RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 2174, 12 March 1891, Page 2

RESIDENT MAGISTRATE'S COURT.

Gjskalbine—Tuesday, March 10,1891. [Before C. A. Wray, Esq., R.M.J earn, cases. J. T. Smith v. B. Hammond—Claim £23 0s 4d, for dividing into two blocks a 50-acre section on Eaukapuka Downs. Mr J. M. H. Tripp for plaintiff, Mr W. H. Postlethwaite for defendant. The sum of £l4 15a was paid into Court., All witnesses were ordered out of Court. In opening the ease Mr Tripp said the facts were that the claim was for dividing rural section No. 8605, Eaukapuka Dowds. Before entering' upon the contract for making this survey Mr Smith was cautious enough, to find out where the section was. He knew that the land had originally been very badly surveyed, the fences aDd roads were out, etc. After finding out about the isection he went to Mr Maslin, and said his charge would-be £2 2s per day and all expenses. Mr Maslin, after seeing his principal, made the arrangement for the work to be done at that price, hence the claim. Hammond had never disputed or repudiated the claim till now, and had never complained about the rate the work was done at.

John Tbomas Smith, licensed and authorised surveyor at Timaru, sworn deposed to meeting Maslin on the road' to l'imaru on May 29,1890, and being, asked by him about surveying land. Told him would like to see the map before giving an estimate, Saw bim again on May 31, 1890, and said he would do the work for £2 2a per day and expenses. Maslin said he would have to confer with his client and on June 7, 1890, he saw witnese again in Timaru and told him to go on with the work, saying it would takq

about two days to do. Witness replied that it would take two days or mere. Witness-bad had experience of the aame locality before that; it was badly surveyed, consequently he would nob take the work on piece work. Beckoned it would take four or five days. Started work on the 16th June. Found tha fences were out of position and had great difficulty in finding the old Government pegs. He was upon the ground five days, and his man (Geo. Buchanan), six. Was three days plotting the work at a house in Geraldine. Hammond was on the ground morning and afternoon for the first two days, and after that, occasionally. He made no complaint about the speed at which the work was beiuy done. Told Hammond at first there would be trouble with it. He found the Government peg was in the middle of the formed road, and on writing to the land office received instructions to shift the peg so as to leave a clear full chain for the road. Eendered his account for the work to Hammond, and went to see him about it on Feb. 11th last. He refused to settle and witness suggested that they should go and see Maslin, who had made the agreement. They did so, and Maslin repeated the conversation they had in Timaru about the price being £2 2s and expenses, and that it would take two days or more. While returning Hammond offered the sum of £l4, which witness refused to take. Hammond then told him to take it to Court. £2 2s per day was the usual charge for plotting, and the whole charge was in accordance with a scale of charges in force among the surveyors in Timaru.

To Mr Postlethwaite: His reason for not offering to do the work for a lump sum was because he knew that particular locality had been badly surveyed. He had had experience of it. He took his base line Irom the Government stones. Had used those same stones about 8 years ago. They were clear of the bush altogether. "Was certain he told Maslin it would take two days or more. Would swear he (witness) never made use of the words " one or two days." When he said it would take two days or more meant it might take four times as much. Would swear he was upon the ground and working the whole time charged for. The shifting of the peg was ordered by the Government Land Office, and had to be done. After seeing Maslin in company with Hammond told the latter he (witness) was quite willing to make a reduction in his charges. Hammond did not tell him he had got an estimate from another surveyor, and that although he considered it twice the value of the work he would pay it rather than go to Court. He offered witness £l4 to settle the matter, which witness refused. Was willing to take off a pound or two rather than go to Court. Had only charged for the 8 days he worked for Hammond. Had not charged him for travelling, pitching tents, or anything else. To Mr Tripp: There was some difficulty in finding the Government pins. The stones were also buried in the clay. Took him nearly a day to get a fair start, Had about ten chains of clearing scrub to do. They had a good deal of chaining to do. After the first day had still to look for old marks. Could only find one or two original pegs. Could not explain why the plotting took three days. Geo. Buchanan, sworn, said be was an annuitant residing at 'J imaru. He gave particulars as to their coming out, pitching camp, starting to work, and the work c'one, with the number of days they were at work. Had had a good many years' experience of survey work, and considered this rather a difficult section to survay. He deposed to their having some trouble to find the Government pegs, and to Hammond being there frequently. Plaintiff was some times working up till 8 or 9 o'clock at night, and in witness's opinion the work could not be done in a shorter time. Witness got 5s per day and his food. In reply to Mr Postlethwaite he repeated what he said re the difficulty in finding the Government pegs. They also put in a good number of fresh pegs, perhaps 50. It took them the whole of one day to put in these pegs. They also had four or five chains of scrub to cut to clear the old line. That took a day. William Shiers, overseer to the Geraidine Eoad Board, s aid he had had a good deal of experience with surveyors. £2 2s per day and expenses was about the usual charge. 'J he surveys upon the Raukapuka Downs never fitted ia with the old surveys. The old surveys w/sre very inaccurate. Had proved this by several independent surveys.

