Patea R.M. Court.

Patea Mail, 30 December 1880, Page 2

Patea R.M. Court.

Tuesday, before Mr C. A. Wray. CONTRACT for RAFTING TIMBER William Burke sued Captain Bendalb director of insurance salvage operations in connection with the stranded schooner Jane Anderson, to recover £3O as the amount of damages sustained by loss of a contract for rafting timber from the schooner at the beads to high water mark in the harbor. Mr Ward appeared for plaintiff, Mr Hamerton for defendant. The plaintiff’s case was that he had been engaged by Captain Bendall to raft the cargo of timber from the stranded schooner to the harbor, at ninepence per hundred feet ; that after landing the first raft he could not get any receipt for delivery, there being a dispute with the consignees, who refused to accept delivery ; and that, lie was thereby prevented from completing theeontract. Heclaimed £3O as damages. For the defence, Captain Bendall deposed : I am conducting salvage operations on beliaT of the Associated Underwrites. As to the small timber, 11,000 foot, it was not insured, and was consigned to Mr Cowern, auctioneer. I gave a note to Burke for the captain of the schooner, asking him to let this man bring up the small limber, I believe he did so, I engaged this man and a partner, who are mates in a small fishing boat, to bring up 52,000 feet of the insured timber, and told him to bring the smaller pieces first, as there was a danger of their being washed away, lie said he could bring them in his boat. I went to Downes and Proctor to ask them to take delivery. They said they could not do so until communicating at Dunedin with the parties who sold them the limber. The plaintiff' saw me, and said he had no more dogs or gear to go on with, as he conid not get delivery taken : and as it was a humbugging job he would do no more. I was anxious they should go on with the rafting. That was Saturday, and on the Monday I saw they were not working, 1 then made other arrangements, at the same price. The raft these men bought up was insecurely fastened, and broke away in a freshet. It cost about £lO to raft it back from Whenuakura, where it had drifted. I had no claim made on me before these proceedings commenced. I did not at any time prevent them from completing this contract, nor did I request them not to go on. Cross-examined : This raft had been moored a week when it broke loose Other rafts which were moored did not break loose. I saw that the raft was moored to a peg. I say it was insecurely moored because it broke away. It was no fault of Burke’s that the timber was not received. He could have made the rafts secure, and gone on with his work. I told him to go on working, and that the delivery need imt prevent him from bringing up the other timber. The Bench : Was not the responsibility taken off the plaintiff’s shoulder when he had made his raft fast, and remained then with the consignees ? Defendant : I don’t see that they should be responsible for a raft going adrift because it was insecurely fastened.

The Bench ; As a matter of fact the responsibility of the plaintiff ceased when he made his raft fast, and it should have been taken over and a receipt given ? Defendant: Yes.

Captain Eekhoff deposed : lam master of the schooner Jane Anderson, which was stranded with this timber. I was with Captain Btndall on the Saturday when the plaintiff complained that Downes and Proctor would not take delivery at high water mark, and that if he was to haul it on the bank that would be a separate contract altogether, but that in the meantime he should secure the raft and go for another one. The plaintiff said he was not going to be humbugged in this way. I understood on the Monday he had thrown up the contract. On the Tuesday he told me himself that he was done with the job. He was to have started on that Monday with others in preparing to launch the schooner, but the weather not being favorable they did not begin till Thursday. The plaintiff commenced with the launching on the Thursday. ■ Mr Hamerton, for the defence, contended that the plaintiff had not made out the slightest damage, and had not shown in detail how his alleged loss had been sustained The plaintiff had withdrawn from the contract of his own accord, and had engaged on the very next working day to take a different employment. Having been earning 9s a day on that work, where was his loss incurred ? Costs must be asked for in the event of a verdict being given for defendant. Mr Ward, for the plaintiff, contended that the plaintiff was entitled to a receipt for the timber when rafted to high-water mark, ami as he could not get delivery taken he could not carry out his contr;*L The full claim of £3O hail not been provec,' he must admit, but damages had been sustained, and the plaintiff was entitled to reasonable compensation. The Bench ; The evidence is very conflicting. The plaintiff positively swears that the defendant did not teli him to go on rafting, whereas thedefendantpositively swears he did so. A great deal rests on the fact whether there was a breach of contract in the first place on the part of the plaintiff or of defendant. The defendant’s evidence on the point is corroborated in a great measure by Captain Eekhoff. The next question is whether the plaintiff is entitled to recover for the work performed by way of quantum meruit. The principle laid down is that in a special contract which remains unperformed, the claimant cannot recover a part for what is done, hut must remain til! the whole is completed. The Court is satisfied that the defendant did tell the plaintiff that he should go on rafting ; that when the plaintiff moored his raft and made it fast, all responsibility was off his shoulders, and that all he had to do then was to go on raf ting. Instead of that, he chose to knock off the work, and consequently did not complete his contract. The value of the one raft, at 9d per 100 feet, is about £2, but the defendant does not seem to have derived any benefit from ibis, but rather tbc contrary, as the raft broke away and bad to be recovered. Judgment for defendant, with costs and counsel’s feo of two guineas. DISPUTED SUB-CONTB.ACT-Henry Mercer v. Oliver Robinson was an action to recover balance of progress payments in arrear for work done under a sub-contract for earthwork, total value £9O. 11. Mercer deposed : I was a sub-con-tractor under the defendant, and on May 19th 1 engaged to shift a hill for £9O, with 75 per cent progress payment every fortnight, and the balance on completion. 1 took horses, drays, men, and tools, and received £5 at the end of tint first fortnight : and he said he could not pay in full then, but would do so at the next pay-day. On that day he made his draw, and went away several days. When ho camo back he said he had no money. He promised to pay up on the following pay-day, I worked on till three days before the next pay-day. and wo all knocked off through the wet. lie drew this money again, and Went away to Axup’s sale and bought a pair of horses and a spring cart. lie then said he had no money. I told him I could not go on unless he paid the 75 per cent, agreed on, as the men were pressing me. Alex. Davidson, farmer, said the plaintiff had employed 3 horses, 2 drays, and 4 men besides himself. Was engaged on the next cutting, and heard no complaint as to Mercer’s work. Mr Ward, for the defence, submitted that no evidence was produced to show any other agreement than to shift a certain hill for £9O, and it had not been completed, Mr Hamerton, for the plaintiff, contended that the defendant had accepted the benefit of the labor so far as done, and the plaintiff

