RESIDENT MAGISTRATE’S COURT, GISBORNE.

Poverty Bay Standard, Volume X, Issue 1021, 10 January 1882, Page 2

RESIDENT MAGISTRATE’S COURT, GISBORNE.

Saturday, 7th January. [Before Captain Preece, R.M.] JOHN M*DOWALL V. THE BOROUGH COUNCIL OF GISBORNE. Mr W. L. Rees appeared for the plaintiff, and Mr Willoughby Brassey for the defendant. This was an action in which the plaintiff, who had been a contractor under the Borough, sued for a sum of £B3 ss. 10d., being a balance of £lB due on contract; £59 2s. fid. for work performed in excess of the estimated quantities furnished to him by the Borough Engineer; £5 3s. 4d. for removing soil from Greystreet, and £1 due on contract, making the total amount of claim as above.

John McDowall, sworn, deposed that he was a contractor. Had undertaken- five or six contracts from the Borough Council. In the present instance he found, as the work progressed, that there was more to be done than he had contracted to do. He told the Engineer, Mr Drummond, who asked him to deviate from the work specified in plan. He represented to the Engineer that there was to be a lot more work to be done than he had tendered for, and that it was impossible for him to carry out the job for the price fixed. Mr. Drummond replied that witness should go on with the work, and as there was to be a bridge put up over the Waikanae, he (Drummond) would put something in his way. It was agreed that he was to get Bd. a yard for shifting stuff. A few days afterwards Mr Drnmmond went South. Seeing, as the work went on, that there was more to be done thau the figures in the schedule of quantities indicated, witness went to the Mayor, Captain Porter, and to Mr Townley also. Mr Townley said that on the Friday the Borough Council would meet, and that he (witness) should attend. He attended, but the Council did not go into the matter. Witness afterwards presented the schedule of quantities to Mr Sherriff, who stated the schedule of quantities shown by him (witness) might have been made up six months after the contract was entered into. There was nothing said about the work with the Councillors. The tender was for carting andjmoving 1,200 yards of soil, “Carting” meant removing soil any distance up to ten chains from one chain and a half. “Moving” meant removing soil from any distance under one chain and a half up to that distance. Did not go over all the work with Mr Reynolds. Witness pointed out some of the work to him. The difference in price between “ carting” and “moving” soil was 6d. Estimated the cost at 2fd. for moving soil, and 6d. for carting, besides 12} per cent, to be added for wear and tear upon the whole amount, and eight or ten shillings for clearing the road of briars before the work was begun. The amount of tender put in was £6B 10s. Witness had no doubt as to the meaning of these two terms, “carling” and “moving.” Had communicated with Mayor and Councillors, informing them that more work than was set out in specifications was required to be done. Out of the £6B he received £5O. The Council had offered him £5 more subsequently, but he declined to take it. The charges made for the extra quantity removed were on the same baser as original contract price. If the /Correct quantities had been given him at the outset he would have tendered at same rate.

Cross-examined by Mr Brassev : Went over the ground with Drummond; aad saw work to be performed.

Did not know how many chains there were. Signed the contract on the good faith of the quantities stipulated therein being the correct ones. It was not customary for a contractor to employ a surveyor to check the quantities. The contractor was supposed to know whether the amount of work represented to be done was there. Witness considered it was the duty of some one to have a plan or tracing prepared before contract was entered into. Did not think it was carelessness on his (witness’) part to tender for work of this sort without first seeing a plan. Signed the contract in good faith that what it stated was true. Did not know how much of the work he had got through before the plan was made. Had a man and couple of horses employed. Witness got the ground l measured off, and the proper quantities taken out. He then ascertained i that there was more work to be done than was stated in the original speed-1 (Rations. Informed Mr Drummond’ that there was a great deal more to be done. He said if there was more to' be done he would try and make it up to him when the cutting was to be done | at the Waikanae stream. Was quite! certain that he mentioned to Drummond that the proper quantities were in excess of those supplied by him. Got Mr Rees to write to the Borough Council to the same effect long before the contract was finished. Never saw the plan in Mr Townley’s presence. To the best of witness’ belief the plan before the Court was the one from which the work was done. 11 was some considerable time after the contract was accepted that the work was undertaken. Was not led to understand if he did not want to go on with the contract that he could throw it up. All the pegs were not in the ground when he started the contract, there were odd ones here and there. Got Mr. Reynolds to lay off the sections. He furnished witness with quantities after the road was passed. Re-examined by Mr Rees : It would have been impossible for witness to ascertain the quantities by merely going over the ground. Had finished three other contracts without any plan being furnished to him. Drummond guaranteed that there would be no more work to be done beyond the schedule he gave. He said there might be less.

