R.M. COURT.

Wairarapa Daily Times, Volume X, Issue 3363, 18 November 1889, Page 2

R.M. COURT.

EKETAHUNA—FRIDAY.

(Before Colonel Roberts, E.M.) Inhabitants of Eketahuna v. Bryant, Sowry, and Hawkins. This was an action brought by the Eketahuna Iload Board to recover from the sureties nf Robert Bryant the amountof bond, LIOO. Bryant was contractor for tho Eketahuna-Parkvllle bridge, but on the bridge collapsing Bryant stopped work. Tho board took steps to get him (Bryant) to complete tho contract, but he informed tho board he was unable to do so. He asked the board to take overthe contract, which they declined, The position the board takes is that by non-fulfilment of contract, and by penalties accruing from day to day, tho board suffered damage to tho extent of the bonds, and sue for recovery. Mr W. G, Beard appeared for the prosecution, and Mr C. B. Morison for the defence.

Mr Beard, in opening, said he would put in as evidence the specifications, conditions, and agreement; also tho bond.

The first witness for the prosecution called was Mr George Jones, clerk to the bank at Woodville. He deposed that the bond was signed in his presence, but could not swear it was sealed at the same time. Ho presumed, howover, that tho seals were on or he would not have signed attestation clause.

Cross examined by Mr Morison: Could not swear it was sealed in his presenco, Parties did not put finger ,on seal. Wholo thing was done ratlior in a hurry,

Mr Morison said he would allow tlio bond to go in (subject to any objection ho might take), so tlmt the case could go on. Mr W. Bayliss, clerk to the Board, was thou called, Deposed that the documont was written out by him. He also put on the seals, aud forwarded it to Woodville for execution, It was returned to him in its present form. Memo of agreement was also signed in his presence by Bryant. Cross-examined by Mr Morison Attested the signatures, It was signed on 13th of February. Signed by members of the Board a few days before signed by Bryant, the contractor. Was signed by Messrs Anderson and Neilson, Did not remember any resolution these two members should sign. (On referring to the minute book of the Board, witness said there was no resolution to that effect.)

Mr Morison asked if there was any sealed authority for witness and Mr Anderson to appear.

Witness; No, A resolution instructing him to write to Mr Beard asking him to take action was passed on 7th July. The Board had copies of agreement. Mr Morison objected to the bond, as ho contended it was necessary to set out the particular breaches for which penalty would be enforced to comply with statute. Mr Beard said it was not necessary to allege particular breaches. The Board could sue for the whole amount without doing so. Witness, in answer to Mr Beard, said he did not remember the date on which work was stopped, The contract was not completed. There were many opinions as to why the bridge collapsed. Bryant attended a meeting of the Board and informed them ho was nnable to complete tho contract. The Board, at a special meeting, decided to inform sureties they would be held liable. Bridge fell on Oth July, and a meeting was held on tho 18th. Cross examined by Mr Morison: Mr Bryant applied for extension of time on the ath May. Tho contract should liavo been completed by 18th of May. Also applied for another two weeks. Mr Morrison, to witness: Bid you give notice to sureties ? No, And as far as you know they had no knowledge of this ? No. Can you produce Bryant's application ? No. After tho bridge fell Mr Bryant applied to tho Board to take over tho contract. Bid the Board do so ? No.

Further examined by Mr Beard: The Board declined to take oyer the contract. Subsequently let it again. The difference in contract pricu was a loss to tho Board of about i'so. Mr Morison asked is the ,420 paid to haul the timber out of the river was paid by tho Board on account of Mr Bryant, out of contract monies.

Witness said that Bryant waited on tlic Board stud pressed tliciu to lit™ the wreckage lifted from the river bed, Bryant said .lie iiad not funds to gel it out himself, mid asked Hie Board to find money to pay for it. It was decided to do so and the contract was let. The moil-.')' was paid in two instalments, one eiieijne of £lO to Bryant on i!7tli July, and £lO to Murrell on iitli as the Board had then taken over the work. Alex. Anderson, chairman of the Board, deposed: 1 signed conditions of contract. Mr Bryant carried on till tlic collapse of the bridge, through, in his estimation, weakness of the scaffold, IJryant came to liim on the Wednesday, and spoke to him about taking over the contract, They held no other conversation. Called a special meeting of the Board on the following Saturday. The Board decided not to take over the contract, Mr King was tinablo to inspect the wreckage for a week or two after the collapse, being absent in Masterton, The materal was eventually got out of the river by tender for the sum of £2O. Notice was given to Bryant to complete tliu work, but he did nothing after the collapse; the Board therefore called fresh tenders and accepted that of Mr J. Dawson, at a loss to the Board off la,

•Jno. King, G.E, said; lam the Board's engineer.' I was engaged to prepare plans and specifications for the work m question. Tim contractor was supplied with a tracing of plans. The contract had nothing whatever to do with scaffolding, As a private engineer Mr JJryant had applied to him for a suggestion for a scaffold as it was a difliculty ho could not surmount, Made a suggestion, and also drew out the quantities of iron and wood Bryant would require for the bridgo. Was paid by Bryant two guineas for the quantities, For tho sketch plan he had merely charged the draughtsman's fee, £1 lls lid. It was a frequent thing for contractors to apply to their engineer for such things, He had made certain complaints to Bryant as to the j way in which the work was done. He had not been attended to. Had granted progress payment amounting to 75 per cent on materials and work done, After the collapse of the bridge on the 9th July, he examined the timber, and on the 20th served Bryant with a notice that unless tho work was proceeded with within seven days it would bo completed at 'his exponso, .Tha

