'District court.

Manawatu Standard, Volume X, Issue 48, 24 July 1885, Page 2

'District court.

— YESTERDAY.

Ernest Sfep\en Thynne said : I am Chairman of Mtmawatu County Council. .Reinomber tender? being called on Jannary 1885. MessrsjPoole and Trask tendered m March for £105 Bs, Guerin also tendered at £200. Poole and Trask'* tender was accepted. Defendants called and signed contract to do work m accordance with specifications for sum of £105 Bs. Wag) present when .-■ defendants called for progress payment on March 6th 1885. Mr Poole received .same. On 9th March received letter from Poole and Trask re forfeiting their deposit on work. The defendants absolutely refused to carry on the work, although I gave them notice. I then gave : work to the next lowest tenderer.' v Guerin, who entered 'into ■agreement to execute works for £224 from this stun we deduct £25 the value of work done by the defendants. Guerin completed the work. I know Thomas Gibson! He was a Councillor m March. Had -authority fp call for tenders by resolution of Council 6th March 1884* cCross examined by Mr Baker : Called tenders as per resolution m 1884. The contract called for m 1884 was exactly the same as palled for m 1885. Acted upon authority received m 1884 tq acception of defendants' tender. A letter was sent to Messrs Poole and Trask accepting their jcontract. 'Progress payments wefe passed 'f or payment, and Poole received cheque. I saw Poole that day but had no conversation about extra work on the drain. He said something about giving him other work on account of his present contract not paying well. I told Poole he would have to do the work. - Subsequently saw jPoole and Trask who said they had called with, reference to notice calling upon them to complete contract. On 12th|>Ma|ch Poole, Trask, Stewart, and m^blf Were present, when Poole said tlii^fthsiwere wrong and lie would have Ins^rem^dy against Council. Our contention waS that ;:the ground was m the state represented by the plans. I told thpin I w,aß quite prepared to pay &£s#!£ work|i: There was a deduction "made for amoujit of work/defendants had done. Engmee%repprtedi and considered was payin^Mler^bigh^price to Guerin. If plans liit(l nqt;lieen challenged action would not havevbeen brought. Cross examined [by Mr Fitzherbert : Contract was ;|igned ih ; iFebruary, contract was thrown up some six weeks after that. It was 'urged on account of the.season to give remainder of contract to Guerin. James Wright; Stewart : lam the en. gineer to Manawatu County Council. Am aware of tenders being called for drain referred to. Was present when defendants signed acceptance of tender. They did no work after progress .payment wast made. I received letter from defendants: stating that they could not complete. The work was given then to Guerin aa being the best course that could be adopted. Guerin completed work. Cross-examined by Mr Baker. I prepared plans m 1884, went over grounds in'lßßs.but did not re-survey section of ground.* It wouldn't matter -what depth the drain was they were to take silt ont, ; Object of deepening drain was to better the grade. If contractors were required to takeout more than agreed upon they "would been titled to extras. Plans were perfectly correct. I went over ground with Poole. It was necessary to keep the grade line. Anj one taking the con • tract could follow the plan. Benjamin Robinson and Purcell's boundary is the last place took levels. I was overland several times, I know the levels were correct. I/kiiow the width of drain. The plans are only useful to the contractors, for the depths. Cross examination of Mr Stewart by Mr Baker (continued) V 6d to 9d per cubic yard silt would be fair price. The drain was full of timber.. Contractors use their own judgment m estimating tender. Took no accurate measurements of amount of work defendants had done. Allowed one-fourth of the work. Think the Council did right m accepting next lowest tender. Length of drain about 156 chains from flood gates to the end ot the contract Can swear to levels of plan, not to the length. John Guerin said : lam a contractor,' know drain the subject of action. Took contraot thrown up by Poole f0r. £224, less : £25. Signed contract on 19th March. At that time river is subject to floods thus making work more riskr. '/Finished contract' m May. Found no 'difficulty m completing contract. Got levels from the Engineer. He paaaed. my work. . Cross examined by Mr Baker : Don't know whether plans of Stewart's is cor. rect. Took drain for guidance. Never stated to Poole that plans were grossly incorrect nor to anyone else. * Re examined by Mr Fitzherbert : I am a practical contractor and went aid made estimate accordingly. • Case for plaintiffs closed, . Mr Baker asksdrfor a non-suit on the ground that the merits of the case had been decided upon . m an interior coui t and. anon suit entered no against plain, .tain's, and thus, stopping them from proceeding m the present; action.' His Honor characterised contention as "nonsense" and ruled against Mr Baker. : Mr Baker then opened for defendants .as follows :— Gentlemen 'of the jury I will prove to you that the motive, of the plaintiffs . m- ■■>. ■ ■':.'; ■- " ; . His Honor : What on earth has the motive 1 tq do with an action of this ?^quite- irrelevant; 1 ; -'Mr Baker : Gentlemen, the defence is that of gross misrepresentation and legal i fraud,'" not moral fraud, and from the ievirlence already adduced I- '■ His Honor : You must not addres the Court on the evidence jMr Baker. Mr Baker, (waxing wrath) : Your Honor ought not to stop me— really, m all my experience — - ." His Honor : Don't make a speech Mr Baker. Kindly open your case and do not comment on the evidence. It is wasting the time of the court and most annoying to myself and to counsel on the other side, to have to be repeatedly reminding you. Mr Baker then proceeded and called George Diindas, who said : lam a licensed surveyor. Took levels of drain at MotoafoE Poole. Made a section of drain (prpdnced), . swear measurements correct. Took check levels. Show top of silt as I found it, also the grade. Found a number of stumps along drain upon' which silt -must have been. A\ Purcell's boundary I found a side drain, I say Stewart's plan is seriously incorrect* I find length of drain 163 chains, i.e. a! difference of 9f chains. It is impossible to show the existing state of drain without showing cross .section. ' Cross examined by Mr Fitzherbert : I should not think a contractor very prudent if he did not look over his work be fore forming an estimate and tendering for a contract of this nature. I estimated grade lines lin 2500. It would he , impossible to give an accurate estimate of the quantities by Stewart's plan. J. T. Stewart said : The 8 or 9 chaing which the Guerin's did was not ordered and was not paid for. It was of no use This 8 or 9 chains will account for error of Mr Dundas' as to length of drain Duncan A. Poole said : lam a con. tractor and a. mining engineer. Have been employed by Mr Hankins as an ex, pert. Know Mptoa, Tendered for construction of same. Know how dra'n run*. Contracted to deepen drain ac cording to plans and specifications. Drain was to be deepened 7ft to 10ft wide' Asked enginear fpr cross, sections w ftw respect th Width. Mr Stewwt rS

me I was to add 2ft 6in on the width; of old drain between MacphersonV and Lark worthy's. This was at time of en- . tpring into contract when >tr J Stewart asked me if I had put m a high enough figure m my tender. I saidif.your plans are correct, I shall stand my my estimate. The greatest expert cannot tender for work without taking out quantities. On Tuesday, 10th Februrary, started work at flood gates. Found depths fairly correct, but width not correctly repfo- . Rented. The drain averaging from flood' eates to bridge was about Bft wide. ; . jfo V'saW" ' engineer and complained abdut width;i^He said, " Go on, yon will get paid; for. extra work." The first intinta- 5 / tioin th"at I had that the depth of drain wwass s incorrect was on 2nd March, I, then went; over work for firstTtiuie. Did not go over, plan' because took plans of profes- ■-.■'■■. siorial uaan to be correct.' ' [Left Sitting.! • .. -..■ - ■ -■ ha ■'■- ■ ■