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Les cartas, planches, tableaux, etc.. peuvent dtre filmis A des taux de reduction diff^rents. Lorsque le document est trop grand pour dtre reproduit en un seul clich*. il est film* A partir de I'angle sup«rieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images ndcessaira. Les diagrammes suivants illustrant la mithode. rata lalura. I it 3 32X 1 In the Supreme Court of British Columbia, On Appeal to the Full Court. Between DAiNIEL FOWLER ADAMS, AND '''\ SIMEON DUCK, (By Original Action,) Plaintiff, Defendant. And Between The Said SIMEON DUCK, AND The Said DANIEL FOWLER ADAMS, (By Counter Claim.) Plaintiff, Defendant. CASE ON APPEAL. H. B. W. AIKMAN, Solicitor for Appellant, (Plaintiff.) S. PERRY MILLS, Solicitor for Respondent, (Defendant) is>- vioTOKiA, B. c. : JAMK8 A. OOHEN's ELEOTKIC PRINT. 1803. kLW INDEX. statement Statement of Olaim Statement of Defence and Counter Claim Counter Claim Amended Joinder of Issue and Answer to Counter-Claim Answer to Counter-Olnim Counter-Claim Amended Rejoinder Particulars of Waiver Agreement foi iVork Materials Transcript of Stenographer's Notes of Testimony Daniel Fowler Adams, direct examination of Daniel Powier Adams, croBS-examinntion of Daniel Fowler Adams, ro-exnmination of John Anderson, direct examination of John Anderson, cross-examination of John Anderson, re-examination of William Walter Northcotte, dirert examination of Charles Henry Wilson, direct examinntion nf Charles Henry Wilson, cross-examination of Morris Law, direct examination of Morris Law, cross-examinnlion of Daniel Fowler Adams re-called Daniel Fowler Adams, i-.oss-examination of Alexis Leroy Wellman, direct examination of Alexis Leroy Wellman, cross-examination of Daniel Rufus Martin,.direct examination of Daniel Rufus Martin, cross-examination of James Munroe Miller, direct examination of James Munroe Miller, cross-examination of James Munroe Miller, ro-examination of Eli Beam, direct examination of. Eli Beam, cross-examination of Eli Beam, le-exnmination of Simeon Duck, direct examinal ion of Simeon Dnck, cross-examination of Simeon Duck, re-examination of William Ridgeway Wilson, direct examination of William IJidgeway Wilson, cross-examination of Willifim Ridgeway Wilson, re-examinatiiu of Simeon Duck re-called Thomas Trever Hull, direct examination of Tbomns Trerer Hull, cross-examination of Judgment, Drake J Judgment Notice of Appeal •AGE. 4 i r, 7 S !) 9 10 . 16 15 82 60 64 C9 75 76 76 79 81 83 83 84 85 93 96 97 98 99 101 103 103 104 104 108 1J4 115 116 116 117 118 119 120 126 125 In the Supreme Court of British Columbia, liETWEEN DANIEL FOWLER ADAMS, AKD SIMEON DUCK, (By Original Action,) And Between . ' . The Said SIMEON DUCK, ;'. - . AND ' The Said DANIEL FOWLER ADAMS, Plaintiff, Defendant. Plaintiff, Defendant. (By Counter Claim.) 10 STATEMENT. This i.s an appeal from so much of the judgment of the Honourable Mr. Justice Drake, dated the i8th day of October, A. D. 1893, as directs that judgment be entered for the Defendant in respect of the amount claimed for demurrage on the grounds that the delay in respect of which the demurrage was claimed was occr^sioned by the act of the Defendant 20 in the following particulars : — (i.) In failing to give possession of the premises occupied by his tenant, by reason of which the work was delayed till the 31st of August 1892. (2.) In failing to give plans for the construction of the elevator until the month of September which was the reason of the delay subsequent to the 31st of August 1892. i f ■ STATEMENT OF CLAIM. The plaintiffs claim is for the balance due on a contract for the erection of a building on Hroad Street, in the city of Vitoria, R C, made on the 28th day of March, 1892, between the defendint and one Frederick Grant, which said contract was assigned to the plaintiff by and with the consent of the defendant, and for work performed and material supplied by the plaintiff for and on account of the defendant at his request. The following' are the particulars: 189^. March 28- To contract price for said building " material supplied and work performed for de- fendant by plaintiff April 16. By paid Frederick Grant on account of contract. . . May 21. " " plaintiff " " " ", ••• June M. " " " " ' ••• June ^o. " " " " ••• July 9. " ' " " ' " • • • Dec. 17. " " Dec. 17. " " •' " • " formed and material supplied $17400 00 308 43 10 wok-k pcr- 2000 00, 2000 00 3000 00 3000 00 I 500 GO 1550 00 30 CIO $13080 00 $17708 4320 Balance due plaintiff 4628 43 $17708 43 $17708 43 Place of trial at the Court House, Bastion Square, Victoria, B. C Arthur L. Belyea, Plaintiffs Solicitor. And the sum of $25.00 (or such sum as may be allowed on taxation) for costs. If the amount claimed is paid to the Plaintiff or his Solicitor or Agent within four days from the service hereof, further proceedings will be stayed. STATEMENT. .OF DEFENCE AND COUNTER CLAIM. • ■ DEFENCE. 