NEW WAERENGA-O-KURI HOTEL.

Gisborne Times, Volume XLV, Issue 3992, 27 July 1915, Page 3

NEW WAERENGA-O-KURI HOTEL.

DISPUTE CONCERNING THE CARTAGE OF BUILDING materials. A LENGTHY. HEARING. JUDGMENT RESERVED. Tlio case of John Sheridan, merchant (Mr Nolan) v. William John Mossman, slie.epfarmor (Mr T. Alston Coleman), occupied the attention ol Mr W. A. Barton, S.M., at the Magistrate’s Court throughout the whole of yesterday, the hearing lasting until 5-55 p.m. The claim was for £IG4 15s Gd for cartage of building material for the new Waorongo-o-kuri Hotel, and the Jiearing had been adjourned for the purpose of obtaining the evidence of x 1 1 0 man who was driving plaintiff’s lorry at the time in question. Mr Nolan said plaintiff had had no complaints about the conduct of the work, and was unaware as to what defendant's allegations wore. In reply to his Worship, Mr Coleman said the dispute was in regard to quantities carried and prices charged. George Neville Newman, motor driver, said prior to March last, and until a few weeks ago, he was employed by plaintiff as driver of a lorry on day wages. in consequence of a conversation with plaintiff, witness applied to Mr Spiers in regard to carrying of goods to Wacrenga-o-kipd. Counsel was proceeding to ask about the price of the carriage ol goods, when Mr Coleman objected to any preliminary ‘ verbal arrangement, as there was a written contract. Mr Nolan said they would show that the contract was superseded. He asked the witness if, before signing the contract, he had a conversation with Mr Spiers. Mr Coleman objected, and his Worship said he would uphold the objection until it was shown that the contract.. luid been departed from. Mr Nolan said he wanted to show what led up to the contract. Mr Coleman : That is what I object to. Continuing, witness said he signed the contract, which was Written out by Mr Spiers. Mr Sheridan was not in Gisborne at the time. Witness was not authorised to make a contract for the prices stated. I lls Worship: Then why did you sign it ? Mr. Nolan: That is what I could have explained had my friend not shut out the evidence.

Mr Coleman said he also objected to any evidence relating to agency. Continuing, witness said ten days after he signed the contract Mr Sheridan returned, and ho reported what lie had done. Plaintiff' objected, and witness saw Mr Spiers again and told him he was working on wages and had no authority to enter into the contract-, and that plaintiff' had told him he could not go on with the carting at that price. Mr Spiers said he would put it hack to the original tender of 27s Gd per IOOOit ami 20s per ton. Itis Worship: Anybody else present ? —No.

Witness' said Mr Spiers agreed to pay those prices from the start. He and Mr Spiers went to plaintiff’s office hut he did not hear the conversation between Mr -Spiers and plaintiff. About a mouth later witness asked Mr Spiers for a certificate to draw some money for Mr Sheridan. Mr Spiers said he would give one. Witness called several times, hut Mr Spiers was always out. When the weather broke witness told Mr Spiers he could not get over the hill. .Mr Spiers said lie would get Baty’s waggoiv to take the material, from the foot of the hillWitness was to get over file hill when the weather was favorable.

