SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5282, 28 February 1878, Page 3

SUPREME COURT.—IN BANCO.

Wednesday, February 27. (Before their Honors the Chief Justice and Mr. Justice Richmond.) The Supreme Court opened for the delivery of judgments in the following cases:— HBNDEB3ON V. THE QUEEN., The Court delivered judgment as follows: This is a petition of right upon which a special case has by consent been stated for the opinion of the Court. The suopllant Is a contractor with the Government for the execution of a portion of the Mount Eochfort railway. The works consist in part of embankments carried across swampy ground. In the construction of these embankments considerable subsidence of the materials took place, and the contractor claims to be paid as an extra for the work rendered necessary by subsidence. A plan and longitudinal section of the line accompanied the specific atlon. and are referred to by it. Portions of this plan and section also form a part of this case. The ~notation of a few words from tho second clau-o of the specification headed "Drawings" will, with a little explanation, show the general nature of the coatxo-

versy. The longitudinal section “represents, it is said, “tile natural profile of the ground along the centre lino of the railway. The reel Hue shows the level of formation, ami the portions colored red and blue the amount of excavation ana embankment required respectively.” On examining the longitudinal section wo Hnd that it shows as usual a datum line, from which perpendiculars are drawn, at intervals of .a chain, to an irregular hue representing the natural protile of the ground. Where tilling is reouired these perpendiculars of course fall short of the red line, showing the level of formation, and the difference is express I in feet and decimals of a foot by blue figures, indicating the requisite height of emtankmen t, if reckoned from the natural surface. Where cutting is required, the perpendiculars cross the same red line, and red figures indicate the requisite depth of cutting. It is admitted tiiat these red and blue figures are what is meant by the expression “the portions col-rod red and blue in the clause just cited from the specification. On the part of the Crown it is contended that the contractor is bound, without extra charge, to make up the embankments to the level of formation as shown by the red line, whatever may be the amount of material require I. On the part of the suppliant it is argued that he lias ■ nly contracted for the height of embankment shown by the b'ue figures, and that where, from the soft and spongy nature of the surface, more material has been swallowed up, he is entitled to be paid for the difference. The main argument on the part of the suppliant is derived from file language already quoted from paragraph 2■ of the specification. The portions colored bine, or rather, as just explained, the blue figures, show, he contends, the amount of embankment contracted for. He supports this by pointing out that in clause 6, under the head “ Earthworks, a definite provision is made for the shrinkage of material in embankments “Subsidence" he contends is quite a distinct thing from “ shrinkage, and this express provision for the former is an agument to show i hat the latter is unprovided for. These arguments do not, however, in our opinion, countervail those adduced or addueihie on behalf of the Crown. In the first place, the contractor, by clause 4 of the specification, undertakes to construct and complete the railway “ in accordance with the plans and specifications, and to deliver the same complete : and is to maintain and keep the said railway, and all works connected therewith, in perfect order and repair for the space of thrge months from the delivery of the same to Goi eminent.” By the third of “General conditions." it is provided that “it it shall be found that anything has been omitted or mis-stated, eitherin the drawings or specifications, which is necessary for the proper performance and completion of any part or parts of the works, the contractor shall at his own cost and expense execute the same . . . and he is further required to inform himself completely and thoroughly of every circumstance connected with the work, and to provide in his tender for every contingency that may arise.” Many other provisi ns of the specifications show that it was contemplated by the parties that the railway should be handed over with the permanent way complete and in a state fit for trafiio—especially the minute provisions of clause 14, for adjusting the rails to line and level. All this, in our opinion, is inconsistent with the s pposition that the work of the contractor under the contract was complete, as regards the formation level, when he had provided such an amount of filling as would suffice if the embankment could be floated on the surfac of the swamps which they ha e to cross. If the controversy rested solely on the eeneral provisions we have cited, the case would have a good deal of analogy to that of Williams v. Fitzmaurice, 3 Hurl, and N. 344, where the specification in a building contract for the erection of a house, and its completion fit for occupation, omitted to men