DISTRICT COURT.

Patea Mail, 21 May 1881, Page 3

DISTRICT COURT.

Thursday, before Judge Hardcastle. M’LEAN v. COUNTY COUNCIL. The two actions of John M’Lean, contractor, to recover £1566 5s and £SOO in two sums from the Patea County Council, as balance of two contracts on the Moun-tain-road, were continued, having commenced on Tuesday. The Council plead in defence payments amounting to £875, also penalties and expenses ; and they deny any contract for £SOO. The special jury were Messrs D. Contts (foreman), J. Milroy, J. Gibson, and R. M. Pringle. Mr Stafford was solicitor for plaintiff, Mr Hamerton for the County Council. The plaintiff’s case had been concluded, and several witnesses for the defence had given evidence. The following additional evidence was now given : W. C. Wright, Foreman of Works to the Council in June ’7B, said : I prepared the specification for contract 15, in which 22 chains were to bo completely formed, and 68 chains were to be cleared only for a track. In June ’7B, the money was not sufficient to complete the whole road, and M’Leau told me he hadtendered for contract 15 for £162. This was after I had shown him the plans and specification, and after I had explained them to him. My estimate for the work to be done was £l5O, and his tender was £l2 in excess of my estimate. My estimate for work was £320 for No. 12, £265 for 13, £230 for 14, and £l5O for 15. In going over the road after I left the Council, and after M’Lean’s contracts were finished, I saw several stumps in the road. My horse nearly fell over a stump near the middle of the road.

Cross-examined by Mr Stafford : Only one specification was drawn for each contract. Looking now at the specification for contract 15, I think there is an error. The 68 chains were to be cleared »>nly, and not to be stumped and formed. I told M’Lean distinctly that there was to be merely a track formed through the 68 chains, and that lie was to go round the stumps, M’Lean asked me if £1 a chain would do that work. It would have been worth much more to complete the work according to the specification than my estimate. It matters not what was written, I told him distinctly what he had to do. I told other contractors the same. £162 would be a fair price for doing the work according to my verbal instruction to M’Lean. If he had had to do No. 16 in accordance with specification, a considerable sum beyond that would be required. The work was executed after I left the employ of the Council. As to the stumps in the road, after the work was done, I would not have taken the work over in that state if I had been superintending the work. Witness was asked as to the cost of constructing culverts and other extras charged by plaintiff. In making a road, a contractor has to let traffic pass and to make good any damage. Mr Stafford .* Do you mean to tell me that if a coach passed over the work before it was finished, any damage done by the coach has to be made good by the contractor ? Witness : There is an Act for that. Mr Stafford : What Act ?

Witness: A general Act by which a contractor is bound to make passable a road to allow the public to travel. Mr Stafford : If you will take the law from me, it is not so. Witness : I have an idea that it is so. Mr Stafford : You had better keep the idea. Is a contractor to make good a road after a coach has passed over it ? Witness : He is liable for all damage during the work. Re-examined by Mr Hamerton : I never told M’Lean to form the 68 chains as now done. My only instruction was to clear a track. If M’Lean said £5 would have done all the clearing on the 68 chains, that cannot be so. I told him the clearing could be done for about £1 a chain. Mr Hursthouse wrote a letter to the Council about deviating the road, and I was thereon instructed by the Chairman, Mr Bridge, not to spend any more money on the 68 chains beyond making a track. J. Black, Clerk to County Council, said : Mr M’Lean’s tender in June for contracts 7 to 15 was not accepted. I was sent to ask M’Lean to prepare a fresh tender, that being informal. I requested him to divide his gross tender into separate amounts. He did so in the Albion Hotel. He returned with me to the Council office, and there drew out a second tender showing separate amounts for each section. That tender was accepted up to Noll, but not for