80 The defendant says that: I. Except as to $13080.00 parcel of the money claim.ed by the plaintiff and which said sum was paid to and received by the plaintiff before action brought the architect Mr. 1 Jp W. T. Whiteway did not prant his certificate (nnsur'nt to tlic contract made between tlie defendant and l>>ederick Grant dated the 20th March 1.S93 and which was subseqiieiith' assigned and confirmed by indenture dated the 2Cth day of April i8y2 mad'- between Frcdcricl< Grant of the first part and the plaintiff of the second part ntid the defendant of the third part. 2. It was a term of the said contract of the 28th March iS(j2 that tlie jilaintiff- should not be entitled to the fine. ; lymcnt under it in respect of the work done until such work had been done to the satisfa. f.on of Mr. \V. T. Whiteway the nrrhitect and his cer- tificate in writing' given. 3. The work has never been app i vcd by the said Mr. W. T. Whiteway the archi-10 tect nor has he given his final crt -ate in writint'. ... 4. The defendant did not order any of the extras or additional work claimed for. 5. It was also a term of the said contrai-i that the plaintiff should not be entitled to recover for any extra or additional work un'e.ss the said work should be done in pursuance . of an order from the architect and that notice of all claims should be made to Mr. W. 1". Whiteway the architect in writing within ten days of the beginning of such work. 6. Mr. W. T. Whiteway the architect did not order any of the extra or additional works in writing or otherwise neither did the plaintiff make any claim in writing for the said work within ten days of the beginning of such work (if nny). 7. The defendant is not indebted to the plaintiff in the sum of $4618.43 or any sum -0 whatever until the plaintiff has complied with the terms and conditions of the said con- tract. 8. The contract contained a clause that no architect's certificat'* given or pa\'mcnt made under the contract except the final certificate or final payment should be conclusive evidence of the performance of the contract either wholly or in part against any claim of the owner (meaning the defendant) and no payment should be construed to be an accept- ance of any defective work. 9. The i iaintiff has not given the defendant good and sufficient evidence that the premises are free from all liens and claims chargeable to the plaintiff in accordance with the said contract. qrv 1891 10. The plaintiff has not complied with section 12 of the Mechanics' Lien Act II. It was a term of the said contract and of the specifications that th'' plaintiff should give the defendant a written guarantee that the roof should be perfectly satisfac- tory for at least two years from the time of finish except as therein mentioned. 12. The plaintiff has not given the defendant the written guarantee as required in the specificp.tions. ■ , COUNTER CLAIM. The defendant says that: 1. The contract contained a clause that should the contractor be ob.structed or de- layed in the prosecution, or completion of the work by the neglect delay or default of any other contractor or by any alteration which might be required in the said work or by any damage which might happen thereto by fire or by the unusual action of the elements or otherwise or by the ab:\ndonment of the work by the employees through no default of the contractor th'^n there should be an allowance of additional time beyond the date set for^,, the completion of the said work but no such allowance shou'd be made unless a claim was presented in writing at the time of such obstruction or delay and that the architect should award and certify the amount of additional time to be allowed in which case the contrac- tor should be released from the stipulated damages for the additional time so certified and no more. The contractor may appeal from such award to arbitrators constituted as there- in provided. 2. The plaintiff did not apply in writing for further time as provided in the said contract 3. The defendant is entitled to a set-off or counterclaim of $870.00 for liquidated 20 damages under the said contract whereby it was agreed between the plaintiff and the defendant that in consideration of the payments to be made by the defendant to the plain- tiff as therein mentioned the plaintiff should erect certain buildings for the defendant and should complete them on or before the ist day of August 1892 and that if the plaintiff should not complete them on or before that day he should pay to the defendant as liqui- dated damages $10.00 for each day after the ist day of August 1892 during which the building should remain unfinished and tne plaintiff did not complete the said buildings on or