District Court.

Poverty Bay Standard, Volume IX, Issue 963, 23 July 1881, Page 7 (Supplement)

District Court.

[Before His Honor Judge Kenny, and a Special Jury, consisting of Messrs. Bailey, Barker, Adair, and C. Anderson]. The usual sittings of the Court took place in the Court-house, on Wednesday morning last, when the following business took place :— R. Hurrey v. C. C. Council. Damages £2OO for alleged losses sustained by the plaintiff through detention of material, and stoppage in traffic, &c. Messrs. Brassey and Nolan appeared for the plaintiff, and Messrs. Ward and Rees for defendant. Counsel for plaintiff addressed the Court in argument on the defendant’s pleas. Mr. Brassey stating the plaintiff’s losses were considerably more than the amount claimed, and the damages were reduced solely for the purpose of bringing the cause of action within the jurisdiction of the District Court. Robert Hurrey, sworn, deposed : I entered into a contract with the Cook County Council for the making of a certain road. I inspected the railway plant. I have had ten years’ experience in tramway laying—in Australia and other places. There was sufficient plant at the time of my inspection to carry out the contract. The County Engineer went with me to point out where the plant was, this was after the bond was signed. I took the material away for the purpose of. the contract. I got only a portion of the bolts and dogs. I have completed the contract, -Rnd the work has been passed by the Engineer. I got the fish plates. When I inspected the plant there were sufficient dogs and bolts for the contract. The County Council gave some of the dogs and bolts to the Borough Council, that is the reason I was short of them. I sent to Gisborne for the short supply of bolts and dogs, without success. I had about 35 men employed at the timo. I told both the Engineer and the County Clerk, that the work was almost at a standstill for want of the bolts and dogs. I explained to them the loss I suffered from non-delivery of the material. I repeatedly sent to these officials for the remainder of the plant, and I was informed that the Council had to send away for it. A letter from Mr. Hurrey to the Council, explaining the nature of his losses, was put in aird read. It showed that he was put to a loss of 8 hours’ labor out of every 24, and other expenses.

Examination continued : I laid dogs and bolts myself, for which I had to pay. After waiting 8 or 10 weeks the Engineer promised to get some of the requisite material macle in Gisborne. I got 1 cwt. a fortnight afterwards, and subsequently in such small quantities that it would require about two years to complete the supply. I went to Humphries’ smithy, and found a small boy about 12 years of age making the dogs and bolts. At that time I had 35 men at work. Reports from the Engineer shewing that the contract was proceeding satisfactorily—and urging the supply of requisite material, so as to avoid delay — were put in and read. Examination continued : McLeod’s contract for the Borough was started after mine with the County. I sublet some of my contract; and the subcontractors sustained an equal loss with myself. I calculate the money loss I sustained through having to shunt the engine was £4 a day for 18 days. I claim £BB for this and other losses. With regard to the injury sustained through traffic over the road, witness said nearly the whole of the inhabitants of the district travelled over the road, in defiance of a notice given by the Council Engineer. A long argument ensued, between counsel and the Court, for about two hours’ duration, on the question of permitting certain allegations in evidence. His Honor ruling that the County Council, in proclaiming the road as closed to the travelling public, did all that was required of it to do. Examination continued : I quarried about 250 yards more metal than I required, The value of it is £3O; and forms a portion of my claim. By Mr. Rees : I am certain the stone is not at the quarry. I have been told so. I believe the man who told me. I formed an estimate of the quantity, and valued it at the labor it cost. The Council has paid me all the contract monies. I had to pay the Council £l2 to obtain one of the progress payments. I told the Council that I should try and get a refund of the £l2. I left it to the Council’s

sense of justice to refund the £l2. I recognise that I paid the Council £l2 under compulsion. The cost of the £l2 arose from the alteration of the road after the contract. I have received all payments due under the contract on the certificate of the Engineer. Even with the fang-bolts there was an insufficiency of material. It was understood that I was to take away material sufficient in proportion only to carry on the work. It was not understood that I could use fangbolts enough for 12 miles in laying one mile of tramway. There never was a sufficiency of dogs and bolts there to lay all the rails the Council had. Ido not remember if the Borough Council had a promise to have some of the material, prior to the contract. I enquired as to the contents of the material before the contract. The Engineer and I considered it was sufficient to perform the contract. Re-examined by Mr. Brassey: He went over the work at different times, and approved of it, I was at liberty to use what timber I chose for sleepers. This is the first I have heard of the Council’s complaint of my using more material than necessary.

S. Oxenham was examined to shew that some of the material was taken away at the instance of the County Engineer.

Malcolm McLeod gave testimony to the effect that he had a conversation with the County Engineer about the railway material. Mr. Winter said /that there was material enough for about 12 miles of line. He knew of no other such material in the Bay. Of his own knowledge there was sufficient to complete the contract. He (witness) subsequently took some of the material for his own Borough contract. This being the case for the plaintiff Mr. Rees addressed the Court on a question of non-suit, submitting that there was no case for a jury. Mr. Brassey replied, and His Honor said that as regards the £l2 that was quite outside the contract, but it was quite competent for the plaintiff to bring . his action for that sum in the R.M’s Court. With regard to the short supply of material, he thought that was sufficient for the consideration of the jury. His Honor reviewed the various phases of the arguments of Counsel and decided that the case should proceed. Mr. Rees addressed the Court for the defence, and called G. J. Winter, who deposed : I am Engineer to the Cook County Council. I have not pointed out to Mr. Hurrey any of the material for the tramway. I had some conversations with him about it, but, with regard to the fangbolts, I cannot say that I spoke to him about them before the contract was signed. I thought at the'time of the contract that the fang-bolts were to be used with the other material. Before the contract was signed a promise was made to let the Borough Council have the use of 3 miles of the plant. I cannot say that Mr. Hurrey knew of this. Mr. Hurrey had a perfect right to take what portions of the material he required. Had he them before the Borough Council took theirs, he would have had plenty for his contract. I did not lead Mr. Hurrey to suppose that he could use the fang-bolts, and leave out the other bolts.

By Mr. Brassey : When I reported to the Council that the work was progressing satisfactorily, I had not discovered that some of the material was short. I was satisfied that the work was performed according to contract, and gave a certificate to that effect. I don’t know why the use of fang-bolts was not mentioned in my special conditions. This concluded the case for the defence, and, after some remarks from His Honor, Counsel on both sides addressed the jury, at length, after which, His Honor summed up, and the jury retired, returning in about 15 minutes with the following result (1) Did the defendants point out to the plaintiff the iron rails, fishplates, bolts, &c., in the special condition mentioned ?—-Not sufficient evidence. (2) If not, what were the iron rails fish-plates, bolts, &c., in the special condition alluded to ? —Those stacked near the Taruheru River. (3) Was the plaintiff at liberty to reject the fang-bolts, or was he bound to use a due proportion of them ?— He was at liberty to reject the fangbolts. (4) What damages has the plaintiff suffered, if any ?—£7o. Judgment was entered up for thi