Page 4 Advertisements Column 4

Gisborne Times, Volume V, Issue 33, 8 February 1901, Page 4

Continued from inside page, and that had been paid. In a conversation in front of the Masonic Hotel he had suggested to Courtney that he should leave a few pounds in hand, and he would get Mr Lynch, an expert fencer who was at the foot of the hill, to complete it, as he could see tbatr Courtney knew nothing about fencing, and would never be able to complete it. Witness had gone all over the ground before the Council meeting. He had not ascertained if Captain Winter had been over the work, but he assumed that as he signed the certificate he must have been over the ground. Mr Lysnar: Ton did not concern yourself about the matter? Witness: I did not ask him, but I concerned myself very much about it. His Worship : I do not know if this is important, but I will let it go if there is anything coming out of it. Mr Lysnar: What you did was simply regardless of what Captain Winter had done or said ? Witness: I was instructed by the Council, and acted on their wishes. Mr Lysnar: Regardless of what Captain Winter had done? Witness: It was decided on what Captain Winter said, I suppose. Mr De Lautour: If there has been friction between the Council and its officers, it is better not entered into here. I have stated that if the engineer’s certificate had been accepted by plaintiff, we are bound by it. Mr Lysnar; Here we are in the extraordinary position of a contract being made with the engineer, and a Councillor getting into the box and disregarding the actions of the engineer, and going on his own. Mr DeLautour: We are not on a platform now.

Mr Lysnar : How can men expect to get paid under such conditions? His Worship: Go on with the case, Mr Lysnar. Mr Lysnar: I will not ask him any more questions. In re-examination by Mr DeLautour, witness said that the rail in the swamp would be about four times the length of the reporter’s table. A man could do the work in half a day; without it, the fence was not stock-proof. It was not authorised as an extra work. Plaintiff said he was very pleased his attention had been called to the matter, and would willingly do it. William J. Mossman, also a County Councillor, was questioned at great length, his evidence being mainly a corroboration of that of the previous witness as to the work not being done. No work, he said, had been authorised outside of the contract. He had told the contractor to place the posts Where they were wanted. The plaintiff had said that Captain Winter had told him not to put anything in the drain ; they told him to put a few sticks in to make it stock-proof—-that would only be a few minutes work. The plaintiff had been told to put posts in the dips and rises. His Worship: In addition to those at 18ft apart? Witness: There is mention of 18ft m the contract, but there is no hard and fast rulo in fenemg. Mr Lysnar: It is as plain in the contract as the English language can make it. Who did witness think was to decide where the posts were to go, the engineer, councillors, or contractor ? Witness: We were instructed by the Council to inspect the work; any common-sense man should be able to judge where the posts were to go. Mr Lysnar: I may be a little bit fogged over this matter- — Mr DeLautour: You have been all along. Mr Lysnar: Perhaps. Continuing questioning the witness, the latter complained that he was being asked the same thing over and over. Mr Lysnar: If you gave me a straight-out answer at the first there would be no fear of that. Witness, being closely questioned, would not admit that he had authorised anything outside of the contract. John Warren, County Clerk, deposed that the first payment to Mr Courtney had been passed on the 29th June, and the next on the 27th July, but he did not come in for the money until Ist of September. Witness did not know of any reason for Mr Courtney not coming for the money; in previous instances Mr Courtney had not come for the money until some time after his account was passed for payment. At one meeting a duty was delegated to Councillors Jex-Blake and Mossman.

By Mr Lysnar: An amount of £6 15s was hold over, subject to the work being inspected by Councillors Jex-Blake and,,- Mossman. Witness was instructed *9 hold the money until the work had been passed. On the 27th July Captain Winter had certified that the work had been completed, but the money was still held over subject to the Councillors named approving of the work done. By Mr DeLautour: Three pounds had been held over—that was for extra work claimed for, and has been paid into Court. Mr DeLautour stated that Captain Winter was present if Mr Lysnar desired to call him. Mr Lysnar at first said he would, but then said that it would not be necessary. In addressing the Court, Mr DeLautour said the facts were very simple, though they had been somewhat confused by the evidence. The Council had been dissatisfied, and the contractor could have suggested an arbitrator, but apparently Mr Courtney did not want to fall out with the Council, and went to Cr JexBlake. On going to the work he admitted that the contract was not done properly; he said that he had been deceived by his men, and profusely volunteered to put the fenoe right to the satisfaction of the two Councillors—even after Cr Jex-Blake had pointed out to him the quantity of work that required to be done. There was not a word said then about a further claim, and no further work was authorised. Courtney admitted that he had never demanded payment for the only item that was now before the Court. It would be an absurd thing in broken country to have posts at a mathetically exact distance apart. If no allowance were made for a dip they -would have the wires above a man’s head; not only a sheep, but a bullock could walk under it. Mr Lysnar contended that the case must abide by the documentary evidence. It was not hilly country, and the Engineer having gone over it fixed the distances between posts at IS feet. Even before a shovel was put in the ground, Councillors had gone and interfered, and insisted on work being done that was not in the contract. The Engineer said that nothing was to be put in the drain, as it would cause it to be choked up. The Engineer had approved of the fence as complete, and all along the plaintiff had claimed on the certificate —the fact that he had not taken the money showed that. By paying £4 into Court, the Council admitted they had author- 1 ised the work, though Councillors said that none had been authorised. The true position was for His Worship to decide that honest payment be made for the work that had been done. What contractor would be safe if extra things not provided for could be introduced into a contract ? In the interests of commercial morality it should be upheld that a contract could not be added to without oayment for extra work. His Worship : Their contention is that there was no extra work. Mr Lysnar: Very well, they cannot go behind the certificate of their Engineer, which both parties had acted on. Was it likely that the contractor would, after the work had been passed and certified to by the Engineer, send out men all that distance to do further work unless it was to be paid for ? The Council had themselves broken the contract by substituting someone else for their Engineer, and had given an absolutely consenting mind to what had been done. The Councillors asked to be allowed to pick and choose as to what was extra work, and took up the extraordinary attitude of disregarding both Engineer and contractor. Neither of the Councillors had been back to see the work since it had been done. In regard to the point as to whether there could be any variations from the distance of 18 feet between the posts, Mr Lysnar said that they had the matter before them very plainly, the parties themselves having specfically agreed and acted upon the distances set down. His Worship said that although the amount involved was not very large the principle involved was important, and he would take time to consider his decision.

Redstone’s Whatatutu Coach leaves Gisborne on Mondays, Wednesdays, and Fridays, at noon, returning from Whatatutu on Tuesdays, Thursdays, and Saturdays, at 8 a.m,—Advt.