ion flooring ; but it was nevertheless held that flooring was included in the contract as essential to a complete house. So here, the construction of the permanent way would be impossible, and the railway unworkable, if the contractor, after tipping into the swamps such an amount of material as would suffice to raise the embankment to the proper height if the surface were solid, were entitled to say that the earthwork was complete. But there are other weighty reasons against ihe claim. Both plan and longtitudinal section show the swamp> on the line : and a dotted line in the latter, below the profile of the surface, is marked as " The approximate level of hard ground." In this connection also it may be remarked that- no schedule of quantities was provided by the neer. The contractor was required to get out his own quantities, and to annex to his tender a complete schedule of quant.ties and prices (see clause 25 of “ The General Conditions ”). and by the same clause, which to some extent reiterates the provision of clause 3, already cited, he is debarred from demanding an extra price “on the ground that the nature and extent of any of the works neaessary for carrying out, completing, and maintaining tire works contracted for, have not been correctly represenied in the general conditions, specifications, plans, drawings, and schedules, or some of them.” These . provisions afford a sufficient answer to, the argument founded o» the loose statement of clause 2 of the specification, that “the portions colored red and blue ’’ on the section show “ the amount of excavation and embankment required respectively. No contractor could possibly take. the blue figures to Indicate anything more than the perpendicular distance between the actual surface, whether sound or boggy, 'and the formation lev-1, nor employ these figures las data in his calculation of quantities, without reference to the character of the ground. Nor is the contract wholly silent respecting subsidence. Towards tiie end,of claus ■l3 of the specification. there is a stipulation in the following terms: —“ Where provision has been made for subsidence in .soft ground by raising the formation level, the rail level shall be raised thereon with the specified amount of ballast, and the gradients joined and made good in a proper and workmanlike manner, etc." It is plain from this that the contractor was expected, on portions of the line, to raise the embankments temporarily, even above the height shown by the red line on the longitudinal section, and to lay the permanent way on the top of these'raised portions, so as to allow tor subsidence taking place after the rails were laid, it is impossible to contend that the stipulation in question refers to ~ deflections on the red line, made with a view to meet the effect of subsidence: First, because on inspecting the section it is manifest that the red line indicates what are meant to be the permanent gra ients of the line, and that it is drawn quite without reference to th» grea er or less solidity of the ground ; secondly, because the. stipulation imports tint the raising the formation-level spoken of will temporarily cause a ,break in the gradients requiringdo be eased off. The provision for subsidence referred to 'can only mean provision made by order of the engin er during the execution of the works.’and not anything expressed in the contract, or delineated in the drawings. It appears, therefore, that the contractor was expected to provide for subsidence taking place even after the laying of the permanent way a fortiori, tor subsidence during the progress of the work. On the whole a close examination of the documents has left no doubt upon our minds that our answer to the question whether or not the contractor “was liable to perform at ids own cost any works rendered necessary by the suhsfie.ices refened to." must be in the affirmative, and that judgment must bo entered up for the Crown, with costs as agreed.

DAVIS V. LYON. This was an action by one trustee of the Wellington Loan Association, formed in 1841, as against a co-trustee, th s prayer of the declaration being, firstly, for a discovery of all the hooks and papers, &e., in the defendant’s posse-sion, or under his control; and secondly, for an account, and that the defendant might 'hereon be charged with interest on moneys remaining in his hands unioves’ed. 'Hie Court in a somewhat lengthy judgment (which we are compelled to hold over), ruled that the defendant should pay the balance of money in his hands into a bank, to be agreed upon by the trustees, to the credit of an account in the names of himself and co-trustee, each party to pay his own costs. TAMOANA V. ORMOND. This was a case in whicli an action had been brought, for the recovery of rent upon a lease to the defendant. The demurrer of the defendant was based upon the principal ground that the declaration disclosed only a joint cause of action in the plaintiff and others not joined as plaintiffs. The Court gave judgment for the defendant on his demurrer, at the same time stating that there was still the right to amend the declaration, on payment of costs. KIRIHIKI V. ORMOND. In this case, the demurrer was over-ruled, with costs.