Continuing, witness said he told ; Nlr Spiers that he would go over the j hill whenever the weather permitted, j and no difference was to be made in j price to the bottom of the hill than it ! taken over the hill. The Magistrate : That seems an ex- j truordinary arrangement. Do vmi 1 mean to say that no difference was j made in the price for the shorter ; journeyf Continuing, witness said he left two i loads of bricks at Baty’s. Mr Spiers j came to witness, and said Baty was i complaining about the bricks being : left at his "place, and told witness to j cart, the bricks to the bottom on the j bill. About half the materials were j carted over the- hill. iSpiers made no ; other complaint to witness, and did j not make any complaint- until the j other carters were ready to go on with | the carting, . j By Mr Coleman: 'Witness kept a j tallv of tin- loads of material carted, j That tally showed where the different j loads were deposited. The docket ; showed approximately the weight of j load carried each trip, and lie gauged j the weight by the depth of the ; springs. IV it ness did not measure the j timber to see how much he was <art--jug. The timber was put pn lots. . rue contract was made on February ,- 18, and witness started to cart about , three days later, and carted continuously thereafter every day, except wncii waiting for materials. "Witness stopped carting on April 21. Mr Coleman said that the hooks only showed, six entries for the whole of the work Newman had done. Witness said a certain amount ol carting did not appear in 'the docket hooks. Witness made the entries in ; a note book, which was now among j his belongings at Matawai. He handed in the note book to Mr Borham, Mr Sheridan’s clerk. Witness told Mi- Borham what stuff he left at the foot of the hill and what loads lie took over the hill. It was during the time witness made the entries in the docket book that the worst weather was experienced, and the greater part, of the stuff was left at the foot of the hub M r Coleman put in the docket book. Continuing under cross-examination witness did not remember telling Mr j Spiers that it suited him best- to put j the stuff down at the bottom of the lull, and then make continuous journeys from the foot of the bill and back again when the- road was drier. "Witness said he did not take the material over tiro hill because the road whs* £ro«isv ini<l. his trolly whs sic ickl 11114 on me greasy road. There was no difference between the charges from carting to the bottom of the hill and to tin* site. His Worship: a that agreement was come to, it certainly was a most extraordinary one. Witness, continuing, said that carting from the bottom of the hill to the site was worth more tnan £J a ton. . His Worship: And yet you say .you were to get the same price for carting to tlx> bottom of the hill as to the Witness denied lie was put off by Mr .Spiers because he was dilatory currying out the contract. Mr Coleman : Do your dockets show what vou carted to the site? ’Witness: It ought to he there. Between- March 4 and April 4. witness cr a vc Mr Borham the entries to do not down in the doc-Kot hook. There was no docket -book supplied until six weeks after the contract started. Witness did. very little other work besides t-iic carting for Mossman. Any job witness did he entered m jus note book. The reason the entries were lumped was because witness nad pk ntv of work to go on with, and did not (Oino in to the office. tut office did' not know whether witness was at Wacrenga-o-Kuri or n aimata, Imt they had an idea what he was dojn ,r. Witness had to show what lit was doing on different dates, and so marked tiro different jobs on the dockets. He started working wages for Mr Sheridan about I'ebiuiU.y in. Mr Sheridan, was paying for the benzine. ' Mr Coleman questioned witness about an entry of £1 per ton from the bottom of the hill to the site cm page 15, and asked him how he justifivd this when he made out that the price for carting to the bottom of the hill and to the sitß was the same. Witness replied that the road was

bad, ancl the cost of carting over the hill was worth tlio extra £1 a ton. Other carters were getting it. Proceeding, witness said lie had received a letter about piping from Mr Spiers. Ho took this piping to the bottom of the hill. iur -Coleman said they could trace the piping as having left the racecourse with witness, but had no trace of it further. Mr .Nolan said that this entry appeared in the diary. Witness said he had a conversation with Spiers in which the latter agreed to raise the price from 27s Gd foi timber and 20s for goods. No one was present when the conversation thok place, and witness did not suggest that such. an important alteration should be recorded in writing. The conversation took place on the racecourse at 10.30 a.in. Witness was carting in the country during the day, and did not return to town until night. Mr Coleman: If what you are t lling me is true, why did you tell Mr Noian that you went to Mr Sheridan’s office the same day, and saw Mr Sheridan and Mr Spiers in conversation.