was entitl'd to claim on a quantum meruit. The Court ruled that lie could do so. The defendant then gave his version of the agreement. He said the plaintiff was to receive 75 per cent, in progress payinentwhenever received from Government. Part payment was to he in tucker, which amounted to £l6 3s 4d, and I paid him £5 cash. These sums are equal to all the work In- did, 800 yards out of a total of 4,(00 yards. Thu pay-im-nfs I received from Government were very irregular, I told the plaintiff I had given him fully 75 per cent, of all the work he had done. 1 take the amount at 800 yards on the estimate of the Resident Engineer. I gave the plaintiff a week’s notice to complete the work, hut he did not go on after stopping for the wet weather. Mr Hunter, Resident Engineer, deposed that on September 15th the quantity of eaith removed at the place referred to was 800 yards. The Bench decided that the plaintiff had received value in 75 for the 800 yards of earth removed. It was quite- open to the plaintiff to have gone on with his contract. Verdict for defendant, with costs £3 Ss. DISPUTED COAL CONTRACT. Eyton an-1 Pringle, -o. O’Sullivan, proprietor of Kakaramea Hotel, was a claim for the value of six tons of coal, at £2 los> per ton. Mr Hanu-rtou appeared for plaintiff, Mr Ward for defendant. Mr Hamcrton said this was a claim under a contract by which Messrs Eyton and Pringle, commission agents, agreed to supply in October last six tons of coal to arrive hy ship, and the verbal agreement was confirmed by letter. Defendant refused eventually to accept delivery. Mr Pringle gave evidence of the agreement, the price to be £*2 15s pci ton, delivered at tbc wharf. The defendant refused to take delivery, and declined to pay. It was not agreed that they were to be delivered to him on a particular day They were sold to arrive. Cross-examined by Mr Ward : The date of the agreement was October 6th. The defendant took five tons of coals from the same ship. He refused to accept delivery of our coals. Mr O’Sullivan, defendant, said : I saw Mr Pringle one day, and I asked if any coals wore to be got. He said some coals were consigned to bis firm, and were expected hourly. I said I would take six tons, at the price I had paid before, £2 10s.) but would give £2 15s. if I could get. them at once. He said they were expected to arrive hourly. Then I found out that the coals were not consigned to Eyton and Pringle. I sent down a team for coals, and sent 30 bags lot them. I paid a pound for the team to come lor the coals, and the coals had not arrived. He named the time for delivery . He said “ hourly.” They were not in for nine days afterwards, Mr Pringle told me, when I asked him for the bags, that I could have tln-m. That was about six days before the ship came in. Cross-examined : 1 did buy six tons out of the same cargo from Cuadwick Bros. I rode into town purposely to countermand the order because the coals bad not arrived, and because Mr Pringle bad told mo the coals were consigned to them when X found they were Chadwick’s coals. J. Chadwick deposed : About the 6 hj October I received an order from Eyton and Pringle for certain coals. Some few days afterwards I wont out for orders and called at Mr O’Sullivan’s. I saw Mr Pringle afterwards, and he asked naif I would take O’Sullivan’s order ami allow him the profit. 1 said I did not wish to hold him bound to take the six tons from me, as there had been a misunderstanding'. As to allowing him the profits, I told him ho could either take the coals or leave them. He said if I gave him 2s 6d a ton I might supply the order. I consented at first, but afterwards declined. Mr Ward, for the defence, contended that the so-colled contract was a mere offer. The Bench reserved decision for a week, on the question whether a written memorandum of order is equivalent to a contract in the absence of an acceptance. The Court adjourned.