SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 5090, 17 July 1877, Page 3

SUPREME COURT.

CIVIL SITTINGS, Monday, July 16.

(Before his Honor the Chief Justice and a

Special Jury.) The Court sat at 10 o’clock. W. COLE V. C. M'KIKDT.

For plaintiff Mr. Barton, for defendant Mr Gordon Allen and Mr. Hart.

This was an action to recover the sum of £2OOO for goods sold and delivered, and for an alleged breach of agreement for the supply and purchase of 90,000 bricks for the Wellington and Masterton railway. ' Plaintiff also alleged that defendant unlawfully converted certain property—horses, carts, pugmill, &c.— belonging to plaintiff. The defendant pleaded not indebted ; and that as to the agreement for the bricks, it was a condition precedent that they should be passed by the Government Engineer, and that he did not pass them. Defendant also denied having converted plaintiffs property. Walter Cole, the plaintiff, deposed that he is a brickraaker, living in Wellington, and is acquainted with a Mr. Price, who acted as agent for Mr. MoKirdy, the railway contractor, and the defendant in the present action. Plaintiff agreed with Mr. Price to make 90,000 bricks for Mr. MoKirdy’s contract on the Wellington and Masterton railway, at £5 per 1000, and if: more were required, they were to be supplied on the same terms. The agreement was reduced to writing, and plaintiff set to work. The bricks were fair town bricks. Witness made 16,000, which were not passed. Previous to this, Jupp and Co. had been making bricks, but had not succeeded. It was a very difficult place to make bricks in. Plaintiff then made 9500, which were passed and paid for. Subsequently there was a dispute, and defendant would only allow for 5000 out of the 9500. Plaintiff was then asked tosupply some bricks' for a point higher up the line ; hut as it was' not in the contract, plaintiff objected. Mr. McKirdy and his agent subsequently told' plaintiff that 30,000 bricks were required at the first culvert, and that the latter had better move to the spot and go on with the work. Plaintiff did so, and a second agreement was drawn up ; but it was not intended to bo in substitution of the first. Plaintiff went on with the work, and defendant used 26,000, and also carted for himself bricks from the Hutt, about 60,000 being required at this spot. Plaintiff sustained a loss on this part of the transaction. About a month afterwards, Mr. Price asked witness to go to the tunnel, and i fix on a place for making bricks. A spot was fixed upon about 21 miles 8 chains from town. Plaintiff proceeded to enumerate the different lots of bricks supplied by him from time to time. Plaintiff received in payment £6Bl 10s. since the contract commenced. The only profit plaintiff would have made was at the tunnels, and he made considerable preparation, and laid out a large sum of money in order to carry out his work. Plaintiff made altogether 158,000 bricks, which were passed and used. When plaintiff left there were a quantity, of bricks on hand. On duly 16, 1876, plaintiff received a letter from Mr. Price stating that Mr. MoKirdy did not want any more bricks from plaintiff, as he had not made and delivered the bricks at the places specified. On receipt of this plaintiff expressed considerable surprise in conversation with Mr. Price, who said Mr. McKirdy would come to some arrangement which would be mutually satisfactory. Some days afterwards Mr. McKirdy came to the spot, but no arrangement was effected. Subsequently an interview took place at Mr. Coker’s, when Mr. McKirdy said he was expecting to get some more money from the Government for extra work, and if he got it he would pay £4 per thousand, and if he did not he should only pay £3 ss. per thousand. Plaintiff threatened to stop work, but Mr. McKirdy told him to go on, and ho would let him know when any further arrangement was made with the Government. In November, when pay day came, Mr. McKirdy said there was no money coming to plaintiff, as moneys already paid balanced the account.