The Magistrate: ‘Which is correct? What you arc. saying now is entirely different. Mr Coleman asiced the witness 11 two amounts entered on different dates had not been charged for carting the same material. Witness: No. they are not the same. Witness said be 'did not know why they were any blocks missing.- The only material lie was notified as missing was the -piping. Witness was not told to bring any material into Town from the racecourse. Witness was working for the Express Company in Christchurch at one time, and there was trouble there. tie-examined bv Mr Nolan, witness said that each of the dockets showed where the goods had been carted. Any motor' driver could judge by the pressure on the springs what weight ol load he carried. The timber he- carted was checked by the carpenters who were pulling tlio building down. The work of carting was more costly in wet weather, hut the consumption of petrol was much greater in wet- weather than in dry weather. '1 here was also more wear and tear on the tyres. It would be impossible for a motor lorry to get up the Gentle Annie hill in wet weather. Spiers did not say anything about putting other carters on -to cart the timber from the racecourse. ‘Witness was not asked to take any core loads out after April 21. Spiers usually told witness when material was ready to be carted, hut lie got no message alter April 21. Prior to that date Bro klcbank’s lorry was engaged on another contract. The notice regarding the missing piping was sent witness aft-.r the commencement of these proceedings. James Mclntyre Borham, accountant and general manager for plaintiff', said Newman told him that he had tendered 27s Gd and 20; for carting for Mr Mossman, and later said he had reduced them to 22s Gd and 15s. Witness told Newman that those prices would not pay, and toll him to wait until Mr Sheridan’s return before doing anything in the matter. Later Newman told witness that the prices had been arranged as originally tendered. This would he at the beginning of March. On March 6, witness sent out the iirst invoice for carting to defendant. All the invoices sent out subsequently showed the pries as 27s Gd and 20s. Witness sent tlie invoices out weekly for the first two weeks, and thereafter sent out daily invoices. At the end of the month, witness rendered the usual monthly statement. No question was raised at any time as to these uc counts. On or about .March 0, witness had a conversation ov. r the telephone with iSpiers' and told the latter that Newman was carting for plaintiff, ami mat the accounts would be payable to Sheridan. Spiers signified his assent. Witness asked Spiers shortly after rendering the first invoice what about a payment on account, and Spiers said lie had received tne accounts from Mossman and was going through them. He did not make any objection at that time as to prices. In April witness again asked for a payment on account, and: Spiers said that the material carted had boon left on this side of the hill. Witness told him that he understood that the material was to be carted to the foot oi Gentle Annie in bad weather. Witness asked Spiers to leave the discussion over until plaintiff’s return. When Mr Sheridan returned ’ln- took the matter in hand.

John Sheridan, the plaintiff, said that Newman was in his employ as a casual hand at 11 s per. day. On witness’ return from a visit to Wellington, he heard that Newman had put in a tender, which was not accepted, hut that Newman had been engaged by Mr Spiers to do the carting at so much per load. Witness heard of no written contract. Witness intimated that he had no objection to Newman doing the carting at 2 ( s Gd and 20s, and communicated with S’piers to that effect. Spiers gave witness to understand that lie accepted these prices. W itue.ss saw that accounts wore sent regularly to .Mossman after March G. When, witness heard some talk of a written contract, and asked 51 r Borham if the accounts had been regularly posted and if there had been any objection to them, and Borham replied that the accounts had been posted and there hud 'been no objection to them. About the end of April, witness saw Spiers and asked him what about the nfcounts, and Spiers replied that ho did not recognise witness in any way. Witness then placed the matter in the hands of his solicitor. Never before or after the issue of the summons did witness understand that there was any claim outside what he was claiming for. By Mr Coleman: Witness was quite prepared to show that he had sustained a loss even at the prices charged. Had witness been unable to carry out the contract, lie would not expect to hear the loss, as he had not entered into any contract Ho was siniplv paid for what he took out. He simply worked as a casual carter Witness took up the- position that fresh arrangements were made after March G, changing the prices to 2, s Gd and 20s. Ho expected the defendant to pay for the extra cartels put on. This concluded the case for the plaintiff. Mr Coleman, for the defence, sum "xinry intended to show FJis Worship that tlio loads, measurements, and weights charged for were at variance with what was actually taken. He put in a statenant of the actual measurements and weights taken. Alexander Douglas Spiers, architect, said lie acted for defendant in connection with, the Waerenga-o-kun Hotel. Witness drew up the contract entered into between defendant no cl Newman for carting. The latter started work on February 22, and carted until the end of that month, i -by which time ho had carted out seven or eight, tons on to the site at W aej renga-o-kuri. From March 7 to H Newman failed to do any outing. Witness interviewed him several times, ‘and he stated, that he vns I going on with the carting, hut* lie a! | ways tailed to do so. On Mat<h ff i witness stated to Newman that as lie I had failed to carry forward material j to t-he site if lie did not carry on the j-.work expeditiously, os they wore | bound to time and the carpenters I were, waiting on the material, they ! would be compelled to put on other j carriers. On M.ivrch 1.3, witness tele—j phoned to Mr Baty, carrier, and asked ; him if lie would bo prepared to imdertake work for them. Eventually i Baty agreed to do the work. On j March 9 Newman said ho had made I arangements with Fitzpatrick*to.carry : material with him over the hill, vvit- | n oss said that arrangement would ho I satisfactory. Witness then rang up i Fitzpatrick to see if such an nrrange- { meat had been made, aiul lie said that 1 no arrangement had boon made, ultra ess then approached Baty, who