remainder of sections. Those contracts were completed, and were paid for on the Foreman’s certificates. In December following tenders had been called for sections 12 to 15. Mr M’Lean sent a letter protesting against fresh tenders being called, as the Council had held his deposit on these sections since his first tender in June. The Council thereupon accepted his original tender (which had been held over) for sections 12, 13, and 14. There was some delay in his signing the tender, and the Council threatened to forfeit his deposit unless sighed within one week. It was 'signed at Hawera. He was notified at a later date to attend and sign contract 15, but he did not sign it. I was present at a meeting of Council committee when M’Lean said £IOO would do the deviation in section 16. M’Lean did not ask £6OO for what he was to do on section 15, and that sum was never promised him. No certificate of the completion of section 15 ever reached me, and I can only pay on the Foreman’s certificate. I received a letter in which M’Lean claimed £SOO for section 15, and I believe he was then working on that section, although he had not signed the contract. He refused to sign it, and demanded a return of his deposit. The Foreman of Works was never drunk in the Council Chamber or in my room. M’Lean’s statement on that is point not correct. Cross-examined : I heard that M’Lean was going on with contract 15 before the letter was sent, requiring him to attend and sign the contract for that section. By the Judge : The Council applied to Government for £SOO, but never got it.

By a Juror : M’Lean requested a copy of the telegram, as he said he was going to Wellington, and having a good deal of influence with the he would urge the sending of the money. G. S, Bridge said : 1 was Chairman of the Council in ’7B. A meeting of Committee was held June 18, 1878, when M’Lean's tenders up to section 11 were accepted. He had tendered for all the sections in a lump sum, and it was rejected as informal for that reason, and also because it contained the condition “Weather permitting,” which was not in our specification. There is the same condition in the tender we accepted, but that was a contract up to 11, and does not affect this action. In sending a telegram, asking for £SOO, I made no promise that M’Lean was to have this money. I never authorised any work on section 15. Cross-examined : M’Lean was asked in June ’7B to allow his tender to stand over for 12, 13, and 14, for which we had not money in hand. As to 15, there was a question of deviation. M’Lean consented to his tender standing over. 6. F. Sherwood, a member of the Council in ’7B, gave similar evidence as to M’Lean ? s tenders and contracts. A committee considered that £SOO would be barely sufficient to do section 15 and other contingencies. Among these was day labor then employed in maintaining the finished sections on the Mountain-road during winter, and in keeping a coach track passable. I made no promise to M’Lean that he was to have the £SOO for finishing section 15. It was agreed at the same committee meeting that sections 12, 13, and 14 should be held over for want of funds. I then told M’Lean that the Committee would try to get the money from Government to complete the remaining sections he had tendered for, but that the committee were in no way bound to accept his tenders. I have never told him that his tender for contract 16 was accepted. I and two other Councillors went up the Mountain-road. M’Lean asked, “What are you going to do about 15 ?” I answered “ We cannot say ; we shall report to the Council.” That is all that passed, the other Councillors saying nothing. We reported to the Council. I did not ask him if he was going to do contract 15 : I was always particularly reticent with Mr M’Lean on matters of business. He said nothing to lead us to suppose he would go on with section 15. His work on sections 12, 13, and 14 was then so much behind that we had to report to that effect to the Council.

Cross-examined : We reported that the deviation was not required. I believe about £IOOO has been since expended on the deviation, which was practically thrown away. The Council were not aware, while I was in it, that M’Lean was going on with section 15. None of the committee were aware that a copy of the telegram to Government was given to M’Lean.

By Jury : We gave general instruction to our Foreman of Works to keep the road open for the coach ; that is the finished sections of road. The Foreman had no instruction from the committee, nor as far

as I know from the Council, to keep open

the road on sections not taken over. Any work on those sections would be in the contract. E. M. Honeyfield, a member of the Council in ’7B, and Chairman of Committee of Works, said M’Lean was not told by the Committee that be w - as to have £SOO for doing contract 15. De G. Fraser, surveyor, said; In December ’79 I inspected the Mountain-road, and prepared a plan of the road as formed. The grades are not as good as the grades laid down on the original plan. The cuttings have not been made as on the original plan, the alterations being in the contractor’s favor to a large extent. In one part there is a difference of 2 feet 6 inches per chain, extending about 4 chains. In another part an embankment is 6 feet lower than on the original plan. There are other smaller discrepancies.

