District Court.

Taranaki Daily News, Volume XLVI, Issue 42, 19 February 1904, Page 4

District Court.

T.AV FF.BROARV 18. Honor Mr District Kettle.) v. New Plymouth Covwi'.

Fkjn.'M W.Perry (-foreman), J. T. I i* Mr TlWlnrin appeared lor the plain- ] Is *aT«HS ifer QuilKoai for defendant. r«M •» action brought by a FqoatrWrtor «go*ast the Coundl for VuowWßt tor cau-tinv ™ tal to the Council's stotie-crusftier, the claim IMe £IOO. ' „ aVMakme opened for the plaintiff, .'Mid so*i tfce arrangement waaniade lb«t tue stone abouWi be paid for at the rate of 4b for every yard <-carted (LWay.irom the crusher, the ; taHy jpept by the engineer. ■>i The latter atljhilfttioii was not carrfc4 out. HM the borough engineer ' - kept tie roeeisvireniCTit, he would tove submitted to tbe Council's decision. Plaiqjtift made entries daily • is to ttfe progress of the work, which wei-e a" faithful account of the •'stone called. His I onor: 1 thought you said I the engt.eer was to keep the tally. - . UrQuiliiaiu said that a non-suit point could be raised now, as the • contiact provided fon the engineer to take all measurements. Mr tf&lone saki that not the engi- • neer. tait the engine-<drh'er, kept the tally. - His Honor said the contractor had read the terms of the specification, '. and was bound by them. He would ask counsel to'get on as qfjickly as

poafrble. ' continuod that when 865 or W yards hW been carted, f_. v th# the borough lorewan to hkve. all the atone crushed

Sr : ,in onder that lie might see bow niattera stood.-. ARer two or three ap- - pUc«ttcißß this was done, and in v" Decembsrtie ilgned a voucher that ;fas bad carted 833 yaids of stone ff.v;np to Dec. 17. TMs was taken by to mean that this was the

» -wiMKJit tartei and crushed, but now the Council'said that this 882 yards Carted to that £ ndt. Ptainl ,tHTma refiiwd to "accept payment - und«r tte (Xgincil's cwiditioDs. Jdtti Howard Coferfjy, the plain- . ; tiff, said commenced work with ; two {earns and two horse trains of lis own, and one horse te*m t wWcfc be Ured. He produced

*** Jtr QufUiam .jcfojected to these «i»li9«)k» femtcadmitted. Hta Honor ruled that the books ■ ■gjwere artml«|Hhteh-only so far as re•ating to tfcoee figures which . were -, frotn own kaow- '• ledge.