agreed to undertake tiie work at I'd 10s a. day for thro.* days. Witness had later to put other carriers on. Xeninan was from time to time caking a load, hut the material was not being removed quickly enough from Lhe racecourse. Witness put- dieGrannacluin on to curt bricks tlnoiiic** •at tue end of Marcu. Biockiebank was also put on, also Mc.r.son, hcragg. and Clare and Clare. Proceeding, witness said it Jiacl cost defendant £270 to get the extra earning put on done. On March 24, witness met plaintiff in front of his office. Sheridan told witness tlnuthey had taken the contract, too cheap and that they were losing money over it. That was the first- indication which witness had had tnat the lonw belonged to Sheridan. Witness first saw an account from Sheridan m April. The acounts were sent to defendant, and were handed to witness at Wacrenga-o-kuri by defendant. On June 3 Sheridan and Newman came down to witness’s office, and Sheridan said lie would like a settlement of tue accounts. Witness told luni that he could not have it, as everything was wrong according to the agreement, and the invoices which had been sent were also wrong. Witness showed plaintiff where the invoices were wrong, and Sheridan said that as a mere detail, and that- he would issue a summons that altornoon. Witness said that was the last thing plaintiff eouid do. Witness had gone carefully through the invoices and tiiey showed the actual weights and measures to lie carried to Wacrenga-o-kuri under the contract' was 3D tons swt 3qrs 91bs. He produced and read a typed copy of his computations. Had Newman taken all the timber from the Makaraka racecourse. Up would have carried 30,290 feet, and lie delivered only 5000 feet. Newman threw on the roadside at the front of the hill 24,000 feet of timber. With regard to the timber at the Makaraka railway station, witness put in a slip showing that Newman carted 4832 feet, and lie had charged for 18,000 feet in his invoices. Newman also took delivery of timber from Aieken and Sons’ mill (1890 feet) and from Skeot and Co.’s mill (ISSO feet). Me took the latter right, to the building site, and that from Aiekon Ji.ndl Sons’, mill he threw on the roadside at the foot of the hill. In addition Newman, had enirxd a total of 4 tons 9cwt 2qrs 26ibs to Hu* si.e. Ho only carried to the building site 0850 foot. The weight of the timber Newman had removed from the racecourse was 33 tons, this was allowing 700 feet of dry nor ton. The timber carried from the Makaraka railway station was 4382 fret. In all, Newman had carried 45 tons 13ewt which had to be moved by other carters from spots along the road. The arrangement regarding the bricks was that Newman had to carry the bricks from Gisborne to the site. He carried. these along and deposited them along the road at places about 5 miles from the site, breaking about 2000 of them, which had to be replaced. i tie total weight of toe iron to be carried from the racecourse was 1 ton 4ewt. Of this Clare and Clare carried scwt 211bs. Newman did not deliver invoices 740 or 743. The goods mentioned .in tne former were carried by Brocklebank, and the timber set out in tlio latter did not exist and was never carted at all. By Mr Nolan: Ho told Newman that he had been compelled to engage other carters at his expense. Witness was quite certain that he told Newman that ho was putting the extra carters on at his (Newman’s) expense. Ho also informed him to the same effect when ho put Mr Grannaehan, ■Man’son and Scrag" on.' Newman made no comment, ami never mentioned Mr Sheridan’s name. Newman told witness when signing -tho contract that the lorry .was ,bis own.

Borharn did not ring witness up on .March 9 and tell him that the lorry belonged to Mr Sheridan. Bor ham had conversation witli witness by telephone on May 23. This was the first time witness had ever spoken to Borham. The latter rang up again on June 3, and Air Sheridan came down to see him on that date. Air Nolan : AVould it surprise you to learn that Air Sheridan was in Wellington on June 3. Witness : It would considerably astound me. Mr Nolan : Well. I give you that- information now. Witness said ho was quite certain that Sheridan visited him on June 3. He made an entry of the fact in his notebook at the time. Air Nolan said he would produce two witnesses to prove that Mr Sheridan was in Wellington on June 3. Continuing under cross-examination witness said lie got the first- lot of accounts about the end of April. Borham was making a mistake when he said that lie told him that- he was going through the accounts. Newman was also making a mistake when he said that witness had promised to give him a cheque on account. His Worship: Someone is making a mistake that is clear. Mr Nolan : Yes : A?r Spiers’ notebook does not appear to be too reliable. Air Coleman: It is more reliable than the dockets, though. ’Proceeding, witness said, that the bricks which had been broken were thrown out. This was not- the usual method of unloading bricks. Mr Nolon : I must be a lucky individual then. I have them thrown out myself. His Worship said he had seen bricks both thrown out and tipped out. He always tnouglit it was rough on the bricks when he saw them thrown out.