To Mr Postlethwaite: In these bush sections they always had a deal of trouble to get the work passed through the land office.

Mr Postlethwaite said the facts for the defence were that towards the end of last year defendant was the holder of the section in dispute. He had sold half of it to Mr Morrison at £8 per acre, and instructed Mr Maslin to sell the balance at £7 10s per acre, provided he could do so without any expense to defendant, either in survey or anything elsfi. Shortly after this he instructed Maslin to obtain for him an estimate for surveying the whole block. Maslin asked Smith if he would do this for a lump sua. Smith said he could not do it for a lump sum, but at £2 2s per day. He said it would take one or two day?. That was. to include plotting, Jetc. & Ham

mond often saw him at the work, but made no complaint about the time taken because the agreement had been made between Maslin and Smith. When Smith sent in his account Hammond took no notice of it, and theu hmith came out to see about it. Hammond and Smith went to see Maslin about the agreement, Maslin was astonished to see the size of the bill, and declared that Smith emphatically told him the work would take one or two days—three days at the outside—and advised Hammond not to pay the bill. After this Smith again saw Hammond in Geraldine, when Hammond told him he should certainly not think of paying the amount, seeiDg the agreement bad been made with Maslin, Smith offered to make a reduction, and then Hammond told Smith that he (Hammond) had obtained an estimate from a surveyor in Timaru, and, although he considered it twice the value of the work, ha would pay the amount of the estimate rather than go iato Court. This offer was refused by Smith. He called Robert Hammond, farmer, Geraldine, who deposed to the ownership of the land and his instructions to Maslin re the survey. He saw Smith Btart. Witness went up to the block about nine o'clock on the morning Smith started, and he had then found the first Government peg and made a start. During one of the days he had charged for Smith came down to town and said it was too foggy to work. In consequence of the exorbitance of the amount charged witness obtained an estimate from Meason and Marchant as to what would be a fair price for the work. He sent them apian of the section, and their estimate was £l4 Saw Smith after that at G-eraldine, who asked if he was going to settle. Witness said he certainly should not pay that sum, and Smith suggested going to see Maßlin. They saw Maslin, who stuck to it that Smith said it would take one or two days, while Smith said he had said two days or more. On their way back Smith said he was quite prepared to make a reduction. Witness then told him about having obtained an estimate from another surveyor in Timaru, and that although he considered it twice the value of the work he would pay it rather than go to Court, refused to take it, and witness said the matter would have to be settled by the decision of the magistrate. Had noticed the new pegs put in by the surveyars. Did not think there were more than a dozen.

In reply to Mr Tripp witness said he never complained to Smith about the rate at which the work was being done although he frequently saw him there, because the bargain had been made for the job, and Maslin had told witness before Smith went up that the job was not to exceed three days, all expenses to be included in the three days. Thought the work could easily have been done in three days, and thought so now. To Mr Postlethwaite: Considered the agreement had been made entirely between Maslin and Smith, and therefore took no notice of Smith being there longer than the time agreed upon.

