DISTRICT COURT.

New Zealand Times, Volume XXXIV, Issue 5657, 17 May 1879, Page 3

DISTRICT COURT.

Friday, May 16. (Before his Honor Judge Hansford.) T. K. JIACDONALD V. DEERE.

The jury were—.l. L. Jenness (foreman), North, Besel, and Callow. Mr. Ollivier appeared for the plaintiffs, and Mr. Bell for the defendant, Mr. Ollivier, in his opening remarks, said that the action was brought by Messrs. T, K. Macdonald and Co. against Mr. George A. Beero, claiming £2OO as damages ou the that the defendant, who had represented himself a civil engineer, had agreed to perform some engineering work for the plaintiff on that part of the Terrace known as Hunter’s Acres. The defendant prepared plans and specifications for cutting up the acres into sections, and accepted the tender of Mr. Joseph Jay to do the work. The contractor soon after commencing his work found out that the work could not be proceeded with on account of a retaining wall not being 'provided for in the tender so as to prevent the clay from the high portions of the land rolling down to the lower, and into Mr. Hunter’s private garden. The wall had to be built, and a delay of a month took place. The defendant did not carry out the plans in other respects, and the contract was not finished in the time agieed upon. The result was that the plaintiffs could not put the land up for auction as soon as they had intended, and had also to pay interest on a large sum of money. Mr. J. Jay, thu contractor for the work, gave evidence in support of the faultiuess of the plans and specifications. He also deposed that he had, as an “ extra,” to erect a retaining wall, at a cost of £l6O, to keep the earth from slipping into Mr. Hunter’s garden, owing to the faultiness of the plans and specifications. For this wall plaintiffs had to pay. Mr. Jay said that he had been delayed a month in the execution of his contract owing to the fact that the retaining wall had not been provided for in the specifications. Mr. J. 11. Davis, 0.E., who had sat as an arbitrator in the dispute between Messrs. Macdonald and Company and the contractor, gave evidence as to the faultiness of the specifications. He said that the contract could not possibly have been carried out wirhout the retaining wall, and this wall was not provided for in the specifications ; this indicated want of care on the part of Mr. Beere ; also, that the retaining wail was such an “ extra ” as would relieve the contractor from penalties in regard to non-completion of his contract within the specified time.

Mr, N. Marchant, C.E., gave corroborative evidence.

Mr. Macdonald gave evidence that Mr. Beere, whilst discussing the form of tender, had said nothing about the retaining wall, and also that the work, which was to be completed in December, 1878, was not finished until the latter end of February, and had so prevented the sale taking place "earlier. He was sure if the land had been sold a mouth earlier it would have fetched at least 20 per cent, more value ; besides the firm had to pay interest on £IO,OOO, the amount paid for the acres. Mr. Bell applied for a nonsuit on a technical ground. - The nonsuit was refused.

Geo. A. Beere, the defendant, gave evidence that whilst the form of tender was being discussed he had mentioned to the plaintiffs the want of the retaining wall, or that the grounds below it should have to be included in the section, and that Mr. Macdonald told him to hurry ou with the work and he would see about the wall afterwards. After counsel ou each side had addressed the jury, his Honor briefly summed up. The jury retired at 5.30, After an hour’s deliberation they returned, and stated that three had agreed to a verdict. Counsel agreed to take this verdict as it the whole had agreed.

The jury found a verdict for the defendant, Mr. Oliivier obtained leave for a new trial.