DISTRICT COURT.

Tuapeka Times, Volume III, Issue 124, 23 June 1870, Page 6

DISTRICT COURT.

(Before His Honour Mr Justice Gray.) Tuesday, June 14, 1870. Roberts v. Mears. — Damages £100, sustained through violation of agreement. Mr. Copland for plaintiff, aud Mr. Gooday for defendant. Mr. Gooday applied to have the case • Mears v. Roberts tried first. Mr. Copland replied that the application "was a blank one, and he (Mr. Gooday) should have something material tp say in support of his application. As yet there was nothing before them to justify such an application. He 'would go so far, if his learned friend was of the same mind, to join the two, and treat them as one. Mr. Gooday had no objection to consolidate both actions. Mr. Copland then opened this case by a lengthy address, setting forth the grievances of his client, the faulty manner in which the defendant had constructed the building, the great delay that had taken place, and the contempt always shown by defendant to the letters and suggestions of the superintendent of the building. He finished by severely criticising the conduct of the defendant, who seemed desirous of damaging the plaintiff in every possible way without benefiting himself in the least by such conduct. George Morison, being sworn, was examined at great length by Mr. Copland. The examination of this witness, who was the superintendent . appointed by Roberts to inspect the workmanship of building, went to show that in every instance, from the foundation to the roof, the specification was not complied with j and although he had repeatedly warned the defendant of this, his notices were never heeded, and the defendant did as he thought proper. A short time previous to the 2nd of May he had valued the amount of work done for the purpose of enabling defendant to get progress payment of 75 per cent. He found the amount of work done to amount to £234, and Roberts had paid £100, and gave to defendant a dwelling house on plaintiff's farm, valued at £70, both sums amounting to the full amount of payment due. At the conclusion of the evidence a conversation took place between the judge and counsel, which was partly inaudible. It seemed to the effect that the judge might see it necessary to recall Morison at some future stage of the proceedings, to which the counsel for defendant replied that he thought that when he was done with the witness His Honour would have enough of him, and that he would not again require him. Cross-examined by Mr. Gooday. — I have been a builder since I was 15 years of age. I never was a shipbuilder. I have been a builder in the colonies since I came to them, some eight years ago. I can't tell how many houses I have built — a good many. I could not tell you within a hundred or two. I have built at least some half dozen in Lawrence. I never was apprenticed to the mason trade. (Here follows a long course of evidence of no interest to the general reader.) The mason work, however, seemed to have particularly engrossed the mind of counsel as every particular in regard to that work was brought out. The composition of the mortar also came in for a fair share of attention. At this stage it was evident that some sparring was likely, as the counsel insisted upon positive answers being given to his questions. On witness being asked how he mixed his morter, he very coolly replied, "I generally mix it with a shovel." Repeatedly duriug the evidence the witness remarked that he would be only too happy to answer any question put to him if done in an intelligent form. Upon his being asked about the state of the foundation and the back wall of the building, he replied that the building showed signs of weakness ; inasmuch as it was bulged out in the centre, and a good many cracks were visible. Being pressed to give the size of the cracks, he stated that they were so often filled with mortar that he could not tell. Here the counsel held up a quill, and asked Mm if it could be inserted in the crack. The witness said he thought it could. Mr. Gfooday: Was the crack half an inch ? Witness : Could not exactly say. Mr. Gtooday : Could you put a sixinch board into the crack ? Witness : If you will tell me which - way, then I can give you an answer ; certainly not on its flat, but you can do so on its edge. Nothing came out in cross-examina-tion to shake the evidence of the witness. John Roberts being sworn, ' gave evidence in corroboration of previous witness, and that his loss in consequence of non-fulfillment of contract would be about LISOO. This witness gave his evidence in an unsatisfactory manner. So much so, that his own counsel told him to give more direct answers for his own sake. Mrs. Roberts being sworn, described the state of the building, the discomforts endured, and the losses sustained, the injury to health, and various other matters, anything but complimentary to the contractor. At this stage of the proceedings, His Honour went to inspect the building. Mr. G-ooday addressed the Court at

some length, when he called the, defendant, who, on being sworn, wasj examined at considerable length The \ whole of the evidence went to show that the contract in every particular was carried out faithfully, and that his reason for stopping the work was that he could not get from plaintiff the progress payments as laid down in the agreement. Being cross-examined by Mr. Copland, it was perfectly evident from the love that existed between the parties that a considerable amount of sparring would be displayed. J. Whittet being sworn, was examined in reference to the mason work, he being the contractor. His evidence went to prove that the work was done in a workmanlike manner ; that the foundations were good ; that the mortar used was of fair quality. The back wall certainly had a little round or bulge, which he explained was caused by the wind operating- on their line, but it did not in the least interfere with the soundness or strength of the work. The cracks visible in the wall were occasioned in consequence of part of the wall having a foundation of clay, and a part on the solid rock ; that on clay naturally from the great weight occasioned a little settling ; the extent, however, was not appreciable. Mr: Copland cross-ex-amined him severally about the foundation and the mason work. The bulge or hump on the wall he said was nothing. The learned counsel asked him " if the hump was on his back, did he think it would be anything ? " He answered that it would not be very much on his back, but it might be something on his (counsel's) back. He said the round or hump was about four feet from the ground. " Just where it would naturally appear on a man's back," replied counsel. A few jokes were passed between the combatants, which contributed a little to dispel the monotony of the case. Stevens, another witness, was called and examined. His evidence went to show that the workmanship was done well, and his measurements agreed with that of previous witness. Alex. Cormack, being sworn, was examined. This witness is a carpenter on the Blue Spur. He was sent for by defendant to inspect the work, and and the atnouut done. His examination went to prove that the workmanship was done in proper style. His valuation, however, was considerably higher than that of the superintendent of the work. It appeared, however, that he had made a mistake in the amount of timber ia and around the building, Morkon making it 54-M, aid Cormack upwards of 7000. Here the Court was adjourned for a short period, to enable the carpenters to compare their lists. They could not, however, come to an agreement. They were then sent to the building, and on the next day to bring in their report. This being done, it was found that Morison was correct, and that Cormack had fallen into a mistake for which he accounted. A considerable amount of other evidence was produced, but of no interest. At this stage an atterrfpt was made 10 arrange the matter extrajudicialiy. The parties had almost arrived at a settlement, only £10 being in dispute, which was claimed by defendant as a portion of expenses incurred. To this, however, the plaintiff demurred. At this stage the Court adjourned, and it was to be hoped that the matter would be settled. In the morning, Mr. Copland stated that he was prepared to settle the matter himself, irrespective of his client, when he was met by another demand by defendants ni reference to the house that defendant had taken for £70. The plaintiff's counsel stated that the conduct of defeudaflt was most singular. He had given way to him in every way — in fact gave him his own terms, and the moment he agreed to them, up started a fresh claim. The course was most irregular. He should now give the matter up, and leave it entirely in the hands of the Bench.