DISTRICT COURT.

Taranaki Daily News, Volume L, Issue 61, 25 November 1907, Page 3

DISTRICT COURT.

(Before his Honor, Mr District Judge Haseldcn). CLAIM FOR DAMAGES. Mr Hutehen, in opening, said the Tapnae tunnel hud been designed to ob- | viate a loop in tlio Tapuae stream and' to do away with the necessity for al bridge, giving the stream a straight, course. The second contract was for a filling or embankment to fill the old bed of the stream to lie used as a road. way. Whilst the two contracts were supposed to be independent, the earthwork was in a way dependent on the tunnel, which was to have lieen completed in nine weeks and the earthwork

in seventeen weeks. Unexpectedly difficult, country being encountered the tunnel was not finished till the end of February. When ir was finished, the outlet was five feet higher than it should have been, although it had been done according to the engineer's instructions. The specifications had provided that the earthwork contract could not be commenced until the tunnel was complete, "wing to the raising of the tunnel mouth, the river was unable to tape flood-water, and three wash-outs ocenr-

enrred, causing great loss to the contractors. Then the Council lowered the tunnel, and whilst that was being done the plaintiff had to discharge his men. In November the Council decided to give notice to terminate the contract, and in Decemlxr decided to put on men to complete the work at the contractor's expense. During absence from Taranaki the contractor was taken ill, and went

to the Wellington Hospital. Whilst lie was there the Council resolved to put on men to complete the work, and in .May the engineer told the contractor he intended taking over tlie work. Mirford_snid he would not allow if, and the engineer threatened that he would not pas's any further progress payment and that ho would tefl the men the con-

tractor was unable to pay them. The engineer disarmed active opposition by promising to rccomn.Hid pivment for additional earth used in the embankment. The forfeiture clause could not be exercised after the expiration of (he I contract time (counsel quoted authority), but the Council had done so. Tn May the Coune" took possession of (he work, the cont' tor's tools, plant, and teams, and paid <'■..■, workmen from H>rford'< monov, T r ->rd beenmimr merely an onlookev. Tl- ■• whole of the eontract money was 1. d up, and the Council brought him ii: ! debtor. But, allowing "extras," thev made him a paymerit. In April or May the Council had a cnitch-water tunnel or culvert j

constructed to carry off storm water under the road. Timt tunnel was So floii.-trncte,! Hint at its outlet It washed away portions of tlie embankment. The Council afterwards, at its own cost, extended thise ulvcrt or tunnel .so that any furl her damage was obviated. He sulimiff'\l that alleged carelessness and negligence of the contractor was altogether irrelevant, for the contractor had lieen prevented by the Council from carrying out his contrast. With a: view of shortening proceedings, and upon the'suggestion of Mr flow the Court and principal witnesses visitM tlie scene of the work. T'non resuming, flic plaintiff was put in the box. ITe said the engineer gave witness' men specific instructions as to the grade required in the tunnel. He lost about f-2r,0 on the ennlraef. The engineer told him he was quite satisfied tlTat the tunnel woul,] take the water

of the stream. Witness then prodded with Hie filling. After the w.shout. '••< «i.v (he engineer, and suggested ih"t the Council should lower the mouth of the tunnel, but he declined, preferring the erection of the dam. This dam was erected, costing the contractor 'tfifl for labor and material, but he had not heen paid for this"work. A fifrlher flood in Mar washed awav the dim and about ].->nr) yards of earth. TTc decided to do nothing more until the work had been properly protected bv the Council After the next meeting of the Council fenders were called for lowering the mouth of the tunnel. Whilst that lowering was being done, the stream was running in its old course, and it ws impossible to work at Hie filling. He got notice in October "to proceed with the wovk. nn,l be did sn. starting at the lon "ml. Tn Vnvember and December lie received notice that the County Council, ncf/rnj on t!7e engineer's renort that the

contractor was unnecessarily delavini? I the work, would nut nn men to complete it ami cliiirW Ine'Tosf to flm eon tractor. TTe made no 'nswer. lint went on with the work. Tn Mav ihe engineer, with Mr Montefiiirc. came out to Tapuae. and said be would take over the work. Witness objected, and said he would go down the coast and get ihe money somehow. Witness agreed in hand over the contract provided that the Council would pay the difference be-

