R.M COURT

Wairarapa Daily Times, Volume XIII, Issue 4166, 16 July 1892, Page 2

R.M COURT

• MASTERTON.-FRIDAY. '(Before Colonel Roberts, R,M.) A FENCING DISPUTE, B. Wadhani v. D. McKenzje.—This was a claim for £25 5s for the erection of 50 chain of fencing. Mr Pownall for plaintiff and Mr Beard for defendant. Benjamin Wadham gave evidence of taking thecontraot and the arrangement made, which was to be at the rate of 10a pet chain. The kind of fence was never specified, except that it' was to be a medium fence, wirenetted, The job took nearly two months, A man named Andrews went in mates with him on the contract. Defendant oame along within a few minutes of finishing and in reply to a request to square up accounts replied that he could not on any consideration until another- job was finished which he (plaintiff) had undertaken. Defendant offered to advance a few pounds, but refused to measure up until the second job was done. Never heard any complaint up to tlw present date regarding the fence, Mr MoKenzie saw them at work twice and sometimes three times n week. On one occasion when the fence was near completion Mr McKenzie pulled up a post and complained " that it was not the thing," Witness told him all right, and replaced the post with another. The netting was put on last. The fence was completely constructed when the netting was brought by Mr~McKenzie. Complaint was made about the way the netting was put on, but this was because the netting was three feet instead of two feet six, as agreed upon, Had contracted to put the netting five inches in the ground. Had measured the job and found it 50 chains, SO links. No other objection to pay was ever adduced exoept the non-completion of the second job. By Mr Beard: Arrangements were made by Mm alono at MrMoKenzie's house. Quite positive that nothing passed between 'hem as to the kind of fence to be erected, Agreed to the job at 10s p-: oliain, Mr McKenzie said he wanted a fence something like Jauiea'. Would swear that Mr McKenzie never showed him the specifications of James' fence. Quite sure nothing was ever said 'about an agreement. The fenco was, when completed, a proper fence and rabbit proof. The land had since slipped away in places, -and the fence had caved in, This was not caused by any defect in the fence, but entirely by slipping away of the land. James Andrew, contractor, gave evidence to the effect that hearing that Mr D, McKenzie wanted a fence he went to see him, Mr McKenzie described the points between which ' the fence was to be erected, and said be wanted a moderate fence with wire netting on it, Told witness to look at the gr und and Bee what lie could do it For, This was done, and he gave in a price at 12s per chain. McKenzie told him to look at the back line, but he did not go, No specifications were shown him. Finally went in with Wadham for the job. • ••

The rest of the witness 1 evidence Was corroborative of the last.

James Kidgway gave expert evidence of the good workmanship of the fence,

This closed the case for the plaintiff Mr Beard, for the defence, Gaid they proposed to show that the fence was of no use to Mr McKenzie, and would cost more to repair than the amount claimed, Further, Andrew had no right to bring any claim, as the contract was made with Wadham alone.

Donald McKenzie, the defendant, deposed to letting a contract to Benjamin Wadham about April 26th. Wadharn examined the ground and agreed to take the fence, at 10s a chain. : Described the fenco which was to be the sumo as erected for Mr James about two years ago, Wanted an agreement signed, but Wadham objected,.saying he was a good fencer, and if he could not put up a fence without an agreement he would not do it at all. Finally it was agreed that Wadham. should work to the agreement he had worked under when erecting James' fence, The agreement was not read then, but afterwards- was read to him, Met Wadham and Andrews on the road: and asked Wadham if he knew the dimensions of the timber to be used, Wad? bam gave the measurements, and witness then rear 1 the agreement to prevent misunderstanding. The fenco was not to his satisfaction; The posts were small and of sap.' Complained more than: once, Never expressed Plaintiff had told him they would do satisfaction with the work done. as thoy liket), wljen he complained. Taking the fence all through it was not according to iba specifications, Did not raise any objection to the manner in whioh the posts were rammed, Strainers were not Bound heart oftotara. A few of the posts were dug. out where a lift occurred and they were found not to be securely footed, Taking the work as a whole it was not'a fence at all, and he would rather be without it. The fence could not now be made according to the contract produced, Wadham asked for money'and waa told he had better complete his fence first. Had never told Wadham that he would not pay him until both jobs were completed. A portion of the land slipped away before plaintiffs asked for payment.

■ By Mr Pownall: Sinking of the ' land was caused by the formation of the country, The land slipped away, ' but where it had gone to lie did not know. Had marked out the lino of fence himself, Did not want to make the contractor responsible l because of the slips, Would swear that he had never refused to measure off until the second job was finished. Let the second job to tbs plaintiffs on tbe 18th May, They did not want an - agreement, but one was signed forthesecond job. 'l}id not shut his eyes to tbe fence and therefore knew what was going on, It was after thp second job was let to the plaintiffs that they told Mm they would do tm they liked, Knew that Wadbam could put up a good fence if he liked and wheh' he allowed them to sign for a Becond contract be bad no. idea the first fence was so bad. Half the fence was done at the time, Andrew was an utter stranger to him and he never showed lii'tn the agreement, When Andrew applied; for the work ho was informed that, witness required another fence •'will':' o --'to one already erected. Coufiiot say whether iIS S" W increased since the job was finished, There were two eljps. To Mr Beard : His complaint was not on account of the slips but about the way the work was constructed.' Quite 'sure he directed Andrew to the ■fence which had been erected under tb'o agreement with James. Bolh and 1 Andrew' were' pres'edt when he read the peciiication of cbu» tract. ■■■•'•■'

Frederick Lee, farmer of Wangaehu gave evidence to the effect thai he 'had seen the fence in dispute. It was nothing like the agreement produced. [The only waytoawke ihe fence in accordance with the agreement was to null it down and erect a new one. That in his opinion was the only way it could be remedied. Apart from the agreement it was not a proper fence, half the posts being sap. The wire was also loose, Did not think there was much wrong with the wirenetting. Knew the posts were not properly footed because two were taken up. Ouo was not footed at all and the other had a bit nf wire on it. Mr Beard 3tat«d that, Mr A. W. Cave ami Mr James Faulkner were prepared to give exactly similar evidence. He would not call them if His■ Worship would iigiee to. accept evidence as similar. This course was agreed to, Judgment was reserved until 10 o'clock on LVnday next.