SUPREME COURT.

Globe, Volume XXIV, Issue 2613, 22 August 1882, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Monday, August 21. (Before His Honor Mr Justice Bicbmond.) His Honor held a sitting in banco at 10.30 a.m. WAEB AND JONES T LYTTELTON HAEBOUB BOABD. The following argument, after we went to prc:s yestorday, concludes this case : Mr Nalder pointed out that the contract in this case differed from the ordinary contracts, inasmuch as it was made by deed under seal, and therefore there could be no implied contract, nor could the contract be varied by parol. The terms of the deed wore exceedingly explicit in themselves, and ho 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 plaintiffs could 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 ho submitted that the demurrer must be uphold. Mr Joynt contra submitted that the count was good. His learned friends divided their argument into three headings, viz.—first, that the works included in the contract, together with all extras, must be completed within the time ; secondly, that to obtain a bonus for saving of time the plaintiffs were bound to produce a certificate of extension of time ; and, thirdly, that apart from all the Board had a right to demand the certificate of the engineer that the whole works, including alterations, had been completed with’n the specified time, ond that the plaintiffs were entitled to the bonus claimed. He submitted that all these arguments were based on fallacy. In tho specifications the language used in speaking of the works was utterly at variance with the supposition that the wocke'included the extras. It spoke of the price to be paid, the time wherein which the works wore to be completed, and also spoke of the works themselves. He submitted that the whole tenor of the deed went to show that tho words “ complete the contract ” meant the original contract works and no more. His learned friend had mrle as hit greatest point that the contractors bound themselves to complete all the works, including the extra works which might bo required, within the contract time. If he could have proved this, there was no doubt he would have secured a great point for his client. But it was not so, because to assume this was, as be would show bis Honor, by reeling portions of the contract, to make the deed an absurdity. First, he would point out that the sum for tho contract was fixed, and that the deed went on to speak of the work to be done, as “ shown aud described in plans and specifications annexed.” In tho general conditions, also, it would bo seen that the words “ contract price ” were interpreted as meaning tho price at which tho contractor tendered for the work, which was totally inconsistent with the assumption of his learned friend, that the contract included the extra works because the sum was fixed and ascertained before the extra works were ordered. This was also strengthened by clause 5, which spoke of extras within and without the contract, the former of which were expressed in the deed, and the latter left to the discretion of the engineer to order as tho work progressed. The clause went on to say that “ no matter how extensive tho alterations might be,” they were to be exeonted by the contractor if required. Yet his learned friend wished to make the Court believe that it was understood, no matter hew extensive the alterations wore, they were bound to complete the whole contract within the period specified. He desired to point out to his Honor that tho clause stated that the works were to be completed by the 7th April, but that if any extra works were required an extension of time would be granted. This precluded tho idea that the words “ contract works” included any extra works or deviations, the clause dividing these works into two parts. He further referred his Honor to tho first clause of the specification to show that it was only the original contract work and not the extras which tho contractors were bound to complete by the 7th April. [Road.] By this there was a distinct definition of tho works and there was no mention of tho extras. The latter part of the specification said that tho contractor should fill up a schedule of prices fora lump sum to complete the work. There was no doubt that the sum to bo paid was for specified works ; all the clauses dealt with these, and there was no reference whatever to extra works. As to tho ground that it was necessary to obtain a certificate from the engineer that the extra, time of seventeen weeks had been granted, he pointed out that it was only necessary for the exoneration of the contractors from the penalties imposed by the deed for noncompletion of the works. Ho submitted that tho matter was purely one of fact. Tho plaintiffs stated that a bonus of £IOO per week had been promised them for tho completion of the work, which, had the defendants not encumbered the work with extras, would have been completed twenty-three weeks prior to the contract time. Now, supposing they had gone to the engineer and asked for an extension of time, the engineer would have said at once—“ How can I give give you an extension of time when I can aee you will be finished before the contract time.” This would be unfair to the Board and the contractors. It there was anything in what his learned friend said, then they should have asked Mr Bell for a certificate that but for the extra works they would have finished tho work twenty-three weeks sooner than the contract time. Further than this ho pointed out that it mnet have been in the mind of the Harbor Board aa to what works were to be

