RESIDENT MAGISTRATE’S COURT.

Temuka Leader, Issue 1155, 22 March 1884, Page 3

RESIDENT MAGISTRATE’S COURT.

Geraldine —Thursday, March 20,1884.

(Before H. C. Baddely, Esq., R.M. and Rev. G. Barclay, Esq., J.P.) UNREGISTERED DOGS. Eugene Lorgelly was charged, on the information of Constable Willoogby, with having, on 3rd March, an unregistered dog in his possesstion. The offence was admitted and defendant was fined 10s. John Bull was charged with a similar offence. Defendant pleaded not guilty, on the ground that the dog belonged to another person. The case was adjourned for a month, for defendant to bring forward evidence to that effect. CIVIL CASES. B. Gibson v. C. Reilly—Claim £2 2s, balance of account alleged to be due. Judgment by default for amount claimed with costs. R. C. Bowden v. D. Wright—Claim £7 9s, for board and lodging at Woodburj' Hotel and money lent. Mr A spinal! for the defendant. Plaintiff nonsuited, with costs and solicitor’s fee. C. E. Sherratt v. J. Grindle—Claim £6 10s on an 1.0. U. Judgment by default for amount claimed with costs. Dr Foster v. J. McCool—Claim £5 2s lOd. Judgment by default with costs. John Bull v. Frederick Newman —Claim £5 10s. Mr Raymond appeared for plaintiff and Dr Foster for defendant. Prior to the evidence being gone into, Dr Foster asked for particulars as to dates on which the claim was founded. The plaintiff stated he could not tell the dates as he kept no books. Dr Foster produced a document showing that plaintiff filed a declaration of insolvency on 19th May, 1881, and that he obtained his order of discharge in March, 1883. In support of the case, John Bull deposed that he carted ten cords of firewood, the last winter but one, about June, at defendant’s request. No price was fixed as to what be was to charge. He charged £3. Defendant had not paid for it, and on being asked for payment of the account said be would only pay him for carting a ton of coals from the Rangitata

railway station to his premises at Peel Forest.

Dr Foster here intimated that he objected to the whole account, as it was prior to the plaintiff’s bankruptcy.

Examination continued : It was a proper charge. He carted the coals about 18 months ago. That was since May, 1881, He charged 10s for cartage of a tank from the Rangitata Railway Station to Peel Forest. That was about 12 months ago. He asked defendant for payment about a month ago. Cross-examined by Dr Fosterln November last there was a case against him in that Court, and he had to pay about £4 or £5. The case was adjourned to allow the evidence of Mrs Newman. He did not at that time plead the amount he was now suing for as a set off, as there was not time. It took two days to cart the firewood. Three cords were not delivered in 1878. He could swear the carting was all done after he filed. Newman didn’t go to Timaru the day he (pVntiff) filed, tie had a separation order irma his wife, and the Magistrate, Mi Doctbam, ordered him to pay 10s a week towards her maintenance, but subsequently discharged it. He was not assisted by defendant to get that order discharged. Defendant might have gone round with a petition for signatures requesting Mr Beetham to discharge the order. He did not tell defendant that he would put that work against his account and so square it. Mr Raymond objected to this evidence as not relevant. It might be a subject for a set off for work done.

Examination continued : Six shillings a cord was the usual rate tor charging cartage, not 3s. He charged 10s for carting a tank. He didn’t charge Mr Button ss. His mate brought that up. He didn’t know who ordered the coals. They were delivered a few months apart. He did not charge for one ton of iron, as he was not certain about that. Dr Foster here stated that his side agreed to the cartage of the tank at ss, and contended that the other items were before the bankruptcy. Ee-examined by Mr Raymond; It is about 15 miles from the Rangitata station to Peel Forest, and he had to take six hours to go there and six hours to come back, and he had to use six horses. Defendant went with him to Timaru about three years ago, befoie the contraction of that liability, and he paid his expenses there and back.

Eugene Lorgelly, a carter, deposed that 6s per cord for cartage from Peel Forest to defendant's was a very fair charge. He never charged more than 15s for cartage of a ton of coals from the railway to defendant’s.