collapse was, ho considered, due to the want of sxperionce on the parUf the contractor. Immediate cause was the inefficient and badly constructed scaffolding. Had occasion to complain to Mr Bryant about the way in which the work was carried out; tho wholo of work, particularly the scaffolding. At the expiration of the seven days, work not being f commenced the notice was acted upon. Did not know exactly the JP Board's loss. Should say botweeuW L4O and LSO, besides delay caused by non-completion. Cross-examined by Mr Morison : Did'not recollect date of collapse. ; Thought it was about a fortnight after his last inspection. Scaffold was not erected in accordance.with tho plan he had given,beingirregular, deficient in altogether faulty in details of construction. Was quito sure if his plan had been followed tho bridge would have stood. Did not specify anything, merely gave a suggestion, a sketch, r not apian, which was quite a differeut thing. On examining timber in the river, discovered that tho breaks hadoccurredat theends oftbo chords, and in the ceutre of braces. Also found that no sill had been used to rest tho chords on. Centre of chords were not broken, which proved faulty construction.

Witness was cross-examined at great length by Mr Morison, but tho evidence elicited was tho same already given. ' In answer to Mr Beard witness said the whole thing was a combination of defects. No advance was ever make 011 the plant. ' This closed the evidence for the prosecution. Mr Morison raised several points of law. He said that time had been given to Bryant without consulting the sureties, Ho should apply for a nonsuit.

Mr Beard spoke for the prosecution and at seven o'clock the court was adjourned; on resuming at 8.80-tbo Bench decided to hear evidence for the defence. Mr Morison: I will endeavor to - satisfy the court that the is a part of the contract, The scaffold • in this caso was not strong enough to hold the superstructure, Mr King admits that the scaffold is a " minor operation." In section G it is stipulated that" the contractor shall provide scaffolding." The question arises whether Mr King was or\vjS not responsible for the scaffolding, it is so, the Board is'responsibrc. The question of Mr King being paid forpart of the work does not exonerate liini, neither does it exonerate the Board, The point is, the scaffold being approved by the servant of the Board, the Board is responsible for tlio negligence of its servant. Mr Bryant was then called, and said: lam ono of the defendants in this action. I saw Mr King on the 15th February at his office in Masterton, I asked him the bost way to construct a scaffold, as the Board's engineer, I told him I thought of putting a wire rope across, as the Board had ono I might use, but I could not get over the difficulty of bracing it. He at once dotted down •i scaffold he thought was the best. No question of payment was mentioned, 1 thought Mr Kings was cheaper than mine, so decided adopt it, and got the sketch from him noxt morning. I put up the scaffold according to sketch, i cotnuionced work on 12th March, Mr King mo three progress payment# I placed the bolls according to sketch, Mr King made no objection to me as to where the bolts were placed, nor yet as to size of timber, The bottom chord was l-lx'2, the top 12x2, the filling in both, Mx-1. 1 erected the scaffold according to sketch with the addition of tie rods. I had doubts about thuir strength but waived uiy opinion to Mr King's. I spoke to him tlie last time ho was on the ground. I told liini the people said tlio scaffolding would not hold. Mr I King said " if the next morning you have any doubts about the 1 strength of the scaffold at all, , which I have not, strengthen the in-braces," 1 did so with Bx2 lo tlio 1 original braces, I did all ho advised me to do. I had not anything like the full weight ot material on tho scaffold at tho time of tho collapse It showed no sign of giving before it fell. 1 was very careful in putting timber on. I examined tho structure after the collapse. 1 saw allwhe timber, and saw then that it wasgrat ? _ ' strong enough. 1 paid Mr King guineas for sketch of scafiold. To Mr Beard: I live in Woodville, I formerly resided at Waipawa. 1 built two small bridges tlicie. I have put up iron bridges in tho Old Country twenty feet high as foreman, This is the largest bridgo L have over contracted for. I examined the plans and formed my estimates from it. I had no plan of the scaffolding. 1 nover saw one of the sort before, 1 cou'd not run out llic quantities myself, but paid Mr King lo do it for me. 1 look Mr King lo be my master as engincr of work. I had tracings prepared for me at the former job. I am not a house-builder, but my partner was. I have had 20 years experience in bridge building us foreman. 1 was to be-paid for tho timber' fjr the scaffold MO. Alter the bridge was erected the timber and ironwork in scaffold was my own. 1 do not say that the plijji of scaffolding was the Board's. JjFvas mine as I paid for it. 1 got lirst progress payment of Ll Hi and I had only LHH worth of timber on tho ground. The Hoard's engineer responsible for tho work of scaffolc& 1 say that anything Mr King lean claim payment from tlio BoaiVv for, I was paid in all L2lB. lam not a man of money, but have a little. After the fall of the bridge I consulted a solicitor to as what action I could take in the matter. I waited four months before taking action, 1 thought 1 would wait till this action came off before I took action against the Board, as T thought this would strengthen my own ease. After the bridge _ collapsed I waited on tho Board and asked them to take the work over as 1 had not money lo complete it, and asked the Board to releaso my suretios, The Board declined,

fie examined by Mr Morison: The scaffolding should bo strong enough to carry tho bridge before iUjvaa bolted together, •Joseph Sowry said: J am a contractor and have been one for 'thirty eight years. Am now mayor of Woodville, Tho custom is that tho builders pay the architect for plans of scaffolding. Cross examined: If I wanted quantities made out I would pay for it, I have seen the plans of the scaffolding and am aware they were not prepared at the timo the contract was signed, lie examined: If ] had been Man putting the bridge across j won Id not have put it on that scaffold I coisidor that if I had a plan

supplied, the party supplying it would bo responsible. This closed tlio case for the defence. Tlio Bench intimated that as (hero wore points raised by counsel which would require consideration,, it would reserve its decision.