finished when they covenanted to give £IOO per week bonus. This mast have meant the wo»ks tendered for, and for which the contractor was to be paid a lump sum. It certainly could not have referred to works of which they had no knowledge at the time the contract was made, as neither party knew what works might be added to those mentioned in the deed. The fair inference wa*

that if the Board gave extra works they would allow for the time to complete them. If not, then the offer of a bonus was merely paltering with the contractors. Supposing the extra works bad occupied the contractors up to the very day of the completion of the contract, though the original work might be completed twenty-three weeks previously, the Board, if the contention of bis learned friend was accepted, might say that they were not entitled to one shilling. He submitted that it was obvious this could not be the meaning in the minds of the parties at the time of making the contraot. Therefore de facto it must be admitted that the contractors were retarded for seventeen weeks in the completion of the original works, and therefore debarred from receiving the bonus for that period. He might say that ho had decided not to quote any case* at all, because with the law laid down he quite agreed ; and further, the oases did not apply to this case, which, so far as he knew, was a novel one. The oases cited all came within three heads, viz , recovery of contract money; delay as a set-off to penalties'; and damages for delay of contractor by imposition of extra works ; and it necessarily followed that the production of the certificate of the engineer was required. He would now some to the last ground of the demurrer, and submitted that no such certificate wa* required for the payment of the bonus. There was a provision for the production of a certificate from the engineer as a condition precedent to the payment of bonus. The engineer’s certificate was required for exempting the contractor from penalties, fixing the extended time, the obtaining of progress payments, and tho payment of the balance of the amount due under the contract and the cash deposit. He would go further, and say that the defendants were estopped from alleging that it was necessary to have the engineer’s certificate, because they had by their demurrer admitted that the works bad been completed to the satisfaction of the engineer, and also that they had paid a portion of the bonus which was only to be paid on the completion of the works within a specified time to the satisfaction of the engineer. He submitted that the bonus was neither a progress payment nor the balance payable under the contract. Hence there was no necessity for the production of the engineer’s certificate.

His Honor said he thought Mr Joynt was quite right in not contesting the general principles of law laid down in the cases quoted by Mr Harper, as this was a case purely of construction of the contract. Mr Joynt said that was so. He contended now that what was in the minds of the parties at the time this bonus was offered was, that it should be paid for the completion of the original contract, and that if by the imposition upon them of extra work they were prevented from earning this bonus, they were entitled to bo given credit for the time thus occupied. For these reasons he submitted that the demurrer must be overruled.

Mr Harper shortly replied, and His Honor took time to consider. Tho Court then adjourned at 4 p.m. till 11 a.m. to-day, Tuesday, August 22. His Honor resumed tho sitting in banco at 11 a.m. STONYBB AND OTHEH3 T WILDIB AND OXHBES. This was a motion on summons from a writ of prohibition to issue to the Judge of the District Court to stay further proceedings in the action in the Court below between the plaintiffs and the defendants. Mr Joynt for the defendants, and in support of the prohibition. Mr George Harper for the District Court Judge and the plaintiffs, and to show cause against the prohibition.

From affidavits filed it appeared that the defendants in the Oourt below were sued by the plaintiffs, and that at the time of the trial the solicitor for defendants objected to the jurisdiction of the Oourt on the ground that the claim was beyond their jurisdiction, the whole account current amounting to over £6OO. It was also alleged that no ascertained balance had been arrived at, bringing the claim within the jurisdiction. This, however, was overruled by the District Court Judge, ond judgment given for plaintiffs. The affidavit of the District Court Judge stated that on examination of the claim he arrived at tho fact that the first eight items in the claim and the last item were in the nature of credits or sets off agreed to, and ascertained as between the parties. The items amounted to £572 9s 63, and after deducting this amount from the total claim of the plaintiffs it left a balance of £72 7s 6d. He also found that in regard to the last four items that there was no agreement thereon between the parties, and after hearing evidence he gave judgment for plaintiffs for £32 Ss 7d. A number of afSiavits were read, and without calling upon Mr Harper, dismissed the summons.