DISTRICT COURT, GREYMOUTE

Grey River Argus, Volume XV, Issue 1828, 15 June 1874, Page 2

DISTRICT COURT, GREYMOUTE

Saturday, June 13. (Before his Honor Judge Harvey.) MAYOR AND CORPORATION OF THE BOROUGH OP GREYMOUTH V. HUGHES & m'cARTHY. This was an action to recover LI 16 13s 4d, payable to the plaintiffs upon an agreement entered into between plaintiffs and defendants on the 4th of February, 1874, relative to the employment of Mr Moriarty, engineer, in the. survey of the Grey harbor. The following is a copy of the alleged agreement upon which the action is brought :— " Office of the Brunner Coal-mine, ' ' Greymouth, 4th Feb. , 1874. "To the Mayor and Councillors of the Borough of Greymouth. "In the event of the Borough Council engaging the services of Mr Moriarty, I engineer, for the purpose of reporting upon the Grey river and harbor, the lessees of the Brunner Coal-mine undertake to bear one-third of the amount of his fee, L 350 (say), one hundred and sixteen pounds, thirteen shillings and fourpence (Lll6 133 4d). " For the lessees, "D. A. Hughes, " T. E. M'Cauthy." Upon the receipt of this, and a similar agreement from the Greymouth Coal Company, Mr Moriarty's services were engaged. He came here, surveyed the harbor, but has not yet made his report. The defendants denied, first, all the material allegations in the plaintiffs particulars of claim ; second, that the agreement alleged to have been entered into between plaintiffs and defendants was ultra vires of the plaintiffs ; and, third, that the defendants never were indebted, as alleged. Mr Perkins appeared for the Corporation, and Mr Button, with Mr Newton, for the defence. Mr Perkina opened the case, rtading the agreement upon which the action was brought, and explaining the facts as set out above. The agreement was that the two Coal Companies and the Borough Council should pay equal thirds towards bringing Mr Moriarty here to report upon the improvement of the harbor, but since that agreement was made the Nelson Provincial Government, and the Westland Provincial Government, had both voted subsidies towards Mr Moriarty's fee, but still the Borough Council claimed the full amount of the promised subsidies froth the Coal Companies. The Greymouth C<>al Company had passed in their cheque for the amount, depending upon receiving a refund pro rata from the Government subsidies, but the defendants in this action objected to do so. They had offered their cheque for the amount of their liability, LSO, reduced in proportion to the Government subsidies, but this had been refused by the Borough Council, who claimed the full amount. Before the case went to proof, Mr Button moved for a nonsuit on the grounds mentioned above— that the action was prematurely brought, and was ultra wires, in so far as the Council had no power to make any such agreement with Mr Moriarty, it being out of their jurisdictioDi' He said that before he entered on the legal aspect of the case he felt bound to address himself to the moral considerations connected with the position of the defendants in the matter. So far as they were concerned they were now, aa they always had been, desirous to fulfil the undertaking they had made. They undertook in effect to bear one-third of the amount of the fee which would be coming to Mr Moriarty, after reducing its total amount by the contributions of the two Provinces. These contributions amounted to L2OO, so that the original fee, which had been fixed at L 350, would thus be reduced to LI SO, which, according to the agreement, was to be divided between the three contributories, viz., the Borough Council, the defendants, and the Greymouth Coal Company in equal proportions, that is, each was to pay LSO. That was in effect and good faith exactly what was undertaken by the defendants to do. This they had offered to do, both by letter and !by formal tender of their solicitor, but this offerhad been contemptuously refused, and the Borough Council rather chose : ; to stand on the technical advantages they thought they had under the written agreement of 4th February, and he would say that the Borough Council were, as appeared to him, endeavoring to take a dishonorable course by obtaining all the contributions which were agreed to on the understanding that they also contributed, and then as these would' be sufficient to pay the total expenses, they hoped to get off scot free. That the agreement wa3 ultra vim-Mr Button contended, on the grounds that by virtue of the Act of Incorporation the Council had no control over the harbor of Greymouth, and that corporate bodies could not contract for any works save those specified in the Act, by whiph the body was incorporated, the only clause of which was one empowering them to deal with sewerage, and he certainly did not think the Grey River could be considered a sewer. The Judge : I have heard it called a creek, but never a sewer. Mr Button : The Corporation are authorised to deal with the wharf, but not with ihe harbor. The cases quoted in which the Corporation cannot enter into any contract ultra vires are numerous, and he quoted a number, but could no,!; read the reports of the cases, as they were not to be had in Greymouth. Mr Perkins, in reply, said that the subsidy raised from the Nelson Government was for obtaining the report, and not to go towards payment of the fee to Mr Moriarty. The Judge : I say at once the Corporation have no right to get that money from tarn Provincial Governments without returning it to the other parties. They must divide it. It was no part of the agreement, bat the Corporation have no right to receive one farthing more than the other parties to the agreement. They were all co-partners in the transaction. Mr P>erkins said this was an action for debt. TJie agreement was that jn the event of the plaintiffs engaging Mr Moriarty to report on the harbor works, ';he debt accrued to the plaintiffs. All the conditions precedent to the agreement had been fulfilled so far as the plaintiffs were concerned. The Judge : And whenever Mr Moriarty was engaged the money was payable ; to whom? Mr Perkins : To the parties who engaged him, the Borough Council, Supposing then that owing to a ohange in the course of the river, the report of Mr

