DISTRICT COURT, WESTPORT.

Westport Times, Volume VIII, Issue 1186, 26 June 1874, Page 2

DISTRICT COURT, WESTPORT.

(Before his Honor Judge Harvey, and Jury of lour.)

Wednesday, June 24

CAREY AND OTHERS V. STITT BROS. Jury: Messrs C. Gr. Andrews, C. Beale, E. Blaxall, and N. Blaxall. Claim to recover £209, damages arising from alleged breach of contract, whereby the defendants had agreed to sublet a certain road contract to plaintiffs on certain specified terms as to payment, and for supply of goods at certain rates; which contract had not been fulfilled. Mr Fisher appeared for complainants, and Mr Shapter for defendants.

John Ahem, one of the plaintiffs, examined, gave evidence as to negotiations between parties to tiie suit. Defendants had obtained a Government contract, for which plaintiffs had also tendered. Arrangements were subsequently made for plaintiffs to do a certain portion of the work at the price obtained by defendants, who were to supply them with stores at Westport current rates. Subsequently Alex. Stitt desired plaintiffs to give his firm a bonus of £2O on the work, as part compensation for money forfeited on a previous tender, and that the words " Westport current rates " should bo omitted. This they refused to consent to, and the agreement was broken by Stitt Brothers giving tho contract to other parties. Plaintiffs had originally agreed to do the work for £I2BO, the tendered price Stitt Brothers had put in, aud witness calculated that it would have cost his party £113:1 10s, or, not including their own work, £9i : l 10a, to complete it. By Mr Shapter: I was mato with Carey and Callaghan, but my name did not appear in tho tender sent in by them. I recollect tho agreement on the 13th March being signed, and no alteration waa then made in it to my knowledge. It contained the words " Westport prices current." After this I remember the agreement wo had signed before and tho now one were produced, aud 1 asked Stitt what tho difference was, he said not much. lie told ine that Callaghan's name and the words " current prices," were left out. 1 will not swear I did not tell the storeman that Carey and myself wcro going to do the work without Callaghau. The original tender by Carey aud Callaghan was £1498. I was a partner at tho time. There was a mistake in the specifications of 131 chains in length. This made out our calculations too much,. At the timo Stitt wag

going to tender I discovered tlio error. When fresh lenders were called, I discovered the error in tho measurement. It was measured by some one up the road named Bob. 127 chains were mentioned in the contract and 113 J- had really to be done. Alter Stitt refused ns tlio contract. I measured the ground. We did not send in a new tender, as if he got both IS os. 2 and 4, he had said ho would let us have one at the Government price. I told Stilt of the mistake, and that ho should put in his tender for £1,300 ; he put it in for £ 1,280. Ho agreed to sublet the contract to us for the same amount which he got for tlio contract, and we were to purchase our store* from him. I have never said that Stitt had taken the work too cheaply, nor that Stitt was bound to lose money on it.