twoon the batter specific and tin- actual batter. Cross-examined: TTo lost C 250 on the tunnel poutrnrt, TTo admitting writing to thp Council in April, infill, staling Ins loss on flip tumid contract was £lf)2. That letter was written nn Ilip suggosHon of Mr Skinnpr. Tie was unaware that Hip tnniipl was too high. Thp engineer interfered with tlio niPn and told tlipni to keep flip (unnol up. Up h-'tl novpr liad a pontrapf before to fill

thp hod of a stream. TTo adnnWfl sendine tlip following Mtor:— HtTi August. 10(17—With reference to flip Tapnao pontrapf wliTpli lias reppntly boon pomplotod hv Iho Council at "iv expense, f re-nee) full v point mil Hi-t in mv opinion it will lip vovy unfair to mo if some of tlio amounts claimed by Mr Montefioro. tho county's overseer, aro paid to him. Tho county, aftor taking charge of tho work, was at liberty to use my bullocks, drays, implenionts. and tools, and to charge mo for all labor. Mr Montollore, liowevor, brought some toams of his own to the work, while my toams woro in consequence forced to romain idle, and T understand bo now wishes to oharfro tho post of his teams against the contract. TTp is also, T hplievo. eliarging fls per diom for men's wages instead of Ss as previously paid by me. T must Ihereforo ask yon to proloet my interests in

the matter, and not allow any payments to Mr Montefioro for teams and wages wbiob were unite unnecessary to tho completion of tTio work. With regard to liiy refusal to permit Mr Montoflore to use mv tools subsequent to thp completion of Ihp contract, T wish to say that this was in nn way intended In hami,er iho f'onuoil. T think- T should ho entitled to any benefit from the extra work done by the Council, but if Mr Montcliorp is to do this work, then lie must provide his own tools and implements. J His Honor: Tn (ho face of that lot- I tor how can you contend that the work i

wfc wrongly taken over? I Cross-examination continued: WTien j ho returned from Wellington ho was in : financial difficulties. (Further quostions as to his financial position were ruled nnO. I The next witness was John T!. Mao- ! kav. cmrinoor. nf Stratford, who had ! coim.uted that ah..ul iillllll vard- of earth i were taken out and washed awav. According to the plan the tunnel ' should have been Iwo feet lielow the river-ben" i Vow. a Her being lowered, if was still

two fret, almvc it. A dam in turn the j stream inln its; new course would have to be a solid struct lire, erected quite as lii«h as tl»> top nf tTio tunnel. The tiiiiiicl whs not oven now in accordance willi (ho plan. •I.i-cpli I.nlib. wlin constructed (lie lii<r tunnel for Harford, said that he pel liia directions from Harford direct. I'hoy took Hip levels themselves, not from the engineer. His Honor objected tn Vr Hutchcn's

next questions, holding tliat it was ridiculous to attach any importance to any conversation between a contractor's laborer and the engineer of an incorporated liody. Win. Evctfs, county foreman, was fulled. Imt was not examined. This dosed the case for the plaintiff, and the f'onrf adjourned fill 7 p.m. The statement of defence admitted the making of the contract, and that the contractor commenced' the work. Imt denied that the plaintiff was ready and willing to complete the work in terms of the ( tract. The ( 1.-fi-it<l :l nt j

drniert Unit tin- Council wronfffullv M'izcil and took possession of (lie work, and tluiri prevented the contractor coniplclinjr it. «Nt said that the pluintiir, soon after commencing flic contract. Iic(•111111" negligent and careless, and failed to complete in contract time: that tlie negligence was continued, and that the defendant was compelled in December to employ workmen to do certain urgentlynecded protective work on'the contract: Unit early in .March, 1907, the plaintiff ! '"dug still in possession of the works, ■ went, away from the district, and remained away r«v nearly two month*, leaving In del.i to his workmen, anil without having made am- delinife arrangements for cumin,/ „ii and compiling the contract. Short I \- after liis departure, his workmen refused to work unless payment of their wages wa* assured to them hy the defendant; whereI upon in April the Council, in exercise of j its powers under the contract, engaged | workmen, and .took all the necessary steps to complete the contract, whioh' |it accordingly completed in August, Miff. II »ujAlteratioa were mia ia,

the level of the large tunnel, it was done by the plaintiff himself, without the defendant's knowledge or consent. The defendant denied damage by the catehwatcr tunnel, and repudiated liability for the moneys claimed. For the defence, Mr. Roy called •John Skinner, county engineer, who was examined at some length. He said the tunnel was lowered aa the result of |