Aott» crushed , ana a rretura oi the quantity supplied to ttaa, so tbat he could compare Us with Urn crusher. "" promised, but failed K> carry otiillia promise. Then newcn^ ; to t>» cnyioeer about it "d was that Ms matter m in the tat.ii cfi the totun. Tried JHoveabar. as toe wanted to p*y. royalties tb Mr Cameron. He kept no tally erf • ttoe stone crushed la December, lgoa. be went to the twough engineer's officer tor a ' t 0 mh that . He< * rtah > ied a receipt for 832 J"""* »Wne. He signed the voucher tot theainpunt, as he was pressed tor money. The engineer * ouU JJ°t Pf Mm unless he signed • Ml receipt to Dec. 17, but bad since admitted,that the measurement "* a T^ y^UJ> . tp Dec - *■ were wDtc. 17 . about 300 yawls of un-'-&iP l -SL ,a w t 80 y**»s ol r (tetenukKd the engineer gave htm a statement, estimated by Mr Bas™n' " r s peii<er a suboidinate, of •tow <*jno)roting to 1290 ywjjta. Hag plaintiff disputed, and .mimed to -6s 6d as a snal payment. He claim«i payment for an aKhfttfcmal 500 - went into the .matter wiih a Committee set up by tto Council, «« still later employed coupfet, who extracted the re< **P t - The Council advl <L°l/ r !2It 0t 01 and on PA. p»M for. Knew the taUy tad n« beea kept toy the engineer, but by -men employed at the muter. Plaintiff's taUy was 1761 cubip yards trom Dec. 4, but fce had *PJ? D ]?" °* 50 Jarßs. The balance dde was £B6 5s lid. He • bis carte Carried more than the ' measurement allotted to them All > the items in his diary were made frsm his owtt knowledge. He «aw every load delivered. "To Mr QitUftbm: From Dec 4 1901, to May- 7, 1908, tallied every <h«y going t<>; the crusher. Tallied t-hem in April;. Was never away one day on wMch this work was going on. fa' WWtera during Apnl. Made a mortal tally of each . dray go'jigf to the cruder. Mr (ituiUiain crow-examined Colesb >' as to an entry in the statement or claim and in an account rendered for Jan. 29. showing a difference of 80 yai-ds of stoip-^rushed. Mr Malone explained that this was Sue to a clerical error in his office and his Honor, after comparing the original account rendered to the • Borough Council and Colesby's diary accepted the explanation. Re-examined by Mr Malone, plaintiff said he had not claimed for any loads that wens, dot delivered, and he averaged all delivered at two yards per load . Ts his fifonor: Witness had not applied to the borough engineer for • tally of stone delivered. He looked to the eogimwlriver at the crusher to keep the tally. Homas Parkin, carter, who had been working'-tor plaintiff, produced i diaries showing amounts of stone he had carted. 'Mr Quilliaaiu then oddressul the Court for the defence, quoting authorities in Support of his contentions. UntH the plaintiff produced the engineer's tally of metal delivered ho could not proceed. Bis Honor considered that the engineer was the servant of the Bor--ough Council, and the latter would bp _ responsible for his default of a*rty.

Mr Qirillian) submitted that a condition of the tender wob that the engineer's tally of metal was necessary. He asked tor ft non-suit. Mr Maloce submitted tfcut in this case there Was no condition regard- ■ iag the: neqwsity of a certificate from the engineer, therefore the plaintiff was entitled to payment for every yfluid of metal that came from the crusher. His Honor- reserved his decision on the non-suit point, as 'he was not satisfied that cases (quoted by Mr Quilliam were on ail-fours with the one under consideration. Mr quilHwii called L. G. P. Spencer, engineer to the New Plymouth Borough Council. who stated that he drew up tic conditions of the contract, ww. feet rue tea -tfce enginedriver t-o 'Sfeep & tally, which was done, and r witness entered the • amounts u() every night. Witness knew the capacity of the carts em- • ployed, and'was able to check the tallies suppHea. Coleeby never objected to ttys method. Regarding ■ discropaocy of 61* yards of stone, tWa occurrecKthrouyh chance j n the an,, plaintin WM paW for tfiil,;. ' V»P Dec- 4th, had er»jibed 933 yands acid the amount to dispute was l«8ij yawls ..Jj}?*** enWMiamhwd by Mr , at pome length regarding •waforemeoto «r the *lys. .fe';Wß , J r to his Honor, S°. "■■*%!% that from the ™»TO)«tl«i Tx received the amounts were correct, and fonncd - toe quantity of metal for wMch Coiesny was en tit ltd to payment. . Jtifhael Mober, borough foreman, J? Ve ovide P ce as to the working of too crusher. The tally was kep t by tbe engine-driver. Witness took the ; end. of each day and it to tfas togiaecr's office. L;= OWv|b«,.« borough carter,

Frank Keeunn, John C olson, carters for Colesby, and Vincent Arden, traction engine-driver, also ga\ie evidence. This closed the case for the defence.

His Honor sai<l he proposed to direct the jury to the effect that if they believed the engineer had made the calculations producing the quantities mentioned they must give a veixiict for the defence, i Mr Maione contended that the tal. ly book, produced did iw»t contain tallies between Dec. 4 ami March' 3D. His Honor said t'.i'at the onus of proof of error in the calculation* lay upon the plaiintili. The court at this i*oint adjourned till this morning, Mr Mulone in the meantime to formulate issues to go before the jur>.