For the defence, William Newman deposed that he went to Timaru to see Mr Beetham, as some gentlemen thought it a hard case in regard to the maintenance order. He also took a letter from the Rev. Mr Preston to Mr Beetham. He gave the petition and letter to Mr Hamersley, who represented the matter to Mr Beetham who cancelled the order. After that was done plaintiff agreed to put the cartage i.ccj-inf. for ihe wood against the trouble he (Non man) had taken and thus square it, all but the coals. Mr Raymond again contended that the evidence being given was tantamount to a set-off

The Bench agreed with the counsel for the plaintiff, that the evidence given was a set-off or counterbalancing claim. The Act distinctly stated that a set-off must be filed in Court within a certain time and Dr Foster was trying to get a set-off established by a side wind.

After some further contention the Bench decided that the counsel f®r the defendant must bring a separate action for the set-off. Witness cross-examined : Plaintiff’made the agreement to cancel the account on November 7th 1883. He didn’t know that when a man filed his schedule, the trustee should be sued for amounts owing. The evidence being concluded. Dr Foster, in addressing the Court, contended that the plaintiff was unable to tell when the debt was contracted. His client had sworn positively it was prior to plaintiff’s bankruptcy. Mr Raymond contended that the onus of proof of bankruptcy did not fall on his client. He had proved his claim that the debt had been contracted at some time, and the other side must prove all facts relating to the bankruptcy.

The Bench retired to consider their decision, and, on resuming their seats, His Worship said they were unanimous that where such evidence had been given by the plaintiff they did not think any Court could give judgment for a p?aintiff who could not give any idea as to dates. In spite of the really hard work of plaintiff’s solicitor, who had fought well on behalf of his client, they were compelled either to grant a nonsuit, or to give judgment for plaintiff for 10s, cartage of the tank.

After consulting with plaintiff, Mr Raymond elected to take the judgment for 10s.

Judgment was rendered accordingly, together with costa and solicitor’s fee. After an adjournment for one hour the Court resumed business.

D. Clouston v. T. Sherratt (as Secretary and member of Committee of Good Templars’ Lodge. Geraldine), claim £5. Mr Raymond appeared for the plaintiff and Dr Foster for defendant.

Prior to the case proceeding, Dr Foster took objection to the summons having been taken out against his client. It should have been the Committee or the trustees who should have been summoned, not an individual member.

Mr Raymond contended that the defendant was a member of the Committee, in fact he had been the managing Committeeman and was liable to be sued in the nature of partners and could claim contribution under clause 27 of the Act.

The Bench agreed with the counsel for the plaintiff, after reading the clause over. David Clouston deposed ; I am a contrator residing in Geraldine. About 17th August last tenders were called foi the erection of a hall for the Good Templars. My tender was accepted. Defendant is the Secretary to the Lodge (conditions of contract and specifications produced). I entered on the work about 10th September, 1883, and the work was to have been completed within 10 weeks from date of signing contract. I built the ball in accordance with the provisions of the contract in a proper manner, and supplied the timber according to specifications. Defendant was Clerk of Works and passed the job in a formal manner. I got certificates for progress payments. I cannot say that defendant made com-

