DISTRICT COURT, REEFTON.

Inangahua Times, Volume 21, 20 November 1878, Page 2

DISTRICT COURT, REEFTON.

Monday, 18tii November, 1878. (BoCoro Hiß Honor Judgo Weston.) Ckookbh v. IHwsonS ThU wts an action to recover tho sum of £173 14n damages for broach of oontrnot, The particulars of tho claim will bo best underwood from (he evidence. Mr Roid appeared for tho plaintiff, and Mr .Guinness for tho dofendant, j Mr R«id having opened thecaic tho follow" ing ovidonoo wn» takon :— Oliarlos Urookor — I am tho plaintiff in 111© present action, and recollect signing a contract with defendant on tho lltli February, for tho orectiou of an hotel in .Broadway. Mr Guinnofls objected to roforoncd to any contract unlest* tho dooumont wus put in. . ■ ' Mr Hoid a/iked Mv Guinness to pro* duoe tho agreement in pursuanco of writ* ten notico to thnt offset, ! Mr Guinness said ho did not produce the document. Examination continued--! have not got j the original agroomont, and did not sco it after I signod it. I applied for a copy of Iho agreement at Mr Pitt's office Tho mi«innl agreement wns prepared in Mr Pitt's office, nnd also signed thoro, and t was loft thoro and X did not ugain «§o it, It was signed .on tho day it was dated. I got tho copy produced on tho 19th July fronl Mr Jones, Mr Pitt's dark, Mr GuinncßS objooled to tho document going in ns thoro was no proof of its being a copy of tho original. William Hugh Jones—l am dork to Mr W. I'itt, •Hoofton, nnd rooolloot nn agreement being onjorod intobotweon Mr Duw,s,on ,nnd Mr Crocker, Boforo thin copy was supplied (ho original documont was in the offico* Mr Dawson took, it away with my looit consont« Ho camo ihto tho office and asked for tho agree ment ; I told him I did not know whore it was j ho thon said " Horo it is,' 1 and drew it from a pigeon liolo and toolc it away. Cannot »ay wholhor tho 'conditions vj'oro attached to it. Mr Crookor appliod tb mo for a copy and I gavo it to him, Examination continued —Both Dawson and Ctookor were present when the Original document was signod. ; IVfr Guinness oon'ohded tlmt a solicitor noling for ono party had no fight to giro a> copy of tho ngroomnnt to tho other. His Honr OYorru.lod Iho objection. , ; Examination oontinned— Both Dawson nnd Crooltor wero prosont whoii tho. instructions wero givon. Cannot say who prvicl tho costs of tho dood. I nwonr thnt Iho doo'nmflht produced is a tmo copy of (ho original agreoraont botwoen Duvrson nnd Crocker. , ' Charles Crookcr— Shortly after signing tho agrooraont Mr Pitt askod mo wfto wna to pay for if, I said it 'was usual for the proprietor to pay. 110 said ho only wished to know because it wns only a ronlter of (wo guineas. I said if (hat was njl I wa« willing to pay tho half, and I understood thnt ho assented, I appliod to Mr Pitt at that timo for n copy, nnd ho said J vvaa entitled to ono, and ho Would order ono. to bo written out. Thoro wns no othor solicitor acting on my behalf j I considered thnt Mr Pitt was acting for both of us in drnwing tho agreement. Cross.oxnminod — I did not suggost (o Dawson thnt I should go to Mr Pitt. Dnwson suggested it to mo. Noyor told Dawson that I would linro nothing to do with any oxponse. Hayo signed ag oomenta with contractor.