DISTRICT COURT.

Patea Mail, 19 May 1881, Page 3

DISTRICT COURT.

Tuesday, before Judge Hardcastle. M‘LEAN v. COUNTY COUNCIL. John M‘Lean, Wellington, contraetor, sued the Patea County on two claims Imbalance of contracts on the Mountain road. He claimed £1566 5s on contract and extras for certain sections of road, admitting there had been payments on account, but claiming on the whole and leaving the Council to prove set-off. The Council’s defence to this was a payment to the extent of £875, and a set-off showing cost of completing the plaintiff’s incomplete contract, and a penalty for overtime.

He also claimed £SOO on a second contract for a farther portion of road. The Council’s defence to this was a total denial of contract and of indebtedness. In this second claim, the plaintiff had a contract for certain sections of road up to No. 14, but as to No.-15 the contract was never signed. Plaintiff alleged that this w-as a vert(^instruction, that he did the work, and entitled to claim payment on th^j C *fy6al contract. The Council denied taatfhe was instructed to do the work ; they also contest its value, and contend that in any case he did not adhere to specification. Mr Stafford, Wellington, was counsel for ,'plaintiff, Mr Hamerton appearing for the County Council. Mr Stafford stated the plaintiff’s two cases to the jury. To have brought these actions in the Supreme Court would have been much more expensive to both sides. It was arranged that the cases should be tried in this court, the plaintiff consenting to that although he would have to come with his witnesses into the centre of the district where ratepayers are naturally interested in the result. The plaintiff M‘Lean tendered for contracts numbered from 7 to 11 ; he did the work, and got paid in full. He also entered into a contract for sections 12, 13, and 14, He also made a tender for part of No 15, and afterwards engaged to do the whole of No. 15, the first portion being done as per contract for £162, and the remainder finished at per chain and charged at a price he had verbally tendered for, namely £SOO. The Council paid £162 for part of of section 15, but i-efused to pay for the additional work which plaintiff was instructed to do in continuation of that contract. The Council had paid the £162 on section 15 in full satisfaction as they said, but the money was accepted only as a payment on account, and he now claimed the difference, £SOO. He therefore claimed for extras on the first contract, being sections 12, 13, and 14; and he claimed £SOO for that portion of section 15 which was done under a verbal contract at a price. Mr Stafford then called evidence as follows :

John M’Lean, contractor, said : I am plaintiff in these cases. I sent in a tender for 7, 8, 9, 10, and 11 contracts for £1443. These contracts were finished and paid for. I afterwards tendered for 12 to 15. The Chairman of the Council said all the money was not received from Government, and asked me to divide the whole contract into parts. I did so. I tendered for Nos. 12, 13, 14, and 15 for £1232. The Council, after delay, accepted 12, 13, and 14, but not for 15, that being held over for arrangement. I had tendered to do 22 chains of No 15 for £162, but not signed for it. At the end of 22 chains I was to stop till an expected deviation for the railway was settled by the Government officers. If the Council got the money from Government, I was to get the lump sum in my tender', and it was immaterial how I divided the sum among sections of the contract. I expected to get £162 for the 12 chains, and I expected to get £SOO more for the remaining 68 chains in No 15 section.

Judge; We have heard nothing about £SOO in the contracts mentioned. You say you expected to get it. Was that in your contract or not ? Plauhiff: I mean that I was to get it if th(i work was done, and the work was to be done if the Council got the money from Government.

Mr Stafford : That is what the plaintiff means, but that is not what I mean at all. Plaintiff ; I got a letter from the Council to go on with the whole contractThe 22 chains were to be done completely > but the 68 chains had to be only cleared to make road passable, and ease the grades, all this work being included in the £162. The Council’s letter to plaintiff was read, dated June 7,’79, informing plaintiff that his tender for contract No 15 for £162 was accepted, and that he should come and sign the same. It appeared he did