Cross-examined, the witness said any ■deviation from the original line would account for any discrepancy between his levels and the levels in the original plan. George Harden, present Engineer for the Council, said : I went with Mr Fraser to start him on the level of the Mountainroad. The road was not made strictly to the original centre line, and any deviation would account for a difference between Mr Fi ■aser’s plan and the original plan. I have calculated from Mr Fraser’s plan that about 16,000 yards would be required to bring M’Lean’s work up to the original plan of sections 12, 13, and 14. Both levelling up and cutting were deficient at various points. I could not have given a certificate for such work. After this time I prepared a plan for completing the worst part of these three sections ; and M’Devitt took a contract for it, the price being £159 19s 2d. Mr Stafford objected that this evidence could not be brought in as a set-off ; that the amount since expended on these sections of road could not be set-off against the plaintiff’s claim. The Judge ruled, after argument, that the evidence was admissible. Witness showed from the original plan various parts where M’Lean had not done the amount of cutting or filling required in his contract for sections 12 to 14. The defects had to be made good by M’Devitt’s subsequent contract. The 16,000 yards of earth to make up differences in M’Lean’s contract would have cost £733 6s 8d at lid a yard. M’Devitt’s supplementary contract was £159 19s 2d, and for that he moved about 2,500 yards, in the four worst places out of three miles. These calculations are based on the assumption that no deviations in M’Lean’s contract were authorised. Mr Stafford ; You have made out that M’Lean is the guilty party as to these defects. Witness ; I can say nothing about that. Could these defects have been done without the knowledge of the Foreman of Works ? Witness : He must see them if he were on the works. Then Rogers must have been a guilty party along with M’Lean ? Witness : That does not follow. He may not have passed the work. Re-examined : The road delineated on the plan was much better than the road as finished. The Engineer has a hundred miles of road in the County to look after, and it would be impossible for an Engineer to be always on the Mountain-road looking after work there and attending to his other duties also.

George Rogers, Foreman of Works to the Council in 1878, said : I superintended M’Lean’s contracts on the Mountain-road. M’Lean did not complete contracts 12, 13, and 14 within the specified time. On the sth August he had not completed the work according to plans and specifications. I did not pass these contracts at any time. I had frequent differences with M’Lean and his foreman about getting the cuttings deepened and the grades properly made. I could never get the ditches brought up to requirement, although they were a very necessary thing to drain the road. A great many extra log culverts could have been done without if he had made the ditches right. As to section 15, I had positive instructions from the Council not to interfere with that in any way, and I never did. I examined some extra work on that section, when I went up with M’Lean’s foreman to agree about what was due to M’Lean. I estimated the probable cost of section 15 according to plan and specification, and I believe the amount was £2OO, In August, 1879, after the work was done, M’Lean’s foreman went over the ground with me to agree finally upon extras. M’Lean said he would stand to anything we two agreed on. His foreman and I agreed to a detailed statement of all extras

which had not then been returned to the Council and all work required to complete the contract ; but on presenting that statement to the Council, M’Lean would not stand by what his foreman had agreed to. I did not authorise any coach tracks being made as extras beyond those in ilmt joint list of extras. Any culverts or other extras outside that list were not authorised by me. I have never passed sections 12, 13, and 14 as being completed according to contract. Cross-examined : After four months of winter traffic, a bank made up 4 feet with soft soil or bog would sink to 2ft. Gin. Mr Fraser must have measured up all those banks that have shrunk. Judge : If the banks have sunk, tire cuttings would not swell, would they ? Witness : No. (Laughter).