before the 26th day of October 1892 and the same remained uncompleted for 87 days after the said i,st of August 1892 and thereby $870.00 became payable by the plaintiff to the defendant as such liquidated damages as aforesaid. • }^() 4. A portion of the work was done in such an imperfect and negligent and improper manner and through the bad and improper materials used by the plaintiff therein and through materials omitted by him that the defendant had to provide material and labor in and about the premises in having the same properly done and completed and made payments and incurred expen.ses in respect thereof and had ttj take up and re-execute por- tions of the work and also had to do portions of the work which the plaintiff had omitted according to the terms of his contract with the defendant. The following are the particulars: fl 7 Defective work disallowed by architect $ y? oo Elevator imperfect defective and unworkable lOO oo Paid carpenter for work on ash shoot 2 50 Paid for rubber on ash shoot 2 50 Back vents in closet bowls omitted 50 00 Paid for work on ash jhoot 2 50 Paid for self-closing cocks omitted, etc 23 50 Five days work putting in new water pipe^ in building, no stop or Wiste cocks being put in by plaintiff as required by contract which omission caused pipes to burst IS 00 10 Paid Messrs. Tye & Co. for 3 T's and union 55 3 2 feet ^ pipe at 11 cents 3 52 Paid Messrs. Prior & Co. for pipes etc 13 75 Cash paid for mantel and setting 100 00 Paid Lindsay for hauling back lumber etc. taken away by Grant i 50 $392 32 Less work done by plaintiff for defendant outside of contract 3 30 $389 02 Water rate payable by the plaintiff for which the defendant has been charged by the corporation of the city of Victoria for which the plaintiff is liable under the 20 contract 22 65 The defendant by this counter-claim claims agairist the plaintiff For liquidated damages in not completing the building in the time mentioned in the said contract 870 00 For defective work and work omitt^ d to he done as hereinbefore mentioned. . . . 389 02 Water rate payable by the plaintiff for which the defendant has been charged .... 2265 $1281 67 S. Perry Mills, 46 Langley St., Victoria, B. C. gn Defendant's Solicitor. Delivered this 28th day of February 1893 To the Defendant and to Mr. A L Belyea his Solicitor. AMENDED JOINDER OF ISSUE AND CLAIM. ANSWER TO COUNTER- The plaintiff joins issue upon the amended statement of defence herein except in so far as the same contains admissions. ,^», 2. The plaintiff in answer to paragraphs 4, 5, and 6 of the Statement of Defence further says that if the allegations therein contained be proved the defendant and his archi- tect by their conduct and representations during the progress of the said work and after its completion waived the said provisoes. ANSWER TO COUNTER-CLAIM. 1. The plaintiff in ansvver to paragraphs i, 2, and 3 of the Counter-CIaim of the defendant denies that there was any delay in the prosecution or completion of the said work as alleged and in the alternative says that the delay (if any) was caused first by the neglect and refusal of the defendant's said architect to furnish proper and necessary plans and specifications of the work from time to time as required and when requested by the 10 plaintiff or his workmen so to do. And second by the refusal and neglect of a tenant of defendant's in removing certain printii.g machinery and other materials from certain prem. ises over which a portion of the building herein in question was and is built, whereby the plaintiff was greatly delayed and hindered in the prosecution of his work. And the plain- tiff submits that the defendant ought not to receive from the plaintiff any of the said moneys so alleged to be forfeited by way of penalties or deduct the amount of such alleged penalties out of any moneys payable by the defendant to the plaintiff in respect of work done labor performed and materials provided under the said agreement. 2. In answer to paragraph 4 of the Counter-Claim the defendant denies that any portion of the said work was done in an imperfect negligent or improper manner and says 20 that if any such be proved that the same was accepted by the architect as hereinafter stated. 