He, however, said if plaintiff would put out the bricks in the kiln he would let him have £25 to pay wages with. Plaintiff started to deliver these bricks, and went into town where he saw his solicitors (Messrs. Hart and Buckley), who communicated with Mr. McKirdy in reference to the matter. lu reply to that Mr. McKirdy wrote to say that plaintiff was in debt for condemned bricks, and that the price was to be £3 ss. per thousand. Plaintiff never agreed to supply bricks at such a price. Afterwards plaintiff endeavored to get the matter settled by arbitration, so as to avoid bringing it into Court. Mr. McKirdy proposed that plaintiff should take £IOO for the “ lower place.” He had two. Plaintiff declined the offer. Ultimately plaintiff took legal proceedings. Plaintiff has seen McKirdy’s men using his (plaintiff’s) plant : sheds, pugmill, two horses and cart, wheelbarrows, of the aggregate value of £320 16s. , The total number of bricks supplied by plaintiff and passed and used was 187,195, and there were 18,000 burnt bricks, and some green bricks on the ground when plaintiff left. Plaintiff never authorised defendant to take possession of these things. Plaintiff had agreed to dispose of the horse, cart, and some other things to Mr. Prentiss to pay wages with. No bricks were supplied for the tunnel other than plaintiff’s up to the time of plaintiff leaving the work, A number of bricks which had been ; passed by previous inspectors were afterwards 1 condemned by Mr. Brooks, who was much more particular than his predecessors. Plaintiff calculated on making a profit of £2 10s. per thousand. To complete one tunnel 100,000 more bricks would have been required, and for the other tunnel about 800,000.

The plaintiff was subjected to a long crossexamination by Mr. Allan as to a variety of items of accounts, with a view to show that all that was due and owing to Mr. Cole had been paid. William Hillier was next called in support of the plaintiff’s case to speak to the excellent quality of the bricks supplied by Mr. Cole. The bricks, he considered, were “as good as hands could make them.” Whilst witness was at work at the tunnel no other bricks were used except those supplied by Mr. Cole, and they were all passed by the Government inspector. Mr. Burton, bricklayer, deposed as to the good quality of the bricks. D. M. Brooks was called, and before he was sworn asked who was to pay his expenses, adding that he had consulted Mr. Travers, who advised him to ask the question. The witness was told by the Court that he was entitled to be paid his expenses. He then said he would like to have the cash down, and was thereupon paid by Mr. Barton's clerk 15a. He was then sworn, and proceeded to say that he was a Government Inspector of Works, and had examined many thousand bricks supplied by plaintiff. A csnsiderable number were rejected and others passed. There were about 160,000 bricks required for the tunnel.

At the conclusion of this witness’s evidence Mr. Barton suggested that the case should be adjourned until next morning, but the jury said they would prefer to go on. Mr. Barton then said that he had two more witnesses whom he had intended to call, but he would now close his case. Mr. Allan then addressed the Court and jury for the defendant, contending that plaintiff had been paid all that he was entitled to receive, and that he was not entitled to recover any damages whatsoever. He called Charles McKirdy, the defendant, who deposed: That He was a railway contractor, living in Wellington, and had a contract for a portion of the line of railway to Masterton. The plaintiff agreed to supply bricks, but they were not promptly supplied according to contract. He was firatto make 30,000 at Kaitokai, and of that number 16,000 were to be made in three weeks, but at the end of fourmonthshe had only turned out 5000 bricks fit to pass. Witness had to purchase other bricks to go on with his contract. Cole then suggested that he would make bricks at another point on the line, which was fixed upon near the twenty-one mile culvert. He set to work there to make 30,000, but did not produce more than 16,000 or 17,000 altogether, and bricks had to be procured from other places. The tunnel fell in after the work had proceeded for some time, up to which time plaintiff had supplied 30,000 bricks. At the point at 24 miles 15 chains, at which he was to make 30,000, he never made any at all. Witness saw Mr. Cole at Coker’s Hotel, and told him that at the rate of prices, and as witness had enough bricks to go on with, he could not give more than £3 ss. per thousand, but that if Government increased their price witness would give £4 per thousand. Witness deposed to plaintiff wanting an advance of money, but witness hearing he was going to “bolt," and their having been so many brides condemned, witness declined to make advances on any bricks whilst in the kiln. Witness denied that there had been any unlawful conversion by him of the goods and chattels of the plaintiff. . ■., The Court adjourned at half-past 6 o’clock until 10 o’clock this morning,