Mr Stafford : Would £B4 15s which 3 r ou estimate as required to complete the road according to contract, be sufficient to make that a perfectly good road. Witness : Yea, quite enough. If more was spent to finish the contract, a better road must have been made than that shown on the plan. Mr Stafford : Are you and M‘Lean on bad terms ? Witness : I dislike him as much as I do you. (Laughter). But you don’t dislike me, do you ? Witness ; I don’t know that I have an}’ great affection for yon. But are you and M‘Lean on bad terms? Witness : I would do him a good turn if I could, speaking ironically. As to deviations from plan in the road line, I authorised all of them, and they improved the road. I was authorised by 7 the Council to make deviations. Persons were making reports about the Mountain road overy day. When Mr Tregear saw that road and reported to the Council, lie must have been in the same state that M‘Lean was the other day when he went to the Council [and said he saw Rogers drunk]. I don’t think Mr Fraser’s is a reliable plan. M‘Lean’s work was done very well on that rough piece of road. Re-examined by Mr Hamerton, who asked : You said you are not on very good terms with Mr M’Lean : now what sort of terms are you on with the County Council. Witness: Just the same. I don’t care much about either of them. If M’Lean had done his last contract within the specified time, he would have had fine weather throughout. The banks would not not have settled so much. By a Juror : The timber growing near the work was fit to make culverts. This closed the case for the defendant, the Court having sat till 10 p.m. FRIDAY.

The Court resumed at 10 o’clock

Mr Hamerton summed up his defence to the jury, the substance being as follows. As to the claim for £SOO for 68 chains on road section 15, the plaintiff admits now that there was no written contract, but relies on verbal instruction which he alleges to have been given to complete the section. The jury must construe a verbal contract by the weight of evidence; and, the evidence of M’Lean is contradicted by four Councillors, and the Clerk, who all say the plaintiff’s tender for section 15 was accepted but never signed, that his tender was to do all the work specified for £162, that this was to complete formation of 22 chains and clear the remaining 68 chains, and that he was never instructed to do more work than specified in that section, because a deviation from the line over 68 chains was to be made and was actually made. This, he contended, is either an attempt to get £SOO which the plaintiff is not entitled to, or he is a very stupid man. The Foreman of Works has sworn he was instructed not to do any work nor to interfere in any way with section 15, and that he did not over-see any work on that section. As to the second action, a claim for £1566, there have been progress payments made on this contract for sections 12, 13, and 14 ; there have been sums expended to complete work on those sections which ought to have been done under the contract; and there are penalties to recover for the contract time being exceeded. These set-offs exceed the amount property due to plaintiff under this claim, and for extras which the Foreman of Works has allowed. The plaintiff claims for other extras which the Council and their Foreman do not recognise. Plaintiff was allowed 90 days from the acceptance of tender, Jan 2, ’79 ; but he did not begin the work till April, which was after the contract time expired. Payment for the amount of his contract less deductions, has been tendered by the Council but not accepted. The Council are now entitled to deduct also the penalty of £1 a day for overtime on each section

up to August . The sum admitted to be due to plaintiff is £195. Against this and against his unadmitted claim the Council set the Foreman’s estimate that it would cost £733 to make the road what it was planned to be ; algo £36 for drains. Mr Haraerton’s address lasted three hours. Mr Stafford addressed the jury for the plaintiff. He first asked that an item of £32 15s for Mr Fraser’s survey of the finished sections, he struck out of the Council’s set-off because no evidence had been produced to show that sum was paid. The Judge struck out the item. Mr Stafford contended that as to the £SOO, the Council had not stopped the plaintiff from going on with section 15, and having allowed him to go cn without warning or protest, they become responsible. Judge : Are you not going a little far ? The County Council allowed him to go on with the first 22 chains, although he had not signed the contract ; and they saj r they are willing to pay for that portion of section 15.

