BOULDER CONTRACT.

Taranaki Daily News, Volume L, Issue 60, 24 July 1907, Page 3

BOULDER CONTRACT.

SUPREME COURT DECISION. Mr Fitzherbert.S.M., sitting as Registrar of the Supreme Court, yesterday wad the decision ol his Honor Mr Justice Button in the ease Montctiorc v. Parkin and others. In the hearing at New Plymouth on July 8 Mr X. S. Weston (Weston and Weston) appeared for the plaintiff, yH Mr A. 11* Johnstone (MsUone, Anderson, and Johnstone) for the defendant. In this eaae the plaintiff claimed dawIges from the defendants for breach oi agreement in being prevented from delivering certain boulder atone and so becoming entitled to receive payment therefore in pursuance of an agreement entered nifr* by J. (J. Monteiiore oi the one part and Thomas and Roy Parkin and Kyngdon of the other part, whereby it was mutually agreed that Monteflore should deliver on railway trucks at gmart road railway station as much boulder stone as the defendants would require to carry out and complete their contract with the llawera Borough Council. At the time of "inking the agreement, said hi-i Honor, both parties contemplated that the quantity of boulder stone necessary to carry out the contract was about 4000 cubic yards. Plaintiff went to considerable expense in getting ready to carry out hi* part of the contract, but defendants, through not commencing work under the contract, the contract, width was given to another

contractor. The defendants alleged that - they were unable to obtain trucks from the Railway Department to enable them to tak" delivery of the stone and at the trial set up such inability as a defence. At the time the agreement was signed it was evidently contemplated that some difficulty might be experienced by defedants in procuring the necessary trucks, and an arrangement was then come to for the purpose of meeting that

difficulty should it arise. It wa» con- t tended on behalf of the defendant* that t this agreement was merely unilateral, and that no obligation arose under it on j their part until they ordered the >ione; j in fact, it was merely optional with j them to take the stone or not. Xumer- j ous cases W*TC quoted in bupport of this . contention, but his Honor held that the , present case presented features which , distinguished it from any of those quo- ] ted.. The agreement was to supply such boulder stone a* the defendants "will require" which he considered meant "will necessarily require." and not "may require" or "may choose to require.' I here was still the ditiiculty tiuu the defendants did not in express *erins bind themselves to supply the trucks ami take delivery of any quantity of the st<»ne. He thought he was liound to imply the obligation ou defendant a purl, for it wa» ini|K>s-ible for the plaintiff to deliver the stone unless uud until the defendants Mip[dicd tlie trucks. It appeared to the Judge that the measure of damages in such a ca*e as this was the contract price less the costs of supplying the stone. The stone and screening*. 4400 yards in ali, were to be paid for at 3s a yard, or £660. From this had to Ik* taken the costs of loading, earn ing and tipping or unloading into the truck*. He had come to the conclusion that is 6d n yard was a fair allowance to be made for this, Including re handling, and this would amount to £330. There must aJ>o be some allowance for the stone it-elf. which, not being supplied, remained in plaintiff's possession. * It was stated by some witnesses that the supply of ntoi.e was inexhaustible, thai the river brought do*.m from time to time boulders to make up for all that was taken away. If plaintiff** store, like the widow's criw. wns inexhaustible, it would nnk»: no diiference whether the '•tone was left to him or not. But he thought this v:atrue only in a modified decree, and he avowed half the usual royalty, amount*!ng to £55, which, added to CB». made £385, which deducted fibril left a balance of €'275. which r mount !;• thought the plaintiff entitled to recover. Be gave judgment for plaintiff for C 27*». with cost* on :}«. rnidd'e *eab\ and t-j 6s fee for sccop'l counsel. «»-