By the Court: Was this plan given to you when you first went to look at the work, or when you went to work in July last.

Witness: I had finished two contracts before I went to this one. I had not seen the plan I just commenced the work in July last. His Worship : I understood yon to say you commenced this contract a long time before, and that the Council stopped you. Afterwards you commenced again. Witness: 1 was working on three separate contracts. There were seven contracts altogether, and I was the lowest tenderer in five. I had finished three, and the Council asked me to leave off until the winter. I think that was about July. The item £5 for carling extra stuff from Pal-merston-road to Grey-street, was for extra work done at Mr Drummond’s instructions. It was carted a considerable distance; 8d a yard is a fair price. Carted about 155 cubic yards at that price. Mr Reynolds measured the quantity of earth. By Mr Brassey : Do you not know by the terms of your contract that you were obliged to remove that soil ? Witness: No ; the contract specified I was not to cart at that price beyond 10 chains.

By Mr Rees : Mr Drummond instructed me to take this stuff away. 1 claimed extra payment for doing so at the time.

Mr Reynolds, Civil Engineer, sworn, stated he measured the ground. By Mr Rees: I am not aware of any particular custom here as to “moving” and “carting.” I do not think “ moving ” would apply to over 1) chains. “Carting,” he (the witness) understood, would mean removing the soil a greater distance. Had measured the quantities actually done. Quantities submitted by the plaintiff to the Court, 3,305 cubic yards, were taken ont from witness’ measurement. Measured quantities taken out of Grey-street — 155 cubic yards. Mr Rees : Is it customary for contracts to be let by tender without the pegs indicating the levels being placed in the ground ?

Witness: According to my expert ence it is not.

Mr Rees : What is the usual course adopted, according to your own professional experience ? Witness: It is usual for the contractor to see the plans and sections first, and then get the quail 1 ities taken out, when he bases hie tender upon the quantities ascertained.

Mr Rees: You have heard McDowall’s evidence to the effect that there were no plans and no level pegs. In the absence of these could he have had any other data to go upon, beyond the quantities furnished to him by the Borough Engineer? Witness : Nothing whatever. Mr Brassey : Is it customary for a contractor to tender where there are no plans ? Witness: No; I have never met with any custom of that nature. Mr Brassey: Would not the contractor be tendering for what he knew nothing about ? Witness : In the present case there ■was some data to go upon. Mr Brassey: Supposing, acting on behalf of other parties, you drew plans

for the formation ot a road, and were paid, as Engineer, do you mean to say that they would be responsible for the quantities ? Witness : I certainly think they would.

John Drummond, sworn, deposed that the plaintiff entered into a contract with the Borough Council to do certain specified work in Grey-street. The contract had been completed and passed. Was not instructed by the Council to prepare an estimate of the number of yards of earthwork to be ramoved before the works were let. Pointed out to the plaintiff and other contractors the nature of the work required to be done. The intending contractors requested that the work would be pointed out to them. The work was pegged out before the plaintiff commenced his contract. Remember a conversation taking place between the plaintiff and Mr Townley, the purport of which was that McDowall could draw out of his contract if he liked. Do not recollect sanctioning any departure from the specifications. The schedule of quantities was annexed to specifications. Gave no guarantee that the schedule of quantities would not be exceeded. Calculated quantities from levels taken of I the mad.