Moriarty was now foriiid'tp be useless, and he did not claim his' fee, and there had been L3OO spent outside'of the original agreement, would these parties not still be held responsible for the amount of their gurantee. If the agreement said the subsidy was only to be paid whenever the report was sent in, and if it was never sent in the plaintiffs would still have a claim for the amount now sued. The Judge : It would be most dishonest to do so. I feel assured the Council would never act in such a manner. Mr Perkins : I only put it as a suppo- j sitious case. As to the second point that j it v/as ultra vires, he argued that this was a contract for the improvement of the Grey River and harbor, and that under ! the Municipal Corporations Act this was within their control, as their jurisdiction; extended to the middle ot the river, and all the works which had been done under the agreement with Mr Moriarty were within the Boroogh. The Judge: What! Did I not see him on the flagstaff once ? that is not within the Borough. Mr Perkins : No, he might not then be taking soundings. The Judge : Perhaps not. The Grey River is not within the Borough. Mr Perkins : The Grey Harbor is within the Borough. The Judge : Not that I know of. When you are talking of a wharf do you mean a harbor ; because when I am speaking of a wharf I mean a wharf. • . i Mr Perkins pointed out that the object for which the expense was incurred to obtain the plans was perfectly legal, not ultra vires, as it was for' the purpose of laying plans before Parliament in order to borrow money for harbor improvements. As the wharves were within the control of the Council, it was quite within the scope of their duty to see after the improvement of the shipping accommodation ; and that was the object of the work contemplated by the Council in engaging Mr Moriarty. Mr Button very shortly replied. The Judge said he would take time to go through the cases which had been quoted by counsel on both sides, but he could not help thinking it would have been better if the action had never been brought. The Corporation should have put all the money together and divided it into three parts. That was the true solution of the difficulty, as no party had a right to more than another. He threw this out as a hint which might y<st be acted upon. He would endeavor to give judgment on Thursdayj but, if not. towards the end of the month, on his return from Westport. In Bankruptcy. Final orders of discharge were granted in the following cases : — Henry Francis, Thomas Bachelor, Charles Crocker, Benjamin Fuerst, and Edward Fielder.. The petitions of Peter Mulvey and John Quinlivan were struck out for non-attend-ance. Thomas Hdghes— This application was adjourned to the next sitting of the Court. An order was granted for complete execution of the deed of arrangement in the estate of Dennis Carroll. In the estate of Walter Hill an application was made for an extension of t'me to complete the execution of the deed of arrangement, as the principal creditors resided in Melbourne, and no answer had yet been received from them. Adjourned until next sitting of the Court. The Court then adjourned.