By the Court : There is no claim for any special damage. Henry Carey, examined : I am one of the plaintiffs in this action. Between 10th and 18th of February. I saw defendant, and he told me that he had tendered for No. 1 section on Puller road, and asked mo if he got it, would I take it from him at tlio price tendered for. He said he had tendered in his overseer's name, because ho had thrown up two sections which be had previously tendered for inhis own name. On the 13th of March, we all met Mr Shapter at Stitt's store with Holgate (the overseer.) Holgato had been then declared the successful tenderer, and had signed the contract. Stilt wanted us to take tlio sub-contract from Holgate, wo refused, but agreed to take it from Stitt. Mr Shapter drew out the agreement that we were to make section 4 for £1230, and that wc were to take all goods from Stitt Bros, at Westport current rates, and that he should stop the price of the goods from the contract price when works were completed We all signed the agreement, which was attested by Mr Shapter. Mr Stitt then said that we had no business to put into the agreement that the goods were to be supplied at Westport current prices. Stitt and Callaghan had some words about this clause, and Callaghan said ho would go to the oilier store and learn their prices, upon which Stitt told Callaghan that lie would have to find security for his share of the goods. Callaghan asked Stitt what better security lie wanted than the money, ho would have to pay them. Stilt then said Vlf that is the case I wiil not have you in the contract at all, and wiil have a fresh document drawn up." Stitt then told Ahern and me to come down on tlio 14th and ho would have a fresh document drawn out. Mr Shaptev was present, I and Ahern went on the 14th. Stitt said he would go to Mr Shapter's office and get another agreement drawn out to suit himself, and told us to come down in the afternoon, wo wont, and Mr Stitt produced the agreement we had signed and another document which he wished us to sign, wo objected to do so. He put the two documents down on the table, Ahern read them. Ho asked Stitt what was the matter with the original document. He said that Mr Shapter had said that the document was not properly drawn out. At this time Mr Shapter came in and said that although the document was a little clumsy it was perfectly legal. He Stitt wished us to sign the fresh document, we objected. On the lGth wo went to him again and ho wanted us to sign the second document. We refused again. We had found money in Mr JJobsou's hands, of which fact Stitt was aware. Stitt said he wanted £2O for the money he had lost through forfeiting the contract originally. I said, " XTou'll get no £2O from mo." He drew out two I O U's—one for £l3 odd, and one for £6 odd—and said, ''Take tills (the latter) to Callaghan, and get him to sign it, and you and Ahern sign the other one. I refused, and Ahern also, but I took the one to Callaghan who also refused to sign. We took a list of goods to Stitt's store either on Monday or Tuesday] and we gave the list to the storeman. We went down again iu the evening, wheu ho told us that the goods were being made up. Stitt wanted us again to the second document. 1 refused, and Slitt then said, "There will be no goods "o up the river for you, I will send them up to my brother." On the 18th Ahern and I went to him again. Callaghan stood in the door. We asked Stitt if ho was going to supply the goods, and ho said not unless we signed the 10 U's and the second document. He also told us that he had written to his brother, the inVht before, to let the contract. He asked us if wc would not take a small piece of the contract. "Wc told him we would lake all or none. Wo asked him for a copy of the original agreement, and he said he had burnt it. The same eveniug I met Stitt, and asked him what he was going to do about the contract. He said that if we gave him £2O and signed the second document we could have it. I told him that if ho would not abide by his original agreement I would wash my hands of it altogether. I have gone through Ahern's estimates, and .agree with him as to their correctness". Stitt's overseer knew that the chainage vvas out 13 A- chains before ho put in the tenders which wcro accepted, ami afterwards forfeited. We allowed £lO a chain, and told Stitt £ 1300 would be a fair thing, and ho tendered for £I2BO.

Cross-examined by Mr Simpler : my first tender of £ll9B was ou the wrong measure-merit of 13* chains too much.

I know that Stitt Broa. originally tendered for Section No. 2. I and Callaghan had also a tender in for the section No. 1. It turned out that our tender was a 1 little over theirs, he said that I was considerably above him but he would go out and I could " Chuck Callaghan over," and Stitt and I would bo mates! I would not " Chuck Callaghan over." T agreed with Stitt that if ho withdrew his tender, and T got the section, I would pay him £2O, the amount of money ho would have to forfeit in the event of his not taking up his tender. Stitt withdrew his tender, mine was refused and fresh tenders were called. The £2O is, what Stilt wanted us to give him the IO TJ for. I was under the impression that Stitt was getting more than £I2BO for the contract. His brother told mo ho was, getting £1330. Re-examined: At the time Stitt told me that his was the lowest tender the information, as far as I knovr, had not been made public. Such information is generally posted in the survey window, and afterwards gazetted. It had not been posted at that time. Cornelius O'Callaghan examined: I am one of the plaintiffs in this action. I saw Stitt on 13th Feb. He told mo that he was going to throw up his contract, and had heard on very good authority that our tender was next to him. He asked me if I would give him No. 2 section if I got it. I said yes. Mr Simpler accordingly drew up an agreement to that effect; I e;ot Mr Shapter to put in that that the goods were to be supplied at Westport current prices—at which Mr Stitt got wild. There was also a clause that 75 per cent should bo paid on work done. These were put in before the agreement was signed. Stttt said he should want security from ma for my tucker. 1 said I would give him my labor and would complete the job according to specification. lam a carpenter, and have estimated the cost of the bridges, which I put down at £133 10s. Stitt never asked me for any security for due execution of work.