an agitation amongst the settlers, whc seemed to coerce the council. The damage from the small tunnel had been allowed iu the "extras." There were no means of ascertaining the amount of earth washed away. Jfen were scarce at the time. Uad a proper dam lieen erected at the start, there would have been nn wash-outs. The council's dam turned into the tunnel the biggest flood experienced in 30 or 40 years. He and the council made a literal allowance in regard to the change of slope. The council did not forfeit the contract, but merely, in terms of the specifications, completed the work at the contractor's expense. Witness opposed both the i lowering of the large tunnel and the construction of the small tunnel. C'rohs-examined: Extras were £ls for |

small wash-outs. .-CI for putting a tree. t;"> for a culvert, .c(> for general work of use to the pouncil, and the balance of £127 12s (id (the final payment) was for the batters. He had lieen i|iiite satisfied with the tunnel as completed, but had never ordered the departure from his plan. He was satis-' lied that Harford was not fit to superintend the work. •lohn (Veil Montefiore, contractor, said he had told Harford, just on completion of the contract, that he had j kept the tunnel too high, but Harford insisted otherwise, and that it would do all that was required of it. Harford told him he considered it unnecessary to make any protection. Cross-examined: Harford had, in handing over the work, said he was perfpctly willing to take his (Montefiore's) reckoning of ,'xtras, and so on. Robert. Hugh Cameron, a contractor with 2,"> yeans' experience, said the plans were sufficient. In diverting a stream the dam would need to be carefully made.

Mr. Roy, replying to the case quoted l>y counsel for the plaintiff, said that the case did not apply. There defendant entered and seized and avoided the contract, lint here the council had carefully avoided such action. Addressing the jury briefly upon the facts, he said that the great points in the claim were that, the council raised the lied of the tunnel too high, and in regard to the second contract, the council wrongfully entered and took possession of the work-. Boiled down, the evidence showed Harford's loss was due to his own fault, either in raising the bed of the stream or in taking inefficient steps to stem the river. Extras, he thought, had been very liberally allowed for. He asked the jury to discard the general belief that a local body was fair game for damages. The council had had to deal with a man who had spread a seventeen weeks' contract into eighteen months, and had treated the contractor very leniently.

-Mr. Hutch™ contended Unit there had been really no defence raided, and the statement of claim had been upheld by the evidence. The plaintiff was entitled —on the evidence of the county engineer and his clerk of works—to damages in connection with the small tunnel. It was absurd to suppose that the contractor would have altered the grade of the tunnel without the engineer's authority, and the council must be held responsible for the,engineer's departure from the accepted'plans. There was no doubt that the high intake of the tunnel was responsible for the washout. There was no justification whatever for the high-handed act of the council in taking charge of the contractor's plant. Jn respect to the handing over of the contract, the position of the parties was like that of the highwayman and the accosted traveller.

lih Honour said Mr. Hutclien had quite misconstrued the case of London and >'. W. Kailway Company. The judge in that case had expressly stated that a clause sueb as that in this case could have been enforced after the contract time had expired. .Air. Hutchen quoted further authorities.

Counsel having been heard, his Honour summed up. Briefly, the position was this. Here were two contracts, taken by the same man. He made the tunnel, and made it so high that it caused an overflow. Who was to blame? Hither the tunnel or the contractor was at fault, and if it had been the tunnel, would not this plaintiff have made a claim for compensation? But he did not, merely requesting ''kind consideration." In all the correspondence there* was no mention of any claim. One letter seemed io show that he acquisced in the arrangement for the council to complete the contract. He submitted the issues to the jury, who were answered at 11.4(1 p.m. as follows; Did the plaintiff in part execute the work referred to in the contract?— Yes. Was he ready and willing to complete such works according to the said contract 7-Xo.

Did llii' do fondants wrongfully seize and take possession of the said works, and prevent the plaintiff from completing the said contract!!—Xo. Did the defendants cause the tunnel mentioned in the statement of claim to lie constructed at :i higher level than spocilicd, and so cause the plaintiff's .voik and materials to be washed away and destroyed V—No, they did not alter it; they allowed it. Did the catchwater tunnel constructed

by the defendants wash away and destroy the plaintilfs work and material? —Yes. What sum, if any, is plaintiff entitled

to recover (a) in respect of work actually done by plaintiff, fully compensated already: (b) for damages— .CO2 ITs, being for 188(1 yards spoil at 8d per yard. His Honor remarked that he was satisked that substantial justice had been done. The Court rose.