William O’Ryan, C.E., deposed that dtiring the Borough Engineer's absence at Napier, he prepared plans and took the levels of the work in dispute. The work was commenced in

July last. Without plans the contractor could not make an accurate calculation of the work to be done. Was present when Mr Drutntnond and the contractor went over the ground. The plan was then left in contractor’s possession. From plans of Grey-street produced, would not state the accurate quantity of earthwork the contractor would have to remove. Without any plan, it would all depend upon the contractor’s knowledge whether or not he could carrv out his contract. For the purpose of tendering, without plans the contractor could make up a tender from the schedule of quantities produced. In the case of no plans being in existence the contractor would have to follow the Engineer’s instructions. It is sometimes usual for work to be pointed out to an intending contractor. Without a plan, and by simply going over the road, owing to the irregularity of the surface, he could only arrive at a rough approximation of what was to be done. If Mr Reynolds went over the road and laid off cross-sections at every chain, and if he took cross-sec-tions after the work was completed, he would be capable of ascertaining the quantities. Had nothing to do v ith preparing schedule of quantities, but prepared the plans. The contractor would bo justified in tendering for the work upon tho information supplied him, the Engineer haring gone over tho work and furnished rthe contractor with a schedule of quantities, the contractor should have a good idea of what he was required to perform.

The plaintiff recalled: As soon as a plan was given to him he engaged Mr Reynolds for the purpose of ascertaining what quantity of stuff in excess of the scheduled estimate he would have to remove before he would complete his contract in accordance with the plans. Mr Reynolds made a careful survey of the road before the work was commenced, and after its completion. Saw Mr Reynolds take crosssections of road and told him to be very careful and to do nothing but what ho could swear to. If there was anything he was doubtful of, to let the Borough have the benefit. Mr Brassey addressed the Bench at considerable length, and after review, ing the evidence of the plaintiff, submitted that he was not entitled to a verdict.

Mr Rees maintained that his client was fairly entitled to the amount claimed. There was no doubt about the work having been done. The Council had full value for what his client claimed, and it was but reasonable that they should pay their contractor.

The case having closed, the Bench gave judgment. His Worship stated that the plaintiff had been clearly misled by the Council. In tendering for the contract he had evidently nothing definite to guide him, nor did it appear that the Engineer for the Borough was compelled to furnish the necessary schedule of quantities, but he certainly should have supplied a plan of the works contracted for. The Bench, therefore, was of opinion that the contractor had an opportunity of foregoing his contract. The plaintiff, however, was entitled to claim for the difference between the quantities furnished in the Borough Engineer's estimate—l,2oo yards, and the estimate made by Mr Reynolds—3,3os yards. Verdict for the plaintiff for £63 7s, and costs, £9 12s; making a total of £72 19s.

H. E. Webb v. W. L. Rees.

This was an action in which the plaintiff claimed the sum of £B9 9s Id. The defendant pleaded a set-off amounting to £55. The case was adjourned from the previous sitting of the Court until this day. Both parties had agreed that the claim and counterclaim should be each heard upon its merits.

Mr Brassey appeared for Mr Webb, and Mr Rees appeared for himself. The case which w as one purely of accounts, occupied nearly the whale day. His Worship gave judgment at 5.30 p.m., and went through the different items seriatim. A sum of £57 3s lOd

for printing and advertising done on behalf of the East Coast Land Company and charged by plaintiff against the defendant, was disallowed, the defendant having contended that he himself was not personally liable for tho amount, the work charged for by Mt’ Webb having been done on behalf of the East Coast Land Compafiy, against whom Mr Webb’s ground of action lay. In reply to Mr Brassev, His Worship remarked that Mr Webb had a right of action to sue the Company. In regard to the offset put in by Mr Rees, of £55, His Worship did not think it fair that a certain sum of £23 7s lOd in Mr Rees’ account should be paid by Mr Webb, the negotiations for which this charge was made having failed, and exclusive of that being for Mr Rees* own benefit, and relating to the establishment of a Maori newspaper. Judgment tor the defendant for £ll ss, and costs 6s. Mr Rees only claimed costs 6s, the amount of filing the set-off.