Mr Stafford: They got, the rest of the road made, and the public used that portion until the Government made the deviation twelve months after ; and yet they now say they did not authorise the last 68 chains, and will not pay us for work and labor done. This is the way a public body is trying to rob the plaintiff. It shows how dangerous it is to deal with corporate bodies. You never know when yon are safe with them. It is for the jmy to say whether there was not an implied request to go on with this work. I need not show the request was put in express terms. You, gentlemen, are not the sort of men who, if a man has not got his bond, will not give him a brass farthing. The Council say they could have recovered £433 for penalties, and other enormous sums for completing onr work. That is the way they meet my client’s claim for work and labor done. As to our contract for sections 12, 13, and 14, they say we have no certificate that the work has been done. I say there is nothing in the contract to show who is to give the certificate.

Judge : There is evidence that the practice has been to pay your client on the certificate of the Foreman of Works.

Mr Stafford : I say he could get a certificate from anybody. Judge : That is to say, he could give his own certificate. Mr Stafford : Not exactly' that. As to penalties, the contract was signed on the day' on which the contract time expired. I ask you to say this condition is not reasonable, and that the contract amounts to a waver of the penalty on the part of the Council, because of the date on which the contract was signed. They won’t give him a minute of time. They will have their pound of flesh, I say we had 90 days to do the work from the date of signing the contract, and that some time should be allowed for doing extras. We have done extras which they say were not authorised, but which are not disproved. We claim £lO3 for extra ditching, and they claim that we ought to do £36 worth of ditching to complete the contract. I say if yoirstrike off one claim, you should strike off the other. Judge : In what I'atio ? Mr Stafford : Pro rata. Judge : Then you would strike off one item on each side, irrespective of the amount ? Mr Stafford : Oh, the jury may be more liberal to us, if they like. I ask the jury to give us a reasonable sum for the work we did on the 68 chains on section 15. He spoke two hours. The Judge summed up to the jury, directing them as to points of law;, leaving matters of fact to be determined by them. He said it is for the plaintiff to prove his case, and what he fails to prove by evidence he cannot recover. As to giving the plaintiff notice not to go on with the 68 chains, such a notice was not a necessity if the Council knew that work was going on outside the terras of the contract for £162. If they thought there was a misunderstanding on plaintiff’s part, it would have been as well to give him notice not to go on ; if they knew he was going on at his own risk, intending to force them to pay for it, there is no reflection on the Council. When plaintiff sent a letter to the Council saying he claimed £SOO for doing section 15, their letter to him may be accepted as an answer, to the effect that the tender they had accepted was for £i62. As to the extras charged by plaintiff, he has to show that they were authorised, and that the charges were agreed to or are reasonable. As to plaintiff’s claim for extras in sections 12, 13,

and 14, ami the defendants’ set off, it appears that tit is contract was not executed in the manner required under the Counties Act ; and the wiitten contract being informal, the penalties therein specified cannot be enforced. That item in the defence cannot be allowed. Plaintiff threatened to close the road unless paid for repairs caused by traffic on unfinished sections ; but the public cannot be prevented from using the Queen’s highway, except upon legal notice to close the road. The question will bo whether those extras were authorised. Plaintiff claims £496 for all extras ; and £lsl have been paid, leaving £345 as his net claim, apart from the £SOO for the 68 chains. The Judge spoke 3£ hours. The jury retired at 8.20 p.m. to consider their verdict. VERDICT. The jury returned into Court at 11.30 p.m. They had adjourned for refreshment at 5.45, before the Judge bad completed his summing up, and were therefore not punished in that respect. The vetdict on the claim of LSOO for completing 68 chains in section 15, was in favor of the County Council absolutely. This would give costs against the plaintiff On the second claim of L 1566 6s for balance and extras on sections 12, 13, and 14, the verdict was for plaintiff for L 146 5s as balance due, and L 236 for extras in all L 382 ss. This would carry costs against the Connell. Expenses of two professional witnesses from Wellington for plaintiff, but not called, were not allowed. Costs in both cases are to be arranged between solicitors for the parties, with appeal, to the Judge.