plaints in regard to the progress of the work. The first payment was made on September 28th. The work was done on or about 6th November. A complaint was made that I was to put the boards on the roof as close as I could, and I did so. I only dealt with defendant as regarded the work. On 7th November, after I had cleared up the hall, defendant came in and went round the building. He made no objection to the work, and Imk the 1 key of the front door of the hall and put it in his pocket, and we parted the best of friends. I had extra work to do for the, hall and saw defendant nearly every daj T . He told me a few days after he took the key that the Committee had decided to fine me £5. I think Mr Freeman was about the building at the time. I said if the Committee were not satisfied they could appoint a man and I would another, and the matter could be arranged. He never told me why the fine was inflicted, but I inferred it was because the roof boards had shrank. The same day or the day after, defendant came to me and said some of the contractors who had tendered for the building had come to him and complained in regard to the cornice mouldings—that I had put up a different one than that mentioned in the specifications, and that if beading like that had been mentioned in the specifications their tenders would have been lower than mine. He told me it was his personal wish that I should put up another moulding, and I did so. I gave up possession a day or two before this, and he said the work was satisfactory. I demanded the balance due to me of £5, which has not been paid. Cross-examined by Dr Foster; Mr Freeman and several other persons visited the building, as it was being erected, several times. I first heard a complaint officially as I was putting the boards on the roof. They were machine dressed. I told defendant I would do my best, and jointed every board I put up. The iron was on the roof when I first heard a complaint. I put the iron up beiore I did the weather boarding. The wood was not so very green, The roof was not properly designed by the architect. The boards did not shrink so much, but twisted and warped. There was considerable distance between the principals, and the boards were nailed angleways. The iron was put on without purlions. I did this work explicitly in accordance with the specifications. The specifications did not say that I was to put up the roof before the weather boarding. I did that according to my own judgment. I could not save the boards from twisting. I started as a builder 19 years ago, but have since been a wheelright, and have again turned builder. I served my apprenticeship in the Old Country. The same wood was used for the flooring as for the roof. The flooring has not shrunk. It was put down a little while after the roofing was done. I put in a piece of wood between the boards on the roof, and the defendant said I had better not go on with it. I never heard a discussion to the effect that it was necessary to take the roof off. I heard Mr Maslin say it was a pity the boards had twisted so.. He was the Treasurer, but I never considered 1 had anything to do with him. Tenders were called for the building, but I never saw it advertised in the Geraldine Guardian. A man told me that tenders were out. When defendant went round the building before taking the key he never said he wished to communicate with the Committee. I had the key of the ante room which opens'into the hall. I did not ask the painter to delay painting the roofing, but I would not like to swear so ; I didn’t ask him with any object in view. I put up the altered moulding about a week after the defendant said he was satisfied the work was finished.

Re-examined: Defendant signed the certificates. The Bench remarked that there was a surety to the contract; why did not the Committee take proceedings against him for the proper fulfilment of the contract ? Benjamin Weston deposed: I am a carpenter, and was engaged by plaintiff to assist in building the hall. I saw the key given to defendant but did not hear any remarks pass at the time. He went round with plaintiff with the specifications in his hand. I hare been a carpenter for four or five yoars, I should say that the work done by plaintiff was done well and carefully, and completed in a workmanlike manner.

Cross-examined : When defendant took the key the extra timber about the place was being sent away. I was loading the dray. Defendant was looked up to as Clerk of Works. The other members of Committee came into the hall frequently but no orders. The roof looks bad as it is, but I think it is the fault of the architect. My experience is not sufficient to judge. For the defence, Thomas Sherratt deposed : i am Secretary to the Committee, and have not had a great deal of experience in regard to the oversight of buildings. Acted as Clerk of Works, and was at the building almost daily. Immediately on the commencement of plaintiff putting on the roofingboards I told him he was not putting them up according to specifications, for they provided that the boards were to be put close and I could put my fingers between the joints. Plaintiff admitted the boards were not close together, and said he would put the others up better. He continued however putting them up the same way, and I complained to him several times after. He did nothing to improve the condition of the roof, To have it put right now from what it is to what it ought to be would cost £3O. The edges of the boards were not planed to fit them close together. The boards were green and not seasoned. (The Bench here read a clause of the specifications in which it stated that the timber was to be well seasoned). The boards were not put up straight in the first instance. There are sufficient purlnins for the roof. My experience is sufficient to answer this. I went to the building on Bth November last, taking the specifications went round the building and compared the work with the several clauses, I made a mark against those I considered finished, and a cross against those not finished. I said the roof was not in accordance with the specifications and told him I should consult the Committee on the matter, as there was to be a meeting that night, and asked for the key so that the Committee might go in the hall and see for themselves, I returned plaintiff the key on the following day. He was , then using the hall, and had some of his

