SUPREME COURT.

Globe, Volume XXIV, Issue 2612, 21 August 1882, Page 3

SUPREME COURT.

Monday, August 21. BITTINGB IN BANCO. (Before His Honor Mr Justice Richmond.) His Honor held a sitting in banco at 10.30 a.m. WARE A» JONBB T IXXXELTON HABBOTJB BOABD. In this oase Messrs Ware and Jones, con-

tractors for the construction of the Lyttelton graring dock, were plaintiffs, and tho Lyttelton Harbor Board defendants. The plaintiffs contracted with the defendants, under deed dated 11th August, 1880, to carry out the work of constructing the graving dock at Lyttelton, and there was alto special clauses therein as to extensions of or additions to the work as stated in the deed. These additions were to be valued by the engineer aooording to prioe stated in the schedule of tho original works, or if the work was such as not to come withiu the sohedule, the engineer was to value it. No payment for extra

works was to be made except on written order of the engineer and the date of the completion of the oontraot was fixed for 7th April, 1882. The defendants bound themselves to pay a bonus of £IOO per woek for completion of oontraot prior to date, and a penalty of £IOO per week for delay over tho 7th A; s lwas provided for. The declaration of plaintiffs set out that the work was completed duly, and that during the progress of the work oertain deviations, alterations, and additions were made at the requost and by order in writing of the engineer. These works it was alleged were so incorporated with the original contract as to be impossible for the plaintiffs to oomplete the latter until these were carried out. The additions as ordered ocsupied the workmen of the plaintiffs seventeen weeks. It was alleged that the plaintiffs could, had it not been for this delay caused by tho execution of the deviations, alterations, &s., as ordered by the engineer, have completed the original works seventeen weeks earlier than the date at which it was. This would be twentythree weeks prior to the 7ch Apiil, 1882, the whole work, including the deviations, &c, having been oompleted by the 23rd February, 1832. The plaintiffs therefore became, as theyialleged, entitled to receive from the defendants the sum of £2300, on account of mm of £IOO per week, as provided in the conditions of the oontraot, they having completed the works six weeks prior to the time fixed in the contract, and also that they were entitled to olaim for the seventeen weeks whioh the alterations, deviations, k\, had taken up, as had it not baou for these alterations, &o , being so incorporated with the general work as to bo impossible for the plaintiffs to separate them, the original work would have been completed twenty-three weoks prior to the oontraot time. The plaintiffs therefore claimed on account of the promises, the sum of £2300, but the defendants refused to pay more than £6OO, being £IOO per week on the six weeks between the 23rd February and 7th April, 1882, declining to pay tho bouns claimed for the seventeen weeks during which the plaintiffs were engaged in carrying out tho {alterations, {deviations, &o. The plaintiffs, therefore, brought an action to recover £I7OO, being the balance of £2300 claimed by them.

The defendants now demurred to the first oount of plaintiffs' declaration, on several points of whioh the following grounds are the most salient: —l. That it appeared from the contract and special conditions that the plaintiffs were not entitled to receive the bonus of £IOO per week for seventeen weeks np to and ending on the 23rd February, 1882. 2 That the plaintiffs contrasted to make and complete the works, together with the deviations, alterations, &c, within the time speoifUd in the contract. 3. That the only sum to whioh the plaintiffs are entitled is £6OO, being at the rate of £ICO per woek, or part of a week, in whioh the whole of the works of the oontraot, including additions, alterations, snd deviations, should be oompleted within the specified time. 4. That it appeared that the whole of the works of the contract, including the said additions, deviations, and alterations, were not fully completed and execute 1 to the satisfaction of the engineer until February 23rd, 1882. 5. That it doss not appear that the defendant was bound to allow or recognise any|[extension of time for the making and executing the alterations, additions, and deviations, unless the same has been allowed by the engineer by a certificate in wiiting under his hand. 6. That it does not appear that the plaintiffs have produced to tho defendants a certificate as aforesaid. 7. That it does not appear, nor is it alleged that the engineer did by a certificate under his hand allow any extension of timo for tho completion of the works under the said oonlract by reison of the making end execut : ig of the said (-Iterations, deviations, <fcc., so required by him. 8 That it may be assumed that the engineer did not (*'insider that any extension of time was necessary for the making aud execution of the additions, &c. 9. That it does not appear, nor is it alleged, that the engineer has by a certificate iu writing trader his hand certified under the condition in that behalf that the works of the said contraot have been finally and saL'tfactoiily completed, and that the said bsnus or sum of money sought to be recovered in this action ia due and owing to the plaintiff* from the defendants.

For the defendants, and in suppoi t of the demurrer, Mr George Harper, with him Mr H. N.Nalder.