not sign, but that he did certain work under it. Mr Hame’-tou : The specification shows what he had to do. Judge : The specification is evidence of what he had to do. Mr Stafford ; I propose to show what we had to do for the £162. Ido not rely on the specification. ‘ Judge : You say then you may show that he was to do A, B, and 0 pieces of work, but that he was to receive £162 for doing only A and B. Mr Stafford: Your Honor’s view appears to be that lam confined to the specifications. Judge : I don’t say you are confined to them. You cannot vary or alter them, but you can supplement them. Mr Stafford : That is what I propose to do by the plaintiff’s evidence. There is no contract, but it is a fact that we have received £162 for doing certain work ; and I want to show that this was not the work for which we claim £SOO. Judge : If you wish to show that any one of the terms of the written contract has been varied or set aside, or that a parallel term has been added,that will do. The plaintiff can supplement his writing, but cannot vary it. Mr Stafford : I do not rely on the gross contract. Mr Hamerton : My contention is that he had no contract for No 15 section, that we gave him notice not to do the work, and that in going on the ground at all he was a trespasser. Judge : I am still of opinion that you cannot contradict this written tender. Mr Stafford : I contend that the tender was not to do what was in the plan and specification. Judge : Although the specification says it was. Mr Stafford : Yes, although that says it was. No contract was signed for No 15. Judge ; I am very doubtful whether you are entitled to bring that evidence in, but I will not stop you.

Plaintiff continued his evidence : I saw several Councillors in the Council office, and they asked me to divide the tender so that they could accept it in sections as far as they had money in hand, namely £I4OO. I took a rough valuation of each section, and as I was to get the whole of it I was not particular how it went. They asked what I could complete No 15 for. I said £4OO without culverts or £SOO with culverts. The Councillors said they would give me that, and I was to complete that section if they got the money from Government, whether the straight line or the deviation. I went with them to the Telegraph-office, and Mr Bridge signed a telegram to Government asking for £SOO, as the Council had accepted contracts for that amount in excess of the sum alloted, I received a letter after, saying I was not to go on with No 15. Nearly twelve months elapsed, and in June ’79, Messrs Sherwood, Winchcombe, and Partridge came on to the work, and said they were going to make the straight line. Mr Sherwood asked if I was going to do No. 15, or would they have to call tenders for it. I said I supposed I must do it, as the Council held my deposit and a lot of money, and they could compel me to do it. He said “ All right,” and I understood they were to report to the Council. I went on with No 15 section, and finished it, and the Foreman of Works was there all the time. The Clerk of the Council informed me the Council had received notice that I was taking the wrong track. He did not give me notice not to go on. I told the Government Engineer I was acting under the Council’s orders. As to the second case, on the £ISOO contract first executed, I claim £496 5s for extras, including extra culverts, clearing trees off the track after it was made, and deepening ditches in excess of specification ; these works being done under direction of the Foreman of Works. As to the 68 chains, the last portion of No 15 section, if there had been no contract price I should have wanted £6 a chain without the culverts, making 408, and £75 for the three culverts. Cross-examined by Mr Hamerton : I tendered for all the sections in June ’7B according to plans and specifications, and I re-dated my contract in December for sections 12, 13, 14, and for 15 as far as it went. What authority had you for entering on the work of section 15 ? Plaintiff : A letter from the Council. Letter read was dated June 7, and said : « I am directed to inform you that your tender for the sum of £162 for No 15 contract, Mountain-road, has been accepted by the County Council, and to request you to attend at this office to sign the bond within 7 days from this date.”

Cross-examined : I went on witli that work about twelve months after, in consequence of Mr Sherwood, Chairman of Works Committee, asking me if I would take up the contract without calling fresh tenders. My tender was £62 for No 15, but in hastily dividing the contracts in the Council office I did not make up the gross tender within £IOO, and I then added the £IOO on to No 15, as it did not matter on which section the £IOO fell so long as I got the whole work. My only contract for No 15 was a verbal one made with Councillors in the Council office, June 17th, ’7B. If the Council could get the money, I was to complete No 15 section. Who told you to go differently from the specification ? Plaintiff : The understanding was that the 68 chains were to be done like the rest. But who told yon so ? Plaintiff : The Foreman of Works was there all the time.

