RESIDENT MAGISTRATE SCOURT

Thames Star, Volume XVI, Issue 5014, 6 February 1885, Page 2

RESIDENT MAGISTRATE SCOURT

THIS DAF. (Before H. Kenrick, Esq., E.M.) . CIVIL SIDE. Judgments foe Plaintiffs. Culpitt v. Maokay—Claim, £3 10a for a pack saddle. Judgment for amouut claimed, and costs, 11s. Defended Case.

NEW EUEEKA G.M.CO. V. J. C SMITH

This was an action brought for trespass on a flume at Otunui, for which £7 damages wore claimed.

Mr Miller for the plaintiff (Company), and Mr Lush for the defence

E. McCullougb, manager of the Com', pany, deposed that J. C. Smith was a contractor for tbe erection 0/ a flume for the Company, and he had pulled down a previously erected flume, at two ends of it, belonging to the Company ; he had no authority frcm witness or from the Company to do so. He threatened to pull down the rest of it if he wanted it; he pulled down nearly three chains of it, which .would cost about £7 to replace. To Mr Lush : The contract held by Smith was to erect a flume to work a new wheel erected by them, the two races spoken of were continuous but not one race. The - specifications of Smith's contract provided that he should use tbo timber in the flume standing. Had never told him not to touch the flume in the Otunui creek.

Re-examined by Mr Miller —The company intended to utilise the standing flume from the Otunui stream for the tables. Smith's contract was to erect a race from the Maungakirikiri stream. The plans and specifications in no way referred to the Otunui creek. The Umber in Otunui flume would not be of the size mentioned in Smith's specifications. The contract was for labor and material.

John McDermott swore that be was a tenderer for the erection of a flume for the company. Understood the old flume was to be used to build the new race, but he distinctly understood that the Otunui flume was not to be interfered with. Considered £3 a fair price to put up the piece of flume at the battery.

The defendant's case was that the whole of the old flame could hare been used if required, according to the specifications. J. 0. Smith, the defendant, sworn, stated that he had taken a contract for the erection of the flume from the Maungakirikiri stream for the company. What had been described as two races was one continuous race. * The water flowing down the Otunui Greek was out of the mines. About 3000 or 4000 feet of timber was required to carry out his oontract if he only used, the old flume. The mine manager told him he would want very little timber to do the work ; he tendered on the assumption that he would get the timber in the other flume.

To Mr Miller: It would take at the very least 25C0 feet of timber to do the work. He had put down about £4 10« tor timber in making up his tender.

Francis Geraghty, contractor, deposed that he had tendered for the flame. Mr JVJLcCullough, the manager, told him that he could utilise the old flume. If he had got the work he would have expee'ed 165 chains of the old flume. '

John Brown and Bobert McCormick gave similar evidence. Mr Lush and Mr Miller addressed the Court, and the Bench said it appeared that the defendant had erroneously; but in good faith, come to the conclusion that there was only one flume, and he could use it all if he required it; but the defendant had not taken the precautions he should have taken to ascertain what be was entitled to. Judgment was given, for the damage done, which was assessed at £3, and costs £4175.

JVC. SMITH T. NEWEUBEKA G.M.CO. Claim, £94 15s. Mr Lush for plaintiff, and Mr Miller for the defendant company. This was an action to recover the amount of a contract taken by the plaintiff from the company. JVC. Smith deposed to taking a con« tract for the erection of a flume at Otunui for the company, for .£lO9 15s. Had no plan of the work except a seotional one ; this did not show the coarse of the race ;, followed tbe pega on the ground. Be-, ceired a payment of £20; after that; worked for three weeks, and asked the j manager to pass the work .done, i and he refused to do so, laying i the work • was not. complete. Was' .willing to complete it, he was compelled to j cease working. The manager wanted a j ditch cat where it could not be done ; no j complaints were made as to the manner in ! which the work was done. The manager had the earth under a portion of his work dug away, as he said the ground was not solid-. His workmen left him, as he had no money to pay them, owing to tbe company not paying him. ' To Mr Miller: The work done by him was not approved of by the manager, who had only once pointed out defects in his work. There were fully 18 chains of trenching done according to the specifications. Had two men working on wages with the four in the party. Fredk. White, sworn, stated that he and thereat of the party bad done their best to carry out the contract according to the specifications; they would have finished it, ljut it was impossible to follow Mr MoCullagh's directions; Mr Miller cross-examined this witness at considerable length, re details in the making of the race. To the Bench: The sole reason for our stopping work was because we coald get no progress payment; valued the complete (or very nearly complete) work done at fully £70. '

John Allen, who boasted considerable experience as a contractor and inspector in connection with railway works, deposed that be knew the contract in question; the whole contract could be finished for £50, and rery little labor was needed to finish 25 chains of it.

Jas. Dare corroborated the details given by previous witness. This closed the case for the plaintiff, and Mr Miller then addressed the Court, holding that no case bad been jmade out, ■s only a rery small portion ofthe work

bad been completed according to the specification*, and the plaintitf had been paid more than was really due him on account of work completed. Mr Lush also addressed the Court, maintaining that the work was fairly well done, and his client was entitled to pro* grcss payments. His Worship summed up, and held that the plaintiffs had no right to throw up the contract, which they were bound to complete whether the 75 per cent, was paid or not; the nonpayment of that percentage would give them a ground of "'" , action, but did not.entitle them to throw up tbe contract.- He must enter up a nonsuit; with costs- against platotUF, .w