I tools and timber in it. He was in possession of the hall and was making forms. I did not disturb plaintiff’s work, as he had the outer key of the outer ante-room, and therefore I did not hinder him, through having the key for one night, from going on with his work, I gave the opinion of Committee to plaintiff on the next day, that the building was not complete according to specifications. He had put up angle beams instead of cornice mouldings, which were not sufficient to cover the openings in some places. I also told him I could not pass the roof in its present condition, and that we thought the damage accruing to us was £5, and would not pay the whole of the money under the contract by that amount. He complained, but I left him understanding he was satisfied with the decision, and that was why we never saw the surety on the matter. He told me at the time he signed that the specifications were very plain, and was satisfied about the conditions. To-day was the first time I over heard him complain about the construction of the roof in any form. The wood was not thoroughly seasoned. The flooring has not shrunk in the least, and those boards were properly dressed. Cross-examined : I drew up the conditions of contract and have drawn up several before. In this case the painter was allowed to go on with his work by the contractor. I never admitted to the plaintiff that my construction of the roof was bad. I cannol swear that I never used the word ‘ fine ’ or ‘ penalty ’ but don’t 1 think I did. When I gave the last order to plaintiff I don’t think I made use of the word ‘penalty.’ By the Bench : I paid plaintiff all but £5, because wo considered that by going to that expense in altering the roof we could make it do, and we decided to fix that minimum sum and not be too harsh on him. We wore doubly lenient, and did not even deduct the 25 per cent, in accordance with the general conditions, when completed. William S. Maslin deposed : I am a member of and Treasurer to the Committee, and took an interest in the building. My attention was drawn to the tim ver brought down and stacked on the adjoining section. I have been in the timber trade several years. This timber was quite green and stacked out to dry, I noticed plaintiff start the roof at the north-east corner, before putting up the weather boarding. The boards were £ inch to f inches apart. I told him of it, jHe replied ‘ Oh, you wait and I’ll put it right.’ He then got the iron and put it on. There is no perceptible difference in the distance between the boards now than there was when first put up. I spoke to him on several occasions about the boards on the roof, and he said that he put them on before the weather boarding because some were twisted and warped before they were put up. If the boards had been seasoned they would not have warped. A long discussion took place at a Committee meeting in regard to the matter, and we were all of opinion that we couldn’t ask him to take the roof off again, especially as his tender was so low, and we thought it best not to hold to a ha-d and fast rule. All the certificates for progress payments have been produced. The last one can’t be found.

Edward Fronting deposed : I am a carpenter, and have seen the building but not the specifications. I have been apprenticed and was in the building trade for fifteen years. The roof was constructed very well by the Architect and there was no reason why it should turn out badly. It is not put up in a workmanlike manner. The boards were not shot straight or seasoned. The principals were well constructed.

By the Bench : There are sufficient principals and purlons in the roof for a building of that size and character. There is no fault to be found with the person who made the plan. The counsel for plaintiff here requested that he rmght recall his client for the purpose of giving secondary evidence as to the contents of the last order, which had not been produced by defendant, David Clouston recalled : The missing order is dated 29th or 30th December 1883. I was not at home when it was left at my house. It was a progress payment drawn on Mr Maslin, less £5 deducted as penalty inflicted by the Committee. The Bench remarked that there was nothing in the general conditions about the inflation of a penalty.

The Counsel for both sides addressed the Bench, who retired to consider their decision. On resuming their seats,

His Worship stated that in this case, with the best intentions, the Good Templars, or rather the defendants, had put themselves in a peculiar position. They had not produced a document, and secondary evidence had been given in which it was stated that the word ‘penalty’ was used therein. The Bench would have to give a verdict for plaintiff, and the defendant can sue for breach of contract. The Good Templars had put themselves in an awkward position in exacting a fine. They had acknowledged that the work was well done by paying the 100 per cent instead of 75 per cent in accordance with the general conditions, and had inflicted a line when they had no right to. It seemed to them that the defendant’s remedy, if any, was by way of cross action for damages caused through the alleged improper construction, by the] plaintiff, of the building. As to whether there was an improper construction or not they would not now decide. Judgment would be given for the amount claimed, with £1 Is solicitor’s and Court costs, Bs.

On the application of Dr Foster, execution was ordered to be stayed for a fortnight to enable the defendant to commence a cross action.