experienced himself he had depended on a man who was said to have been a first-class fencer. He said he would be glad for witness to come on the ground, and he would do all that was necessary to make a good job of the contiact. He went out on a Monday, Mr Mossman being there in advance of him. Mr Courtney expressed himself a 3 disgusted with the job, said he had been “taken in ” by the man he had relied on, and would go into town and get a good man and make a good job of the woik even if it took a week. Witness told him that he did not want him to be under a misapprehension—that if he had two of the best men in the district it would take a fortnight to complete the work. “He looked me straight in the face,” said the witness, “ and said, ‘ If it takes me twelve months I will make a really good job of it.’ ” Witness pointed out the defects, the new posts having been put alongside the old ones to save trouble. He told plaintiff that he was very sorry they had to push him in the matter, but it was necessary. By Mr Lysnar: It was an unwritten law that the Council could over-ride the Engineer's opinion if they were not satisfied. Mr Lysnar: Was not the Engineer the proper person to test it? Mr DeLautour : I stated that plaintiff had a right to stand by the Engineer’s certificate, but did not do so. Mr Lysnar : Perhaps the Council has many other unwritten laws! His Worship: I think we had better confine ourselves to the written laws. Mr Lysnar: I think so too. Continuing, witness said that plaintiff did not tel! them that he had completed the contract according to the Engineer. Until the last few days he had never heard a word about Mr Courtney complaining that witness and Cr Mossman were usurping the functions of the Engineer. In the contract about GO chains of fencing had to be attended to, about half had to be new. Mr Lysnar: When you and Cr Mossman wore on the ground how much of tho fencing required attention? Witness: The whole lot of it—in fact the fence was worse than if it had never been touched. Continuing, witness said tho contract provided for battens, which were put in position more or less. Undoubtedly no old posts should have been left—they were unsightly. Mr Lysnar: I should be very glad if posts were left in place of battens in my fencing. Witness: Instead of allowing for dips and rises ? Mr Lysnar: Tho posts would be all the better for the fencing. Witness: I will not insult your knowledge. WTtness, continuing, said he told Courtney to take out all the rotten titoki posts. Mr Lysnar: You disregarded the 18ft regulation ? Witness: Anyone in their sane senses would. He told plaintiff to put the new posts where in witness’s own discretion they were required. Courtney said Captain Winter had told him to put nothing in the swamp, and they authorised him to put a few manuka rails there to keep the stock from getting in. So far as he knew that was not in the contract, but Courtney said that he was willing to do anything to make the work good. That was implied in the contract. They had told him they would give extra for the floodgate, Continued on fourth page.