*, but not in Roofton j boon in Roofton throb years. It; is not usuil for contractors to pay half (he cost. As Mr Pitt seemod to think tint I was ono of tho parties to pay I snid that as it was only two guineas I would pny half, but that it was usi'nl for tho proprietor to pay. Did not toll Mr Pitt that I would pay hnlf tho cost of tho copy ,' Hnvo not paid for half tho cost of tho original ngroemont $ hnvo uover boon askod .for it, ■ • , 'His Honor rulod thatthodoournent wns admissible [document put in and roud.] Examination ooulinuod -~ Tho agroo* mont wn» signod on tho 11th February. After signing Iho agreement had to wait till tho 11th for copios of tho plans and specifications (documents put in.) Daw* son pointod out' tho sito of tho building to mo, and wo spoko' to the County En* cinoer about tho levels of tho streets. Wo flfterwnrds took,! tho lovolh and they ( wore subsequently chocked* Saw Pawson on tho evening of tho 18th in company with M'Cnrthy. Ho said that Gilmor's wanted him to buy tho old house back, and ho would liko to know what compensation I would tnko to thrown up tho con* tract ; I mado a noto of tho conversation within hnlf nn hour of it taking place. In answer to him I said J would linvo to think about Hand certainly thought that ho had hotter do tho sumo, Wo had further conversation which I oan roniem* bar. I advised him not to bo in a hurry about the ropurchnso of tho hotel. I told him that I had bought 0,000 foot of timber nnd paid ado posit on it. He said I could^got out of that* My reason, for «dU

rising him not to buy was thnt it would bo woro to my ftdvantnga to build tho holol ; Did not toll him what sum I was prepared to ncoept ns I had not a copy of tho ngroomont, Saw a solicitor nnd mot Dawson again on tho 19th } ho voferrad to a lot of work that ho would r<j« quiro to bo done «t tho old hoasa, which thon belonged toGilmor'n wlrch he would want nifl to do. I snid, " thon you hayo concluded tho puroluuo of tho old lioujo," and ho said " not oxaotly." At nino o'clock on tho following morning again saw him ; ho offi-rod mo i J 20 to throw up tho -oon» • tract, nnd roforrod np;nin to work ho WoUli require to bo dono at tho old house. I \ felt disgusted and loft and about an hour nftorwnrds roturnod to Dnlton's and found him in Iho bar } I told him that «s I had mado preparations to go on with tho job I would rathor do bo. Ho said. " al 1 right," And I w«nt to work • nt 3 o'clock . on Uw fiamo day ha camo to the aito of Uio building, andnskod me to knook off, offering mo £25 ; I did not nooopt it ;, lio «iid if I did not nooopt that amount ho would throw himself into suoh n position that I could got nothing j «aw him nguin at iho Kxohango Hotel • ho oillod mo into a parlor, and naked mo if I was going to persist in going on with' Iho contract ; I nskod him thon if it wWliifl express wish that I should not, ifo «c?id it wai ; I naked him if he wai wil|{n« to allow mo (air damngos for not going on nnJ ho naid yes. I never arranged with him to take nny sum as compeniulion.' 1 On the 22id February wroto to dofondiint. (Loiter put in and road.) On that day Brown, OsrelP nnd Cohru enmoto rao at ; different <imoß relntivos to ft settlement' ; -on '22nd I wont to work on Iho sito nnd A ikon gavo rao a notice lodoaist working or trospmsinp' on his »eefc'on» { I returned and wrote to do* fondant } I produce a oojto of tho letter I wrolo to Dawson ; roceiveft no roply to it ; on Iho 28th tondorod a bill to defendant for £l73 14s, and suid that was. what I had boon neoooflsilatod to, do ns he would not oomo to a sntisfnotory settlement ; ho Raid he could not pny it nnd why did I not lenvo it to arbitration; he snid tho agreomont providod for arbitration 1 naked why ho. did not produce it to guide me, nnd ho said, it must J; be lost ;,hei finished by saying that he oonld not or would not pny tho nooonnl;, and I said I Would have to «en about it : never on any occasion agrood to tnko any compensation, ihnt Inm oortnin about. I claim £173 \i% whioh is mndo up. by c'alonlntion. The not cost of the material and labour for tho building would be £1391, namely, timbor £093, nnd labor £W from which I caU oulntod to mnl-o 12por cent profit. The usual rato is from 12 to 15 percent. O-O9s«»exntninod— l believe ten Jors were called for tlio work. On the specifications ■put in I tendered. ■„I supplied two^.or Ihroe tenders, both wriUoh jin'd ;■; suppjiod tnpro thnn oriti, in wrilin^^ben !