RESIDENT MAGISTRATE'S COURT

Southland Times, Issue 655, 10 April 1867, Page 2

RESIDENT MAGISTRATE'S COURT

; Monday, Bth Apbil, 1867. (Before H. M'Culloch Esq., 8.M.) Civil Casks. chetne and cubtis v. walkbb and GABMSON. Action t6 recover £38 balance alleged to be due on certain work done by plaintiffs, vi?., shifting an engine shed, bonded store, and telegraph office, at the Blutt, and certain extra work necessitated by an alteration of levels. For plaintiffs Mr Harvey, for defendants Mr Macdonald. Mr Harvey having stated the case to be proved called Leslie Cheyne, contractor, one of the plaintiffs, who deposed that he signed an agreement to shift the engine shed at the Bluff. Agreement read as follows :— "An agreement for the execution of certain work at the Campbelltown station of the Bluff and Invercargill Bailway, between Messrs "Walker and Garmson on the one part, and Messrs Cheyne and Curtis on the other part, viz., the putting down piles, and shifting engine shed, the said Messrs Walker and Garmson agrees to let, and the said Messrs Cheyne and Curtis agrees to take the shifting of Engine, shed from its present situation to the site fixed upon by the government engineer, agreeably to plans and specifications for the sum of twentyfive pounds sterling. The whole of the work to be completed in the space of three weeks from the present date, viz., the 14th day of Feb., 1867, if any damage should arise from the shifting of the same the work so damaged to be made good by the said Messrs Cheyne and Curtis. The money to be paid in instalments of seventy-five percent., and the remainder when the certificate of the government engineer is obtained." Was not shown any plans or specifications. Mr Walker, one of the defendants —one of Messrs Smyth and Co.'s subcontractors — pointed out the place and gave the levels. That was on the 20th. Put down the whole of the piles as instructed. During the progress of the work Messrs Walker and G-armson were both there at times and found no fault. Plaintiffs called them and showed them the work done and they were quite satisfied. Plaintiffs then began to shift the engine shed from its old stand— about 600 or 700 feet. No alteration of levels had then been ordered. Moved the shed about 200 or 300 feet or halfway before anything was said about it. Mr Walker then came a,nd said, "the piles are too low; you will have to take them up and raise them two feet higher." Witness refused on the ground that he had placed the piles at the levels given, and if he altered them it must be at defendants risk and expense. Mr Walker said, ".I will see all about that." His men, witness believed, altered the level of the piles by taking out those placed by plaintiffs and, putting in longer ones. Messrs Walker and Garmson did not charge plaintiffs with the new piles. After that witness's party shifted the shed and placed it. The claim for extras was on the ground of more labor and timber being required to make a way for the shed. Witness and partner claimed «£ls for that, it was a fair and reasonable charge, After plaintiffs had completed shifting the engine shed witness went to Mr Walker and told him. Handed him an account for .£25. He looked at the account and threw it away. He then asked if we were going to shift the other piece, the bonded <<store, and telegraph office alongside the engine shed. There was no other portion of the engine shed to move. This was after witness had given him the bill. He said, "Cf you place the other piece on the piles I will will give you .£10." Witness agreed to do so, and did it. Applied for payment to Mr Walker, who said "he would not pay a cent." Witness then took proceedings. Cross-examined by Mr Macdonald — The engine shed, bonded store, and telegraph office were one building divided by partitions inside. The whole length was about 90 feet. The verbal contract with Mr Walker was made aftermyaccount for £25 was rendered. Under the first agreement the one of Ifth February, we laid piles for 90 feet. The reason why we laid so many was that there was no quantity specified. The engine shed occupied about two-thirds the whole building. I put down piles according to the way pointed out to me. I am not aware that the whole building was known as the engine shed. I did not tell Mr De Smidt that I had taken the contract to shift the bonded store for £25, but the engine shed. I known Mr Small, but neither he nor defendants pointed out to me that a difference of 6 inches existed between the ends of the piles, and we should not have had to alter the levels in consequence. The £15 extra is for labor caused by the alteration of levels. We had the building up to the new piles a day before they were ready. I have rendered a detailed bill to defendants. (Witness explained that there was extra labor in raising the road- way.) It took 4 men 5. days laying timber for a distance of 300 or 400 feet, rather more than less. I reckon 10s a day for 8 hours; We laid two rows of piles for ' the new building, and two piles at one end. We put no intermediate rows of j i piles, but aid just as we were told to dp. Walker and Garmson did not complain i to me of the dangerous state of. building when moved. It would stand as long as they liked. I completed about the 10th March, in time. I do not remember getting a notice from them on or about 22nd March. Mr Garmson read one to me. (Notice produced and read to the effect that the contract time having expired, Walker and .Garmson^ purposed t» complete the Work at plaintiffs risk. It was explained that no copy had been given to Cheyne and Co.) That < notice was only read after everything was placed on the piles. By Mr Harvey— That notice was given two days after the removal was com* pleted, and. we aekad fer payment,