Mr Nolan : Does it not seem strange that you allotted Air Sheridan to believe that the accounts would be paid and then turn round and dispute the prices. Witness said he did not- recognise Mr Sheridan in the matter. George Brocklebank. carrier, said he carted a quantity of the matenal to the now hotel site at Waerenga-o-luiri. Providing the work had been done before the wet weather came on lie considered 25s a. ton would have been a fair price. A ou could not getup in bad weather, as the road was not metalled all the way. Witness took some timber up to the site from Aickin and Sous’ mill. . . By Mr Nolan : Any one signing a contract binding himself to time in carting on such a road would be foolisii. "You could estimate the weignt of a load on a motor lorry by the pressure on the springs. Michael Claude Walker, manager for Aickin and Son, timber merchants, produced invoices snowing the materials landed at Makaraka railway station direct from the company’s mills at Matawai. With green timber UO feet would weigh from 2 to 24 tons. William John Alossman, defendant, saict he was present when Newman made the written contract to do carting for witness. Newman said tho lorry as his. Witness .said he count not remember when lie first got vne accounts. Witness did not care who the plaintiffs was in this action, so long as he stood in Newman’s shoes. By Air Nolan : When he handed the accounts to Mr Spiers he did not go over the accounts. He simply handed them over, as Mr Spiers was the architect. Mr Spiers made some remark about not knowing Mr Sheridan in the matter. iur Coleman pointed put that the account forms were headed Sheridan and Adair. John Sheridan. _ re-called, said tnat on May 30 he went on by the s.s. Pa-

looua to Napier, and then proceeded to Wellington. He returned to Gisborne ou June 9. His Worship said that apparently Air Spiers was mistaken as to the date. Air Nolan: Air Spiers produces his notebook to refresh his memory. It shows now reliable t-a? notebook is. Mr Coleman claimed that defendant was entitled to a nonsuit, on tue ground that plaintiff had not carried out tho terms of the agreement or done the work to the satisfaction of the architect. Whether it was Newman or Sheridan the main purport- of their effort was to deliver the goods at Waerenga-o-kun. Newman in the first niece was the contractor, but now Air Sheridan wished to place himself in the positon of payee under the contract. Tiiey had no objection to this provided Air Sheridan was to assume the responsibility of Newman’s signature under the contract. It could not be a qualified acceptance. The plaintiff claimed that the agreement was done away and a new agreement formed. Ho claimed that the evidence showed that no such agreement as 27s del for timber and 20s for other goods had ever been entered into. Had Sheridan refused to allow Newman to carry out the contract they weii’d only have been able to proceed against Newman, and not Sheridan, for a breach. I: could not he expected that- tlie defendant could be expected to wait month after month. A specific, date was fixed for completion of the contract, and every consideration had been given to Newman. Air Nolan said his friend’s nonsuit point, and ids whole address rested on the assumption that the contract signed by Newman was binding on Air Sheridan. It was not likely ~uit plaintiff would give a casual laborer power to enter into a contract involving well ever £IOO. If there ever had been a contract that was abrogated whoa Air Sheridan saw Air Spiers and entered into a fresh agreement. They agreed that they would do casual carting for defendant, hut did not agree to cart the whole of the material. His ATorshin: That means that you could knock off when you liked. That wc-ukl iso si very foolish arrangement to have enre-cd into. They claimed that from March 9 the prTes won' definitely fixed at 27s lid and 20s. and no objection was ever made to these figures.- He submitted that, the whole of the evidence given by Air Soierscould nor. be* taken as correct. Mr Spiers laid relied on liis notebook, burthis l:a<l been proved to be wrong in one particular. He claimed that evidence would satisfy' the Court as to the bona ikies of the .claim. His Worship said there were a good many papers to look over and he* would, therefore, reserve judgment. The Court rose at 5.55-p.m.