|pv9 I Bup|)licd Daw.son with three ten* 4cts, Don't rocolloct tho date when the tonders closod. lloooivod no tondors back from Dnwson. Mr Guinness desired to put in a tender for £MSO, to show that the coot met wns ipoorroot so. far as the nm)unt of tbo ten? dor, nnd asked to ha allowod to amend Kit! plea accordingly. Mr Ecid objooled, first bocnuse tho svm mentioned in tho contract, £1550, is the amount which muwt bo takon, and that no provious tondors can form a basis for es« limaling damngos. Secondly, thnt dofen« dnnt in his dcqlaiation has not set up *ny contrnot difforont from that of plaintiff ; and that ho is precluded at this stnga from giving ovidenoe of any difTorent contract. ! His IFonor, aftor argument, nllowod the abicndmcnt. i Croßß«oxnminalion continued — • I can ojily toll you tho nmount of ono tondor, £^1550, thero mny hnvo boon a tender for £1450, but it w.is given under certain cit'cutnstancos. Tho tendor was givon nfc tljnt prion at his suggestion, and tho tdndor £1550 wai accented. I put in tlji'oo tendora nnd defendant accoptod the miJdlo one. Tho reason I put in so tunny tondorn was thnt Ditwson h ml pros misod mo tho job, for a very long time, nnd although ho called for tenders that was a gu'l ns far. as tha public wns coneornod. Angus Sutherland told wo that ho tnn lercd for £U75. Tho tender pro* dnoed is in ray handwriting (document road.) It is for £1450. I was present in Mr Pitt's oflluo with Dawson who* tho agreement "vai signed, it was road over by Mr Pitt ; both tbo draft nnd the nQroemonfc proper wero road over to us by Mr Pitt, and vo both signod toflothor. I proceeded nt onoo to do tho work. By the oouditiona I wns required to mnko a deposit of £20* gnvo Dawson a cheque for £20 with ray tender ; don't know whotber tho choquo Ims been presented ; havo not olnimed tho £20 back for Iho ronson Hint my affairs wo. 4 o in dispute ; gave him the cheque in DoUouYnndgot no receipt for it. 1 made out two tenders, tho ono for £1550 was oo»nod nt tho flnmo timo as the tenders mppliod by other pooplo, nnd Diuvnon told me that my . tendor wns abovosomooftho ol.horfl, but no ha had promtaod mo tho job ho would givo it (o mo, but ho would not know how to deal with tho other parties and ho tolcl ir.e to write" out a «wnllor tondnr. I did no aud tuado out a ton* dor for 45M50, Noror asked Dawsou for vcturn of tho obnquo, Had a ohequo in the onvolopo | did not \rrito it out in hit pranciiccn Wim do ling vritb tl»o NaK>mi\l Dank on that. da;n, but won't swoar wlicthor thoro wns or was not funds thoro to moat it but ithor« w»j funds tUoro ) Dawson gavo me no notio» to diaoeutiuuo thaoontrsot. H» offewdi 91* £28 [

to rlitconlinuo. Paid £0 10a for piles but won't swear whothor it h all paid, but I nm re»ponfl!blo for it ; havo paid tlio biggest por« t!ou of it j havo not usod any of the piles j tbo timo nllowcd fov the contract wns tlwce inonthi > I baio claimed £400 for lubor, nnd nri.