Messrs Walker and Garmson showed us where to take off a sheet of iron to disconnect the roof of engine shed. G. Curtis, one of plaintiffs, stated that nothing was mentioned in the agreement about the telegraph office and bonded store. They were separate buildings, built at different times. To the Court, " I know by the way they were put together." Mr Walker marked out the ground for the piles. Witness said this is far more piles than the engine shed requires. He said "there is no quantity of piles mentioned in the agreement, and you will have to place as many as I want you to." Witness said to his partners that they would have to charge extra. There was only one pile out of level when they had done. The witness here mentioned a conversation he had with one of the defendants in which the former complained of the small sum his party was getting for the work, and the depth they had to put the piles. He reported his employer to have said, " Oh, as to the piles, as they are to be level with the rails, you can cut them in two — so long as the engineer is not about you know." (Laughter.) The witness corroborated Cheyne's evidence with repect '< to the offer of £1.0 for shifting the other portions of the building. Cross-examined by Mr Macdonald— " When the first account was rendered we had not got the engineers certificate. Mr Walker marked oat the site. I did not see the government engineer in the business. I did not see the plan (produced) until I saw it casually in Smyth & Co.'s office, after the building was shifted. I understood the £10 was in addition to the £25, and not on account. - To the Court — Walker and Garmson came now and then as the works were going on. By Mr Harvey — I- did not see any plans as between the Government and Messrs Smyth & Co. We asked for but never saw them. W. Conyers, locomotive manager on the Bluff Harbor and Invercargill Kailway, stated that 60 feet of the building was the engine shed — although: the whole of the building was known by thai name. It was shown as such on the plans (produced), which were made by witness. By Mr Macdonald— l saw (although not my duty to look after that work) that the piles were two feet too low, and pointed it out to Walker and Garmson. I saw the works in progress, and think there were enough piles, but I did not look particularly. When the place was shifted I noticed the building was one way and another. Witness, addressing the Court, said — I think Mr Simpson should have been called ; it is not my work to look after the buildings. To the Court— l don't what the terms with Cheyne and Curtis were— if to move the building they had done their work — if to finish it, they had not. Wm. Robertson (who claimed expenses, which were guaranteed by plaintiffs) carpenter, recollected when the engine shed at Bluff was shifted. The piles were first put in at the level of the rails, and afterwards raised. The building got damaged owing to having to raise it suddenly. That would not have happened if the level had been known at first. Mr Walker himself assisted when raising the level. Cheyne and Curtis were not carpenters. To the Court— Some damage occurred owing to the lower plates being rotten — they broke. The timber opened in consequence. I was sent twice by Walker and Garmson to replace portions of the plates. The building was damaged by straining through altering the incline. This closed the case for the plaintiffs. Mr Macdonald called John Garmson, one of the defendants, who stated that he wrote out the agreement, which included the whole of the building. Cheyne went over and measured the whole of the building before signing the contract — to judge of labor of moving. The first thing they did under the contract was to lay two rows of piles lengthwise and one across at one end, leaving the other open. Believed Mr Simpson, the engineer of government, marked out the site — witness had nothing to do with it. The first lot of piles were 6| out of level from one end to the other — lower than the level Mr Simpson gave. Witness' firm would have had to take them up independently of any alteration by the Government Engineer. Complained to Cheyne and Curtis of the piles before the Government Engineer made an alteration of two feet in the levels. Cheyne, he believed, promised to alter them previous to witness' firm getting the second levels. The raising of the ways might make a day's difference in labor for four men— perhaps not so much. They did not complete the removal of the building in the contract time — three weeks. It was on witness* recommendation that they severed the building to remove it — they were thinking of shifting it bodily. When shifted the first part of the building was all racked to pieces and ready to topple over. They commenced to remove the second part on the 24th of last month. Witness gave them the notice (produced), and afterwards expended about £33, perhaps more. Had to get men to remove the I old piles and repair the building.. Damage was done in removing the second part too. They had not a sufficient number of piles laid originally. Witness' firm had to put in extra rows of piles, It was left hr a scandalous condition, For want of sufficient piles the flour was hanging down about 18 inches, Their men put in fresh piles when the level was altered. Witness showed them the plans, before the agreement was signed, they were always accessible. Knew nothing about the verbal agreement for #10. They never produced any certificate of completion from the engineer. . To the Court— l have not got a ceffcifU cate myself vet. , By Mr Etarvey— t have specifications, of w ßat lam to do, I had specifications for the engine shed, but not levels no;