At this stage the Court was ad journed until 10 o'clock on Thursday.

TrrunsD.vi-, Jd-jte 21

The case of Carey aud others v. Stitt was resumed this morning.

Henry Carey, re-examined : When I was negotiating with Stitt about Iho contract, he was aware that I aud my mates intended to work on the contract ourselves.

By the Court: "Wo told him so

J. B. Eisher deposed : On the 19th March I went to Stitt to demand a copy of the original agreement. Stitt told mo ho had destroyed it because Callaghan refused to sign security for his one-third share of the tucker. He said, "J know the other two men, but 1 don't know Callaghan." Cross-examined by Mr Shapter : I received the letter produced on the 18th April. Yvuen I went to Mr Stitt I do not recollect his saying ho was willing to give the plaintiffs the contract. Tho letter was read. It was from Mr Shapter to Mr Fisher, dated 1-ith April, offering on behalf of Stitt to lot the plaintiffs the contract on the original terms. This closed tho plaintiffs' case. No witnesses were called for the defence. Mr Shaptor moved for a non-suit on tho ground that the contract to which the agreement referred was not before the Court. Mr Fisher replied that the specifications formed no part of his casej in which view the Court concurred. After addresses from counsel, His Honor proceeded to sum up. In the course of his remarks, ho observed that there has been two contracts between the parties to tho suit. Of the first the less said about it the better. It scorned that both parties had originally tendered for the same work, but the defendant by some means or other learned that, his contract was the lowest, and would be accepted and that the plaintiffs were the next but at a considerably higher figure. Defendant therefore agreed with plaintiffs that he should withdraw his tender, on condition that he should have one of the sections if plaintiffs tender were accepted. This was an attempt to take advantage of tho Government. He referred to it hecau33 it showed the reason of defendant wanting plaintiffs to give the lOU, mentioned in evidence, the sum being the amount ho forfeited on withdrawing his tender. There was also another agreement disclosed in evidence. The defendant said to plaintiffs, don't yon tender—l will, and if I get it you shall have the contract at the price I tendered for, aud you must got your goods from me. This was similar to what was known in the auction rooms at home as the " knock out" system. With respect to the question at issue, according to his view, no breach of contract had been committed. The second agreement, which plaintiffs refused to sign, was the same as the first which they had signed, it was true Callaghan's name was left out of the second agreement, but they might have gone on with tho contract for all that, for Callaghan would havo been able to obtain his rights from his partners, who would have had their claim against Stitt. There was really no difference between the two agreements, for as to the omission in the second one of the words " current rates," the law would compel the defendant to supply plaintiffs with goods at current rates. The learned counsel for the plaintiffs urged that they were ignorant of the law on the subject, but

no ono is allowed to plead ignorance of the law. Ho could not but consider that the two contracts were identical, and there was no reason why plaintiffs should not havo signed the second one and gono on with the work. About the bith April Stitt offered them again to go on with tho contract, but they refused, on tho ground that four or five weeks had elapsed, and they could not complete it in time. But Stitt was tho man who would have to pay tho penalty, and not the plaintiffs, and he undertook to hold them harmless. He did not hesitate to say that the contract that tho parties had entered into was illegal. A contractor had no right to supply goods. Ho know it was very extensively practised, but it was a system that ought to bo put down, and ought to be discountenanced in every way.

The jury retired to consult, and after an absence of a quarter of an hour, returned a verdict for tho plaintiffs for £l3 4s. lit, re EXCELSIOB COMPANY. Mr Fisher, on behalf of T. H. Dickinson, a creditor in the estate, applied for rule nisi to show cause why tho liquidator should not be compelled to pay into the account of Excelsior Quartz Mining Company, Registered, the sum of £lls, alleged to have been bid by the liquidator for a certain lot put up by auction at sale of the Excelsior mining property. Rule refused.

Mr Fisher then stated his iutoution, on behalf of his client, to apply for a ■mandamus.

His Honor commented on the action of tho applicant, at that and former sittings of tho Court, as tending to delay declaration of dividend.