>«d at tlio eitimate at por i)Jumre of2os Hint is a fair ratoj I calculated to pay men 18s ft day, and would not haro thorn for low, Tho provision for payment of lfr por oout for copies of drawing was ctf.sod, and it was ormngfld that we nhould piy £7 or £7 10s e.ioh ns the cgtitnntod cost df tho drawing. Received no roply from Dawsou rolntiro to Atkcn's noto. .Re'oxnminod — Tho lossor tonder wns put in nololy for tho purpoio statod nnd no cheque accompanied it. Tho instructions for th« agreement woro taken down rightly nt hrtt by Mr Pitt. I think wo wont to Mr Pitt's offloo in tho morning at 10 o'olook, and at nbout 5 o'clock on tlio same day theagroomenl: wm signed. Mr Pitt road tho instrnclions to us boforo writing out tho Agreement, and tho sum of £1560 was mentioned. I liavo n vory slight doubt thnt tha £1550 wos m«n« tionod, but would not bo quite positive, I wns in tho snrao room with dufondnnt whon tho tenders wore first oponcd. I wns tlio only person in tho room besides Dawson when the tenders wero opened. Tlio £1450 tondta was not iHoWifirm Mr Pitt's office Thomas Cnvoll— l nra a bnlcor liring'in ltoofton, nnd know both Dawson nni Crocker and hoard tlmt thoro^wai n con* trnct between tho parties to evor.h an hotel. Sow Dawsou' on the 20tli Fob>uacy.,.nnd hrTd a conversation with him rolntfvo to Crocker. I had been doputed by Dawson to mate -an avrangomout with Crocker to cancel tho contract. I was authorised to nuko an offer to Crockor of £25 in oash, aud £9 10a worth of piloi thon on tho ground. Went in soarch of Crockor but could not find him. Told Dawson and next morning snw Crocker ond mada tho offer mid he rofuaod to accopt tho offer, and rofcrrcd mo to his solicitor. Ho said tho proper way of settling tho thing wns by a per contngoon tho contract, nnd said that ho had ordered COOO feet of timber. About two hours aftor informed Dawson of. tho refiual, nnd tho latter saifi ho Would not advance Crockor subsequently ankod rao if Dawson hod made a stntcmont rolativo to tho refuinl, Dnwson said that in tho ovoni of Crockor's not accepting tho offer, he (Dawsoi)) would m.iko liimsolf safe. • Charlos Cohon— l am n stationor liyins in Ecofton, and know both tho plnintiflf nnd defendant. Recollect having a con* versation with dofendnnt on tho night that SirGoorgo Grey Addressed tho people in tho hnll. Dfttrson cnllod mo on ono fcido nnd siid ho wns anxious to get o settlement of his dispute with Crookor. Ho said he thought Crookor w.is trying to Inks advkntngo of him. I did not think that tho £i 26 offrrert wns suflloionf, nnd told Dnwsoh so. Ho askod mo to intercede with Crocker nnd try nnd trot it settled, and I told him I fait confident Orookor would not accopt tho sum stnled. I believe I a»ked him whethor ha had consulted plaintiff relntivo to tho pur* ohaso of Oilraer's Hotel, nnd ho said ho hnd and thnt Croaker had told him ho would not be hard with him. Angus Sutherland— l am a builder and contractor living in Rcofton, mil know tho patties to tho suit. I recolloot tenders being onllod by Duwson for tho orection of nn hotol. My tendor for the work was £1475 and it wns in writing. I •stimato tho cost of material at £1055 and £320 for labour, and £100 profit or 10 to 12 por cent profit. I havo been A contractor and builder for over twonty years. I, was supplied with a copy of, tho specifications ami drawings of the work. Tlio documents produced are tho onos from which T took off t!\» qunntitio*, Oroxs'ejcuimud — I sent a doposit of £20 with my tender, on.i tho nmount was subsequently returned to mo ; I wns not presont when tho tenders were oponod ; I know thnt Crocker hnd got tho job. DawHon told mo tlmt Crockor'a tender was under me ; I included tho cost of iron in my tender, nnd if wood woro subsfitutod for iron I should have boon willing to do the work for £20 or £30 less. My tender includos tho cost of ovorything. William Pitt — T nm a solicitor rosid* ing at Koefton nnd recolloct proprincr nn ngrr-oment butwoon tho pnrties in Fobrunry Inst; I prodnco certain pnpors in tho tnnttcr, and amongst (hnm instructions for.nn ngroomont, nud find therein mention of tho sum