W, S. Maslin, landbroker and auctioneer, Gerldine, sworn, said in consequence of instructions he had received from Hammond he saw Smith, Spoke to him about the survey, and saw bim again in Timaru on the Saturday following. Told him it was a 50-acre section they ranted divided in two. Smith said he could not state a lump sum for it. haid be might go out and do it at once, or it might take him a day or two. He said he would charge £2 2s per day, and there would be a man. Asked him if Hammond could not draw the chain for him. He preferred having his own man. Asked him if he could not do it at once. He said he could not, but would be in the district in a short time doing some work and would do it then. Did not know when he stated, but frequently saw him in Geraldine at the time. He supposed he was surveying the land. Witness then detailed the visit of Smith and Hammond to his office re the raatter as mentioned above.

In reply to Mr Tripp witness reiterated the greater part of his evidence. He would swear Smith said he would not name a lump sum, but that the job would take a day or two, and the charge would be £2 2s per day. l o His Worship: I distinctly understood from what be said that the £2 2s would include everything.

To Mr Postlethwaite: I considered from what he said that two or three days would be the very outside. GK 3>ing Meason, licensed and authorised surveyor, Timaru, sworn, said that in consequence of instructions received from defendant he gave him an estimate of the goat of surveying the section in question. His estimate amounted to £l4, reckoned at four days in the field and one and a half days in the office and the rest expenses. Gave this as an outside estimate to cover all possible expenses that could arise. Knew the land. Had sucveyedjadjoining it. Had seen the account. Considered the four days should do the whole thing. With regard to the plotting he could do it himself easily in a day and a half. All the expenses mentioned in the bill produced would be included in the £l4. Gave that estimate as if going to do the work himself and had t allowed liberally for expenses.

To Mr Tripp : The time for plotting and calculating was always allowed. When he gave his estimate he did not know the section had been recently surveyed by Mr Smith. Knew immediately afterwards. Knew fairly well what sort of section it was. Had done surveying there recently. Would give a similar estimate now, and would be very glad to do the work for the same money. Gave his own men 5s per day and keep. Had looked over Smith's account. Did not consider his charges for expenses were unreasonable. The time for going over the work was the objectionable part. To Mr Postlethwaite : When giving the estimate did not know it was for checking another surveyors account. When surveying himself charged for expenses over and above his £2 2s per day. . To His Worship: Knew this particular section. Supposing no difficulties .occurred the work should be done in a day or a day and a-half, but if difficulties occurred it should be done in four days at the very outside. If a persen could not do it in four days he could never do it. The plotting was a customary charge. Would not consider it doing a good days work to be searching about to divide a 50 acre section and take five days for doing it. Considered a day and a-half for plotting the outside limit. Actually knew this particular piece of ground. 1 bought it could not possibly take more than four days to do. This was the case. i

Mr Tripp said the only point in dispute was the contract. Both partiee were agreed that the charge was to be £2 2s per day, but neither was agreed as to how long it was to take, and if Mr Smith could prove that he was not delaying his time he was entitled to the full amount of his claim.

In giving judgment His Worship said that to persons who knew nothing about surveying this might appear to be a very heavy bill, but it must be considered that the survey had to be made for the purposes of the Land Transfer Act of which the Government have very stringent regulations that the work should be done in a particular way. Being an old survey no doubt made it much more difficult to find the old marks and make the survey agree ao as to get the certificate of the chief Surveyor. Mr Meason said he was positive he could do the work in tour days, but at the same time Mr Smith might not be so quick as Mr Meason at his work, but of course defendant had it in his own power to choose his surveyor. In the absence of anything to prove Smith was wasting his time seeing that £2 2s per day was to be the price of the work, he did not think he was justified in mulcting Smith because he was not so fast as he might have been. He could not interfere with the five days for the field work. With regard to the plotting he thought that was a charge very much in excess and he would only allow one day for that. The only alteration he could make was the striking off of £4 4s on this item. Judgment would be for the amount claimed with costs, less the four guineas and the £l4 15s paid into Court. Two witnesses 17s, and solicitor's fee £1 Is, were allowed. C. McGillicuddy v T. Corkery— Claim £1 6s 5d for balance of wages. Defendant disputed two days wages at 6s 6d, and claimed 18s for a week's board, Plaintiff had got a book in which he had marked off his time. Defendaat had not brought his account book, and rather than have to come again elected to agree to the suggestion of His Worship that he pay the money with costs 6s, less 18s for the week's board, which was allowed. The Court then rose.