DISTRICT COURT, REEFTON

Inangahua Times, Volume X, Issue 1549, 18 May 1885, Page 2

DISTRICT COURT, REEFTON

■- — • . (Before His Honor Judos Bboad.) Saturday, May 16th. 1885. r -eELT.I3TON AND PABTY V. LVANOAHUA Low Lxvel Tunnrl Co. Tbis was an action to recover the sum of £81 for work and labor done under a contract for the driving of tunnel. Mr Lynch appeared fer the plaintiff and Mr Menteath for the defendants. Mr Lynch having opened the ease, called the following evidence : — Arthur Elliston .* I am a contractor, and the party who signed the contract produced with tbe defendants ; Ide not recollect tbe date of the first payment ; the company's pay-day was the first Monday in tho month ; the £76 of retention money had eccrued; owing to non-payment by the company, we wore unable to pay for material to carry on the contract,- and en, October j Ist I wrote to the directors stating my intention of abandoning the contract through the non-payment of moneys dne ; on the 18th Oct. we had received everything due by the company except the retention money ; at that time work in the tunnel had been stopped six weeks. By Mr Menteath :. the letter produced is in* my writing ; it is dated 27th Oct., ISB4, and notifies my determination to rescind the contract; on the 20th Oct, tho company wrote to me asking whether I had thrown up tho contract, or whether I intended to go to work, and my letter was a reply thereto ; up to that time all the contract money except the retention money had been paid ; on the 22nd Oct., I had ceased to work on the contract, and bad no interest in the contract beyond a share in the percentage money ; the company refused to release me from the contract ; under the contract we were to keep six men on ; possibly we did not always h»>ve that number at work ; three months previous to September we had the full number of men employed. Mr Jjj nob said he would put in the engineers certificate that the work was properly carried on. Mridenteath said the the fact was tlie- company had treated the contractors with great leniency, in every way. Cross Examined : Original Iy the contract did not pay ; but suhoeqently it did pay sufficiently to justify the con- : tractors going on ; don't think tbe contractors were anxious lo throw- up the Work because they could make nothing; I did* write tr/the directors asking for some concessions ; I did not demand payment of the Company for the amount due; none of the cheques paid to me by the company were dishonored; .1 was working on tbe Ist October; the contract stopped en the sth September; King and Mulvay drew money for me; they acted as my agents in drawing the money ; when we started $he, contract we thought it would take eleven or twelve months te complete;. did not complete it it; did -not inform the Company of my intention to oharge interest ou the percentage money. William King: lama miner residing at Brnnnerton ; I was one of tho contractors with Elliston and Mulvay in the Lew Level contract ; I was in the habit of going te tbe Company's office fer payment of progress money ; the first 7 months accounts in arrears was June ; July was not paid and we kept on : there was £50 dne at the end of August and £89 of the August account ; I called at tbe office as usual for the money ; on the sth September 1 went to ihe office and was told that the Engineer had put in his certificate ; I aiked for payment and was told that the company had no money ; Mr Wise said he would like us to sign the paysheet as unless I did so he could not get the Government subsidy down ; I did sign ; on the 13th September I received £50 ; I did net receive £25 on the sth Septem-ier and £25 en the 15th of the same month ; received a cheque for £25 on the sth of September but there was no money to meet it ; when I applied to the manager he told me the company had ne funds available, and I then informed him we j could not carry on th 6 work ; did not receive the cheques as payment fer tbe work, never agreed te extend the time ef payment. By Mr Menteath : On receiving the cheques tbe manager told me not to present them till he told me, as there was no money ; waited some time and then presented the cheques and they were not paid ; the contract was not* at the time paying ordinary wages ; ceased work on September sth ; no j work was dene up to tho Ist October except securing the timber; while I was in the contract the last three months there was six men on all the time ; Elliston was not then working in the contract but had two men work ing shares whioh had been held ; the contract was for 500 ft. **nd 270 ft was left, thus making the total distance driven 280 ft; Mr Wise told me the cheque would net be paid, but I thought I would go to the bank and see for ' myself. This closed the case. Counsel then summed up upon the evidence. Mis Honor indicated tho nature of the action.and after reviewing the law and facts •f the case, said there was substantially no conflict on the facts. The real point in issue was as to whether tho contract was or was not an entire one. If it was an entire contract thon its entire completion was a condition precedent to entire Eyment. He must hold, whatever the rdship involved, that the contract was an entire one, and as plaintina had not completed it, they had no ground of action. Ha decided the case upon Unlaw, ao as to give the plaintifh, if thoy

j desired, aa opportanity for appeal. He r was always fclad te adept this course whew j practicable, so as to leave his docanon j Open for review. ' Mr Menteath applied for coats, wbtchr wore allowed, professional fee £4 1% witness £1 and casta of Court 14/-,- total £6 165. . "