of £1550. Cinnot rt'oollect whether tho drnft wns rond over. Tho oiißrosamont was subscquontly lost from my ofllco, Cross-oxnminod — T roeoived my in* struntioni from MrD.mvson nnd olinrgod him with tho o st ; I linvo not the slight ost rcoollooiion of linving Rone to Crocker and nskod him for ono guinoa, half tho oost of preparing tbo natropmont, nnd it is extremely i-nprobnblo thnt I did so. Havti no recollection of hnvlng nny conversation with Crookor rolntivo to tbo payment of tlio costs in tho enso. i\Fy dork, Mr Jonps, askod mo if ho might ripply a copy of tbo ngrofmont to plaintiff, aud I told him to do so, nnd Crookor w*s ohnrged with tho nolual cost of pre* piring tlio copy. I nm not certain I wholhor I saw tho tendor for £146) nt tlio timo I reooivod Iho instructions for tho ngraomont ; Ido not think I hnd liocauso it is unlikely I would hnvo ou'ored £1550 in tho i'lstruotnns far ngreo mont. Dawson i I think subarqaontly drew my attention to that tendor. At tho time of executing the agreement tho question of tho payment of a perccnta^o of H for drawings was meinioned, and it was tbrmally agreed that oacli shouldpny half the cost of drawings; I cannot sny how long tho agreement, remained in' my possession. Mr Diiwson cnllod at my office and took ih* document away ; X could not cay wbother tUo oopy 'pro*

duced wus mndo from tho draft or tho originnl. Tlio cnßroiim"iit wns undo on the HIM and tho copy for Crocker on tho lOlh. , This closed tho oaiio for tho plaintiff. Mr Guinnoss Imvim* briefly oponed tho ciso for tho defendant called tlio i following evidence ;— i ,Tnhn Hogi*— l bolicv« Iwm present at Dulton's Hotel immediately nftor th* ', opening of tendon by Dnwson ; I did not see them ; Crocker was present ; I did not honr whoso tender would bo 1 nccoptod j I hoard thnl Crocker'i tender was tho lowest upon certain conditions. > Tho understanding I arrived at was that Crocker's tendor was tho lowest. Noth* , ing was said about a chequt ; I saw no . choquo thero, 1 Ci'OM-oxnminod— l understood that tho 1 tenders had been opened boforo I got i liter*. , John Dawson— l am nn hotolkeoper , residing in Heofton. I oallod tenders for the erection of nn hotol in Hroadway, and ' in answer receivod five tendors ; I never received moro than ono tendor frcm , Crocker. Tho tender produced is Crockor's nnd is tho only ono I evor rocoivod from ' him. Thero wns noither cash nr*r cheque accompanying tho toudor. nnd Crqckor' never either nftor or before gave mo either cash or a cheque ; It never arinnged with us that ho should pnt in ! moro Ihnn ono tendor. Never hud a> arcanßomont vvilli him that ho should put 4n a tender. Cncko" and I arc p«rticu« Inrly good friends i I oponed tho tendors •mrtfrlf at Button's Ht>Ul ;. and tliew . wns no ono olso present. Ho^r after* wards camo in nnd Crocker was thoro ; I slntod that Croekor was the lowest tender) 1 told them tho amounts of nil tho tenders. Nororin my lifd received a tender for £1550 from Croekor. About tho 10th I went to Mr Pitt and c;nve him tho instructions myself; I loft tho tender with him, Crookor wns with mo at Mr Pitt's whom tho ngroismcnt was cxeouted t I run iiuro thnt Croekor did not go with mo (o Mr Pitt to g>o tho instructional I novor *ignod nn ngroomont for £1550 j I saw tho Bjjroemont nfter it wna signed j I jot it from Mr Pitt's oftloo, nnd rood it, and roturnod it to Mr Pitt in Mr O. CatupbolPs proaonoo an! hnvo not since bioh it. Thin would bo on tho 12th ; I took it and rotur.iad it on the name d:ty. Novor nuMiorisod n copy of it to bo m:\do foi Orockir, ll ud k oonvorsfttion with Crookcr about staying tho work, nnd ho «iid I oould arrnn^o tho muttccr, and ho would bo no obst'ielo in tho way by paying him nhntovcr little* expenses ho had boon at. Ho fluid onco that ho would be satisfl.