piles; The engineer had to do with Messrs Smyth and Co., and would not have certified the engine shed until fit to take off the main contractors hands. To the Court-^-I think from the usual courtesy of the engineer he would have given them a certificate for that portion of the work if properly completed. Mr. Harvey— Had they anything to do but shift the building ? • . (Agreement again read.) The witness continued — I showed them that plan in the telegraph office before the work was taken. (Plan produced ; a ground plan only. The specifications were also produced and read; they were not in greater detail than the agreement as to the work to be performed.) I believe my partner was there when the specifications. were read over to them. Part of the plates were rotten. Most of the damage was done before they began to alter the level. - ■- . * . cr To the Court— A peg was put mby us originally to indicate the level; of the piles, but they placed them 6f in. out of level. Subsequently it was raised two feet. : • -. John "Walker, a carpenter, and one ol the defendants, gave evidence corroborative of that of the previous witness. D. M'Dougall, carpenter, residing at the Bluff;- gave evidence respecting the state of the building after removal— that the. walls were damaged, and off the plumb— that the floor was much broken up. "Was employed in finishing it off by Messrs Walker and Garmson. There. were six or seven men employed about eight days at 12s per day. That was exclusive of the additional three rows of piles. Mr Garmson and another man and witness were employed, one day in putting these in. Estimated it could not have cost less than £20. Did not know anything about the levels of the piles. As a carpenter, should have understood the contract for shifting ; meant to remove the building, and put it. in the new. place , as before. Henry Joseph de Smidt remembered conversation with Cheyne about five weeks ago. Cheyne said he had taken the galvanised iron building to remove for £20. Witness said then he would not make salt of it ; that it would take £50: Cheyne referred to the galvanised iron ; building— that was all he called it. He entered into calculation about making „ the roadway— that it would take two c days. There was no one present but Cheyne and witness. James Shearer, manager of works on" the Bluff Harbor and luvereargill Eailway, stated that by the term engine shed was known the building that was shifted by Cheyne and Curtis— a building about ninety feet long. It was left in an unfinished state ; a good deal of work was required to complete it as before removal. Saw the piles first put in by Cheyne arid < Curtis ; some were not level on the top — they were not fit to receive the building - at that time. The level of the piles was. altered when the first part of the building was removed twenty or thirty feet. It might cost £1 to £1 10s to raise the roadway to the new level— perhaps £2. Could not say to a few shillings. To the Court— The rise in the level did not add to the risk of damage. Ido not think the whole distance was more than' 250 feet. I can tell by the plan (produced). It is 290 ft. I am not positive how far they had removed the building ; it was not clear of the piles it originally stood on. J. Small, carpenter, gave similar evidence. . . . The plaintiff Cheyne, re-called at the request of Mr Harvey, repeated his denial of having been shown any specifica- ■ tion by Walker and Garmson, By Mr Macdonald— l did ask for specifications. Mr Walker said: You have got your agreement; that's your specifications. Council on both sides having addressed the Court— Mr M'Culloch said, that as '' to the question of what constituted the "engine shed," he was of opinion that the whole building of 90 feet length was ! included in the term. The evidence went |to show that Cheyne had thought so. As . to the damage claimed for the alteration | of the levels, the defendants were clearly I liable. He thought, from the evidence, i that a sum of £3 would cover it. S In reply to Mr Macdonald, Mr ! M'Culloch said—" I hold that plaintiffs ! performed their contract for removal. If any sum is claimed for damage done, to the building when in course of removal, it must form the grounds of a cross-action." Judgment for plaintiffs for £15 15s and costs.