But the specification says the 68 chains were to be grubbed only. Was it Mr Sherwood who told you to go on with No. 15 contract ? Plaintiff : Yes, he spoke in the way I have said. Did he alter the specification ? Plaintiff: No, I met him somewhere on the public road. I have no written record of it. When I finished that contract, I was out of pocket, because it was wet all the time. Were you asked to sign a contract for No. 15? Plaintiff : The Council wanted me to sign for the whole length of No. 15 for £162, but I refused to sign because my tender was for 22 chains at £162. I said I would sign for the whole if the Council would add £SOO. I was then half way through the work. Did you receive any certificate for 12, 13, 14, and 16 ?

Plaintiff : No, but the certificate was handed to the Council by the Foreman of Works. As to the extras I have charged, I did not receive any certificate for 12,13, and 14, but I was told all certificates had to be given to the Council. I went to the County Council for a settlement, but the Foreman of Works was drunk, and the Council could not get certificate from him. Mr Dale and X could do nothing with the Foreman, I then got my monkey up. My foreman and Mr Rogers went over the work. At the next Council I heard that Rogers had made a report which required £B4 worth of work to finish contracts 9, 10, 11, and 14 ; but I had been paid for the first three some time before. The Court adjourned. WEDNESDAY. The Court opened this morning at ten o’clock. Mr Milroy, a juror, being absent, the Court fined’ him forty shillings, and adjourned for an hour. At eleven the Judge took his seat. Mr Milroy explained that he thought the time of opening was half-past ten, because it was so on the first day. The Judge said the Court was adjourned to ten o’clock, and the fine could not be remitted. Plaintiff’s cross-examination was continued a short time. Re-examined by Mr Stafford: While making the road, a deal of traffic was going over the finished sections, and I threatened to shut them up till they were taken over. The Foreman of Works told me not to stop the traffic, and he then took over each section as I finished it. I had to do repairs caused by the traffic. The weather was rainy, and the soil being a soft loamy clay, it would sink 1£ inches in the foot, so that at the end of the work a piece of filling would not appear to be at the same level as in the plan and as first made. The road was so cut up that when I left it a horse could not be taken through without going up to the belly in sludge. The Council now claim £433 for penalties but I never heard of that claim till my solicitor demanded a settlement. The first time Rogers went over the ground with me after the work was finished, he took all the work off ray hands. Rogers and my foreman went over the ground afterwards, and gave me £6 10s more than I had claimed, as I had missed a culvert. A. McAlister, foreman to plaintiff, deposed that he had charge of the work on the Mountain-road. He gave evidence as to extra work being ordered, such as clearing a bye-track for coach before the road was formed. Could not be positive whether the Foreman of Works ordered all these extras, but he ordered most of them, and M'Lean ordered witness to do others. The deviations from plan to lighten the formation were ordered by Mr M'Lean, but Mr Rogers saw them and did not object in any way. Witness measured the extras with Rogers, but did not come to any definite statement with him. Rogers did

complain that one cutting had not enough taken out.

Cross-examined by Mr Hamerton ; Rogers and I prepared a statement of what had been done and what had to be done. All the extras were on sections 12, 13, and 14. Mr Rogers gave me a general instruction to keep a track clear for the coach, and extras had to be done for this. W. Dale, present Chairman of the County Council, said ; I remember mentioning to the Council in June,’79, certain reports about the contracts on the Moun-tain-road. A committee was appointed to inquire, and a report was made by r Councillors M‘Guire and Partridge, but I believe it was verbal. They went up some time after the report, but the logs which had been stated as being visible were then covered up, and the report was not unfavorable for that reason. This closed the plaintiff’s case. THE DEFENCE. Mr Hamerton stated the case for the defence. He would call witnesses to prove that the Council never promised nor led the plaintiff to believe that he was to have £SOO for completing section 15 ; that he never did, under the Council’s direction or supervision, any work for £6OO ; that he was repeatedly cautioned not to go on with that work ; that the plaintiff was to do all the work specified in contract 15 for £162 ; that any additional work he may have done in that section was not authorised, and was wasted labor because the Government made the intended deviation of road. It would be shown also that plaintiff entered on the work of section 15 before tenders were called ; that he never signed contract 15, for which he claims £SOO, and that there was no contract. The second claim was a matter of complicated account, in which extras were claimed on one side and set-offs made on the other. The following evidence was called :

