DISTRICT COURT.

Manawatu Standard, Volume X, Issue 50, 27 July 1885, Page 2

DISTRICT COURT.

SATURDAY.

Manawatu" County Council t. Duncan A. Poole "and Josenh Trask. Before resuming rebutting evidence, His Honor thought the question as to non-suit creating an estoppal should be argued. Mr Baker urged that the law had decided that . any material issue one© decided, no matter what it was, those issues are decided once and for all, and cited Taylo* on evidence page 1431 volume EL In many cases judgment is tendered m evidence not merely to prove existence of same or .legal consequences, but m order" to conclude opponent on facts determined. I cite Heninan v. Lester m Fishers Digest to show my right to bring parol evidence of proceedings m inferior Court, or to explain the record thereof. His Honor : Is the judgment of non? suit* m writing. Mr Baker : No it is not. His Honor: It is not worth while wasting the timeiof the Court, first of all show that adjudgment of non-suit is conclusive. § ■ * Mr Baker: I am only asking your Honor to put m evidence of facts found. I am entitled to give evidence facts found by. the magistrate. I cite the Duchess of Kingston's case, S.L.C.j m support. I say that all the pleadings, and, issues decided by the Inferior Court may after non-suit m such Court be again brought m evidence here. Ail I ask for is whether lam permitted to give evidence of judgment after non-suit or bring parol evidence of facts decided on nonsuit? Can I put m record ? His Honor:. All the cases you hare read refer to judgments. Mr Fitzherbert : lam surprised at nay friend's argument, the cases he has cited are entirely inapplicable to the present case. He is at sea in -reference to the difference, between a judgment of nonsuit for plaintiff and judgment for defendant. ?I cite from Pollock's County Court Practise, page 106, also Burton v. Allen, 13, N.Z J.R.N.S., which latter case decided without a doubt that unless magistrate found a verdict for defendant there is no estoppel. As to defendant's counsel's argument respecting issues, he cuts his own throat, as where issues were given-thoy appear on the record. His Honor ruled entirely against Mr Baiter anlSsßaid that? tlie law was qmite certain on the point. Digests which are more or less abbreviated are decep. tive and misleading. It is clear that a non-suit m an inferior Court is' not an estoppel m this Court whether R.M. found on facts or not. He would strike out this question from the consideration of the jury altogether. J. T. Stewart, :on his former oath said : I prepared plan m 1884. Took levels myself . The nature bt the drain was sandy and a great, deal of timber lying about it. The effect of timber was to": make irregular levels. My grade and Dnnrlas' grades correspond. lam satisfied rhv levels are correct, and Mr Dundas 1 Iplans bear this out. The width varied from 12 feet to 3or 4 feet. Not as much as 2000 yards was taken out of drain at all. Poole n ® v€ * ..'showed me any discrepancies m level. - Henry-McNeil: lain a practical contractor. :. Contracts of .this nature ought to be inspected ■■ by contractors. Cross sections are not required. Cross-eaxamihed by Mr Baker : It is an impossibility to take out quantities m contract of this nature. Re-examined ;b^vMr Fitzherbert : Would consider pli&ia/gave ample information. . ' 'v ! '■";'.■-"' Clarke'- Dunn-: I am a contractor. Have seen plan; .Consider same ample. Would certainly go; and inspect the contract; ". - George . Nye ": ; X ; ana an Overseer of Works for general Government. One of the owners *of property through which dram runs. There are five bends m drain! The soil is a peat swamp. Ground would be' irregular. Consider plan^produced sufficient to go by. Nicholas Marehant: I am a Civil Engineer. Have been over drain, the subject of action. - Checked grade of Stewart's plan. Found it correct. There would be no difficulty m arriving at a proper estimate by the plan produced. After Counsel on both sides had addressed the Court^ His Honor summed up as' follow of the jury, there are two preliminary remarks to make respecting this case. Firstly, you have nothing to do with the question of ion suit; for it ist decided law that * non- . suit does not bind the parties, and does not estop"p them from coming before me ..now.;.- Secondly, I beg of .you not to let your sympathies interfere with the case. You must' find your verdict irrespective j of the richness or poorness of the respec. tive parties. This is an action for damages for breach of contract. When parties enter into a binding contract it cannot be broken without the consent of both : parties. If either party breaks such contract, they are liable to an action of damage's for such breach. It is no excuse for a party to break a contract be. cause he has taken same at too low a | price. Now it has been, proved the defendants entered into the contract. The defendant's contract to do the work specified at £105 Bs, and it has been proved the plaintiffs had to pay £224 for the ..same. Therefore the measure damages wpuld be the difference between these two sums; It seems a -resonable tiling for a' corporate body to take the next lowest tender for the plaintiffs actually asked £123 extra. . The defendants al, lege plans were misleading* and were induced .to enter into contract by great'misrepresentations. If from evidence adduced you are satisfied the contract as described by the plans and specifications was substantially and materially reasonable, then the defendants were not justified m; .breaking contract, you will give, verdict for plaintiffs. If on the other hand you consider plans were unreasonably defective, you will have to decide whether defendants really were misled. It will be for you to' say whether there is not evidence to the contrary. On the 3rd March contractors went over the work. On the 6th March received progress payment. On the 9th March they wrote letter to the Council, stating they had taken contract top low, and requiring ■ £120 extra., it is f oj: you to say whether this was a complaint. If you are satisfied, there is a complete difference m substance by the plans and same not reasonable between what defendants contracted to do and what they . really had to do you will find for defendants. There is no evidence of fraud. The jury then retired and m about a quarter ot an hour returned with a verdict for defendants. The costs were then assessed by the Court, amounting m the aggregate \q «2o 2s> ■"■'• '.■'■■