COURT OF APPEAL.

New Zealand Times, Volume XXXIV, Issue 5685, 19 June 1879, Page 3

COURT OF APPEAL.

The following is the judgment of the Court in the case of Henderson v. the Napier Harbor Board :

“In this case the claim of the plaintiff is made up partly of the unpaid balance of the original contract price of £30,506, partly of a sum for extras. With respect to the former portion of the claim, the plaintiff has not obtained the written certificate of the engineer that the works have been satisfactorily completed as required by the 26th clause of tire contract. With respect to the claim for the extra works, the plaintiff is unable to produce any written orders for their execution, either of the engineer or of the Harbor Board, as required by the sth clause. In order to excuse non-production of the final certificate, the declaration alleges that the engineer, in refusing it, is acting in, collusion - with the Harbor Board and by its procurement. A case of virtual fraud is also set up, as regards the- extras, and it will be convenient fir.-T to examine this latter part of the plaintiff’s case. ■ “ The declaration, as amended at the trial, in effect alleges that after the execution of the contract the defendant wrongfully and improperly, and without the knowledge or consent of the plaintiff, altered the site of the western embankment, and thereby increased the cost of the works. The additions rendered necessary by this alteration are what ;it: is sought to charge as extras. On the part of the defendant it was not denied that an alteration had been made by their engineer, Mr. Weber, - on the site of the western embankment. It appears that the contract plan was founded upon the official survey of the town of Napier, which turned out to be incorrect. Mr. - Weber says :—‘ After discovering the error in the survey- of Napier, I was compelled to sharpen the curve so as to get a distance of 400 ft. 1 . We understand the witness to mean that, as the contract plan showed a width of 400 ft. between the eastern and weatecn moles, some connection was absolutely necessary to render the plan consistent with itself. The rectification of such a discrepancy would probably.. come, within the terms of the third condition. But it further appears that some actual change in the site of the western embankment was made in order to avoid the necessity of passing over sections on the Spit belonging to Mr. T. Williams. Evidence was adduced on behalf of the plaintiff that the alterations thus made in the plan of the works had greatly increased the cost and difficulty of construction.!; that no notice was given to the contractor of the altertions ; that the contractor, suspecting a change in the centre line of the western embankment, had more than once made inquiry on the sub-, ject of the engineer ; that the engineer on two occasions denied the existence of any alteration ; and, lastly, that the contractor remained ■in ignorance of the alterations until some time after the commencement of the works. These ■several points taken together would establish a case of gross misconduct against the engineer/ The evidence adduced to prove such a case is open Indeed to much comment, and was contradicted by evidence adduced on the part, of the defendant.. Nevertheless we are of opinion, that there was something to go to the jury on all these points. It is however well 'settled by. a series of decisions, of which ’ Clark :v,. Watson (34 Law Journal, C.F. 148) is one of the most recent, that in, order to disentitle the . employer to insist on the strict terms of such a contract as the present, it is essential to show that he has been acting in collusion with the engineer. On this point we are of opinion ,that the plaintiff made uo case at all. We are, indeed, ready to assume in his favor that the Harbor Board were cognisant of the deviation made to avoid the sections of Mr. Thos. Williams, but there was no evidence at all that they supposed, or. could suspect, that the quantity of work to be donewould.be increased thereby, or that the contractor was not. perfectly aware of the alteration, and assenting thereto. The first mention, of the matter between the contractor and the Board is contained in the letter of Mr. Davis, junior, dated 14th May, 1877. Mr. Davis begins with a remonstrance against the disallowance by the engineer of a part of the sum claimed by the contractor as a progress payment for work done in the previous month. He then proceeds to notice-the alteration of site in the following terms ;—‘ I would also beg to direct attention to the fact that the western embankment, as it now stands, is not the embankment T contracted for, but, a new one removed from the original site nearer to deep water, and containing more than'double the quantity of atone shown on. the original, plan and cross-sections upon; which my Tender was based. To the alterations alluded to I repeatedly called Mr. Weber’s attention, but hs invariably assured me there were none, until, on April 2nd, during a conversation and dispute with Mr. Weber about .measurements, he admitted that the site of the embankment was altered by the consent of the Board, to save buying soma sections, from Mr. T. Williams.’ ■ _/ “It is evident that Mr. Davis had at this time no thought of imputing to the Board any complicity with Mr, Weber in the alleged ■attempt to deceive the contraptor. The idea of such an imputation does not seem to have occurred, until a very lata ,stage in the proceedings, when it appeared that the plaintiff’s case would absolutely depend upon r establishing the fact of collusion. We are unable, to discover any evidence on the subject which could justify a finding in the plaintiff’s favor upon this part of his case. And we may remark in passing, as a highly significant fact, that the letter to the Board to which we have just referred was not written until six weeks after the day on which (as Mr. Davis alleges) Mr. Weber finally admitted the .to have been made. “We have now to consider the case made by the plaintiff with respect to" his claim to the balance of the contract price. I Mr. Weber’s letter to - the. defendant of 13th May, 1878, certainly tends to show’that'he was withholding his final certificate, not because the works were incomplete or were badly, executed—although, in fact, there were certain exceptions taken to the execution —but in order, to compel the contractor to forego his claim for extra payment ;in respect of the alteration in the site of the western embankment. We do hot . doubt that in this Mr. Weber was acting quite conscientiously ; hut such was not a legitimate use of his authority, and the Board would have been better advised to pay the balance properly due upon the contract, leaving the plaintiff to establish if he could his additional cla'm upon them. We think there was evidence to go to the jury that the final certificate was improperly withheld; but here again the plaintiff, failed to adduce, any evidence whatever that Mr.'.Weber acted as he ’ did, by procurement of I the Harbor Board, or in collusion with them. It is'on the contrary pretty clear, that Mr. .Weber'in the discharge of what he conceived to be his professional duty, was acting’quite ah independent part, “ For these reasons we are of opinion that a nonsuit must be entered pursuant ito the leave reserved for the purpose by the learned Judge who presided at the trial. In thus setting aside the verdict we are acting in accordance with the opinion ■of that learned Judge; who is not satisfied with the finding of the jury on the cardinal question of collusion. The jury) themselves appear to have affirmed with difficulty and reluctance the charge'of • fraud made against the Harbor Board. ; They proposed at first ■to absolve: the defendants from moral fraud but upon it being suggested to them that such a qualification was lincon-’ sistent with the existence of collusion, and consequently with a verdict for the plaintiff, they withdrew the qualification, "and returned unqualified findings in the affirmative upon the issues imputing collusion. ’ ; “ We have dealt with the plaintiff’s claim for extras as limited to the stone in excess of the proper contract quantity, which is alleged to have been employed in’the construction of the western embankment. But in addition to the siim ot £2563 4a.' for extra stone, the jury allowed the plaintiff the sums of £7O 4s. for spare rfahble, £192 for driving 32 piles, and £56 for iron shoes to the same. No argument was addressed to us in favor of the right of the plaintiff to retain his verdict for any of these smaller sums ; nor was our attention called to any evidence that any one of these claims is chargeable as an extra.' The rubble seems to have been part of the 1290 cubic yards which the' contractor was required to keep stacked on each side of the water [see specification], which certainly cannot be charged for as an extra; The 32'piles and shoes were supplied under orders from the engineer to replace defective piles, and not in addition to the proper contract number. Even supposing that we chuld assume that these items,’ or'any of them, had been ordered in writing as’ extras :by the engineer, the plaintiff’s case would still be defective for want of a written order from the Board, as required by the sch clause of the conditions. “ The rule is made absolute, with costs.”