W. Dale, called for the defence, said : The plaintiff tendered in 1878 for certain contracts. His tender was informal because it named a lump sum for all the contracts, and there was a foot-note referring to a condition different from the plans and specifications. The Clerk was instructed to see the plaintiff and request him to divide his tender showing a separate sura for each contract. M‘Lean came in with the Clerk, and had already divided the figures in his pocket book. We accepted his tenders for contracts 7 to 11, but did not accept other tenders because we had not received money for them from Government, It was then decided to send the following telegram to the Government : “ Council have accepted tenders Moun-tain-road for £IOO in excess of £3OOO alloted to this County. Tender in to complete with contingencies within 90 chains of Stratford for £1370. Chief Surveyor proposes deviation remainder distance; estimated cost £SOO. Can Council accept and complete formation to boundary of County ?” The Council, in sending that, did not then promise £SOO to M‘Lean. The Council called for fresh tenders for contracts 12 to 15 in Dec., ’7B. Plaintiff had tendered for the same in June; his tender was re-dated in December in M'Lean’s handwriting, and we accepted his tender for 12, 13, and 14. Since calling for tenders in June the Council had received farther funds, and therefore called for fresh tenders. M‘Lean wrote to the Council in December after the advertisement appeared, claiming as a right to have those tenders given to him because the Council held his deposit since he first tendered. The Council refused his version, and that is why he re-signed and re-dated his former tender to make it acceptable in December. Plaintiff did riot tell the Committee that he would complete section 15 for £SOO. We did not go with him to the Telegraph office. M‘Lean’s tender was to complete section 15 for £162. The Foreman of Works told the Council the proposed deviation would cost about £IOO. We reckoned that £262 would be wanted from Government for completing these contracts, that the deviation would cost £IOO if carried out, and I suggested the Council should ask for £SOO to cover contingencies. It was never stated that the £SOO was for M'Lean. I proposed in Council the acceptance of MfLean’s tender for section 16, for £162, subject to specifications in the usual way. No other contract has been authorised for section 15We received a letter from M’Lean stating he bad entered on the work of section 15, and this was a fortnight before we accepted his contract. Certificates of completion of contracts 12 to 15 never came before the Council. I have since seen the road, which was in a very bad state. Stumps and roots were sticking out in every direction along the formation of

sections 12, 13, 14, and 15. That was after the winter rains. His work was quite differently done as compared with the work of other contractors along that line. The formation was not the proper width, according to my stepping. The Council appointed Mr Fraser to inspect contracts 12, 13, and 14. This was long after M’Lean’s contract time expired. Notice was given to M’Lean to complete the work. M’Lean agreed in the Council room to send his foreman with our Foreman of Works, and to leave the final settlement of extras to those two. The Foreman of Works presented a report to the Council, and I was appointed to go through the statement of extras to try and reconcile Rogers and M’Lean ; but M’Lean claimed more than Rogers would allow. Cross-examined by Mr Stafford : Statements were made to the Council by me and other members, and by Mr Tregear, surveyor, about the plaintiff's contracts not being properly carried out. A committee of two made a report, but it was not adopted, as the Council were not satisfied. They had not seen what Mr Tregear had seen. Mr Tregear had seen the logs in process of being covered up. A resolution was passed in June ’79 that M’Lean be asked what he would charge, for doing the deviation in section 15. Mr Stafford asked questions on this to show the Council were then under some obligation to the plaintiff. Judge: You are sueing under a contract which you say was made in June 1878 to complete section 15 for £SOO. Now you are referring to a resolution of the Council in the following year asking M’Lean what he will do that work for. If you had a contract for a specific sum for specific work in ’7B, why do you want to show that the Council at a later date asked what he would do that particular work for ? Mr Stafford: Well, I will not press that. Witness continued : M’Lean wrote offering to submit the case to the arbitration of Mr Blackett. The Court adjourned till Thursday. There are eight witnesses yet to call for the defence.