-d with t'2o, but nftor Mint v lot of people in the upper end of tho town got hold of him, and persuaded him to como down on mo. Whon I next saw him he referred nio to lm solicitor, On tho 28tli Fobruary 1 roccivod tho necount produced from Croekor. Subsequently had conversations with Cohen and Cavol! ; I did not know hut thnt Crookor hud so.it him ; I told tliom they oould go to Croekor if thoy liked. Never stoppo.l Croekor by notioo in writing from building the hotel. Da not remember having told Crocker thut I wished him to knook off. I nover to my knowledge aiiid to Croekor that if h« would not nnnopt £'20. I would put myself in such a position as to prevent, him from getting anythin; CniHS.etmniucd— Kccolleet callin<r tendors for tho building i I got about firo — tliov woro Suthoilind, two from Oioyniouth, Crocker's, and anothor. Cannot »:iy what whs tho highost tcivler; I think ono of ihe tenders was for £lß6o. Will twoar positively that I nover told Crocker to redueo hi< tender. Uoforo thi< di«puto Crocker and I wero pood friends. Am still prepared to swcur that Oi-ocker vms not prrsont when I opened tlio ten-iers. Don't reoolljcfc Crookor being prcsoot whon instructions woro giron. Rncolloct tho engDssmont being road orer to us, hut don't rcooheol tho sum of £1550 boing tncnli nod. I told Cronkor thut I h;»d paid a deposit on tho purchiue, and ho at ouco puHed down tho fonco and wont to work. Ciinnot rccollfeot duto of tho eonvdrsation nt Gissintfo's. 1 did not nsk Cnvoll to go and sco Crocker in r«feronco to a sottlomout 5 It would bo beforo tho duto of tho doed pro* ducod that Crocker oflVrod to tako £20. I might havo authorised Cavcll to mako an offer to Crookcr. Do not rreolloot CaToll telling 1110 that Croekor refused to accept tho offer. Don't think I evor told Cavoll thit I would plaoo ttiysolf aa that Crocker could got nothing out of mo. May have said so. Having hoard tho evi-lonoo of Mr Jonos I am still prepared to swear positively that tho copy pro<?uood differs from tho original ngreo* mont between Croikpr nnd mysolf. Thoro is a diffiircuoo of £100 in tho amount of tho oonlraot. I will undertnko to pit my memory ognins. tho copy produced. William Hui»h Jonos, recalled— l rooolloot making a copy of an agroomont botwoon Crookor and Djwsop, Tho copy wns mado from the draft. Tho O'iginal ngrooroont wns to tho best of my b-aliof 1 turn pod. I hayo soarohed the olilco for tho documont. Crookor has not boon ch»rgod with half tho cost of proparing tho ftj;roctnent, ho was merely charged with tho cost of tho copy. Oross-oifumnod— l engrossed tho originnl n'grooment from tho draft and am propared to swonr that tho ono produced is a truo oopy. I cannot rooolloot; from momory wliai tho amount montionod was. I have no reason whatever to doubt that tho copy producod diflfora from tho original agrocment. Mr Pitt — By tho Court— So far as my rocollfotion serves mo, D.iwson spoko to mo boforo tho instructions, find 1 am certain that thoy woro both present whon tho instructions woro rocoived. I drow tho draft of tha agreement, and am morally ccrtiin that tho ongrossmont was a truo copy. It was read over by mo boforo signing, and I dotocted no discrepancies. By Mr R«id — t Jiavo no rocollootion of Mr Dawson returning tho Agreomcnt to mo 1 !f ho had douo ao I should havo rooolloctod it. I am quito oorUin that tho instructions woro for £1550, and that tho agrooment was for that sum, and tho document was road over beforo boing signed. This cloiod tho oaso. Tlio judgmont of his Honor is unavoid* ably hold over uatil uur noxt, issuo.