R.M. COURT.

Wairarapa Daily Times, Volume IX, Issue 2887, 1 May 1888, Page 2

R.M. COURT.

MASTERTON.-MONDAY,

(Before S. Von Stormeu, EM)

A Bush Palling Case.

W. Brannigan, John Hunt, H. Gasson, and P. Hanson v H. Burling, claim £IOO, being balance due on a bush falling contract at Tirauinea, near Alfredton. Mr Pownall for plaintiffs, Mr Beard for defendant. For the plaintiffs it was stated that the contract was for falling 488 acres of bush at 23s 6d an acre all round. Tbe total original amount due was £573 Bs, but of this £470 had been paid by defendant, and of the remainder £3 8s was foregone, so aa to bring (he case within jurisdiction of the Court. For the defence it was represented that the contract only set forth that 400 acres of bush were to be cleared, and that, moreover, the plaintiffs in assessing their claim had done so by taking surface measurement instead of horizontal or surveyor's measurement which the contract specified should be adopted. The difference in measurement from this cause gave the plaintiffs it was alleged an advantage of 37 acres. There were besides this 32 acres-of scrub wrongfully included owing to plaintiffs computing the area right up to the traverse lines instead of, as instructed, only clearing up to the edge of the bush, and also 19 acres claimed for, on which neither bush nor scrub existed, After hearing evidence, the Bench gave decision as under: regards the estimated area which the plaintiffs stated should be surface measurement, and the defendant horizontal, it was ruled that the evidence of Messrs Ward, Benge, and Gnrotti was conclusive on this point. Mr Ward stated that the latter was the rule in the North Island,' and the other two witnesses deposed that from hearing the specifications read (which however had been lost by the oonfcraotors before the contract was completed) they could say that it was expressly stipulated in the present contract, The Court, therefore, decides that the measurement correctly to be taken in this case, is horizontal or surveyor's measurement. On the second point it had been proved that there bad only been 32 acres of scrub cleared, and there could be no doubt it was not intended, under the agreement, tbinclude this scrub in the contract for payment at the same rate as bush, but at the same time, though not in the specification, the defendant had the ■ advantage of the clearing which had been done in this respect, and it would be allowed for at the rate of 4s—its worth—instead of at 23s Qd, as claimed. Judgment would therefore be given for the plaintiff for £6 Bs, and no costs would be allowed, seeing that plaintiffs' claim had been so reduced, and that it had been at an excessive rate in charging for a case in which light work was done, the amount which would be earned for clearing heavy bush.