',For the plaintiff and contra to the demurrer, Mr Joynt. Mr flarpar submitted that the contractor had under the contract and speoisl conditions agreed to complete the whole of the work within a gi7cn time, and the clause provided that the only way the contractors could approach the Board as against penalties for being over the time would bo by a certificate signed by the engineer, granting them an extension of time. Ho contended this was a condition precedent, and it was as necessary for the plaintiffs to obtain the certificate of the engineer with respect to the bonuses claimed by them. The olaes of cases in whioh contractors had set up the exeoution of extra works as a defenoe against a claim of penalties were different from this, inasmuch as in this contract time was of the essence of the contract, and the engineer had the power te extend the timo if he thought fit. It was therefore necessary for the plaintiffs to osme before the Beard with a certificate from the engineer that the extra works had been exeouted with due diligence, and that they wore entitled to au extension of time. The Board could cot say whether this had been done, and therefore it was necessary to enable the plaintiffs to claim the forms, that they should approach the Board with this certificate. |_Cas»s cited in support : Jones v St. John's College, Oxford, 40, L.J., Q. 8., p. 80 ; Boberts v Bury Improvement Commissioners, 39, L.J., OP., pg. 129; Fuller v the Queen, 2 N.Z. Jurist, pg. 20.] He submitted that the contract provided for the completion of the whole work by the contractors within the time mentioned in the contract, viz,, April 7th, as if they could establish the proposition that the contractors entered into the contract with the contemplation of completing the whole works, including the extra works, deviations, alte/ations, its , within the time specified by the contract, then the plaintiffs were only entitled to receive a bonus for six weeks. The Board could say that they were not aware of the engineer being satisfied that they had exercised due diligence, and that though, while it might have Stikou them seventeen weeuS to complete the alterations, &a., it was necessary that they should produce the certificate of the engineer to show that they had been grunted an extension of timo, i e., that seventeen weeks had been consumed in oampletiug extra works, whioh would show the Board that the contractors had really complotod the whole work seventeen weeks prior to the 23rd February, 1882. Then the plaintiffs oould, in olaiming the bonuses, put in this certificate. He desirad to submit to the Court that the clause providing for the bonue made it a condition that it must be earned by the completion of "the oontraot" prior to the 7th April. The coDtraot oomprised what might be called the original works and the alterations, &c., so that he contended "the contract" must be taken to mean the whole work, including additions, &o. If the work had not, without additions, been completed

within the oontraot time, the plaintiffs would have bad to go to the Board with a certificate of extension of time from the engineer, : to save themselves from the penalty. So also I was it neoesiary, when they olaimed a bonus, and it wai imperative that they should put into their declaration not alone that the extra works had taken seventeen weeks, but also that they had reoeived a certificate of extension of time to that extent from the engineer. He wished to point out to his Honor that it was contemplated, in all oontraots, that there must be additions, alterations, kc, yet the plaintiffs contracted to complete the whole work, including extras and additions, trns'ing to an indulgence from the engineer if these works delayed them beyond the contract time. Thus it must be taken that they contracted to complete all, including additions, &o, by the 7th of April, 1882. [Oases cited in support, Thornhill v Neats, 8 O. 8., N. 8., 831; Walker vL. and N. W. Bailway Co., 45 Ij.J., Q. 8., 787.] He would now turn to the last ground of demurrer, that it did not appear that the engineer had certified that the work had been satisfactorily completed and that the bonus was due. This was a oonditioa preoedent applying to all moneys due to the contractor, and the plaintiffs should show that they had fulfilled it [Case cited in support, Henderson v Napier Harbor Board ] His Honor pointed out that no doubt Mr Joynt would argue that the plaintiffs would, if the clause be strictly construed, be placed at the mercy of the engineer who might load them with extras preventing them from earning any bonus. Therefore that the contraot must be oonstrued as implying that this would not be done. For these roajons and relying on the authorities cited he submitted that the demurrer mutt bo allowed.

Mr Nalder pointed out that the contract in I this oase differed from the ordinary con--1 traots, inasmuch as it was made by deed under seal, and therefore there could be no implied contract, nor could the oontractbe variid by parol. The terms of the deed were exceedingly explicit in themselves, and ha submitted that the whole question was whether the extra works formed part of the contract. The engineer was to value these extra works, and the amount to be paid therefor. The Board was also to consider any extension of time granted by certificate of the engineer. The pkintiffs oould therefore only show that the original conditions of the deed were varied by the production of the certificate of the engineer that extra time, amounting to seventeen weeks, had been granted. This had not been done, and therefore he submitted that the demurrer must be upheld. [Left sitting.J