3. The plaintiff further says that previous to the 19th day of October 1892 he had frequently requested the said architect to inspect the work and notify him (plaintiff) of all and every matter and thin^ therein requiring alteration or completion. That the architect did notify plaintiff of certain work remaining unfinished on said building which work the plaintiff completed and finished except the items hereinafter specially mentioned. Finally on or about the 19th October 1892 the defendant and his architect agreed with plaintiff that as to the following matters namely: Cement work in rear $28 50 [iQ Rear door jambs in stores not properly done, costs to replace 30 00 3 stop and water cocks omitted 15 00 Removing stone from rear of building 2 00 Ash shute doors to be secured i 50 That a deduction should be made therefor from the contract price and thereupon the said architect granted the plaintiff in writing hii final certificate for the said work debiting therein plaintiff with $77.00 the amount of above deductions and defendant accepted the said works. TT ■ *-" —'-■-■■- ^" COUNTER-CLAIM, And by way of Counter-Claim the plaintiff repeating the allegations contained in paragraphs i, 2 and 3 of the answer to Counter-Claim of defendant claims against the defendant the sum of $870.00 as damages for delay occasioned by the default of the defendant. Filed and delivered this i day of October A. D. 1893 by H. B. W. Aikman of the firm of Drake, Jackson & Helmcken, 20 Bastion Street, Victoria, B. C. Solicitor for the plaintiff. To the Defendant and to S. Perry Mills Esq his Solicitor. AMENDED REJOINDER. ]0 The defendant denies all and every of the allegations contained in paragraph 4 of the plaintiffs statement of reply and says that the defendant did not nor did his architect by his or their conduct and representations during the progress of the said work and after it alleged completion or at any other time waive any of the conditions in the agreement under seal under which the said works alleged alterations additions and extra work were done and performed by the plaintiff. That there was no other contract between the plain- tiff and the defendant than the said agreement under se.il uiid that the defendant has not discharged the plaintiff by deed or otherwise from any of the conditions of the said agree- ment under seal or otherwise waived them. Filed and delivered this 1 6th day of October 1893 by S. Perry Mills of 46 Langley 20 Street Victoria British Columbia Solicitor for the defendant. To H. B. W Aikman Esq. of the firm of Messrs Drake Jackson & Helmcken Solici- tors for the plaintiff. • Amended by leave of the Honorable Justice Drake the i6th day of October 1893. PARTICULARS OF WAIVER. The following are the particulars of the plaintiffs claim of Waiver: 1. That the course of dealing was for the architect to consult with the plaintiff's fore- man as to matters outside the contract and tu decide upon the character and amount of work to be done extra. 2. That in some instances a final tender was put in by the p'aintiff or his foreman 30 and other occasions amount of work and price was verbally arran};ed. 3. That in no case did the architect or the defendant give an order in writing. 4. That this was the course pursued with reference to all the plaintiff's particulars ./%., ,sgtJi.^;.^4aaMtoi|iiff^^ which are claimed as extras to the contract also it was the course pursued with reference to the item of $30.00 extra which the architect allowed in his 6th certificate. 5. That the defendant and his architect in all the instances discussed the matters with the plaintiff or his foreman and required the work to be done on the footing that they were extras, and the defendant has taken the benefit of the work done knowing that the plaintiff had been led to believe by the conduct of the architect that they would be paid for as extras. 6. As to items i, 2, 7, 13, and 17 the plaintiff claims that they were specially order- ed by the defendant personally. 7. As to items 3, 5, 7, 9, 11, 12, 13, 14, 16, 17, 18 and 20 are matters dehors thelo contract which the plaintiff performed at defendant's request and which the defendant has taken the benefit of. Delivered this i6th day of October A. D. 1893 by Hugh Bowlsby Willson Aikman of the firm of Drake Jackson & Helmcken 20 Bastion Street Victoria Plaintiffs Solicitor. To S. Perry Mills Esq. Defendant's Solicitor. AGREEMENT FOR WORK MATERIALS. Know all Men by These Presents, that we, Frederick Grant, contractor, as principal, and Daniel Fowler Adams as surety, both of the City of Victoria, B. C, are held and firmly bound unto the said Simeon Duck of the same place in the sum of Ten Thousand Dollars ($r 0,000. 00) for which payment well and truly to be made we bind 20 ourselves, and each of oar heirs, executors, and administrators jointly severally and firmly by the.se presents sealed with our seals and signed this 28th day of March 1892. The condition of the above obligation is such that whereas the above bounden principal has this day entered into an agreement with the said Simeon Duck and which is hereunto annexed marked " A." Now therefore if the above bounden principal shall well and truly complete and finish said building and works according to said plans and specifications and the terms and conditions in the agreement hereunto annexed and pay and discharge all mechanics' liens damages claims and accounts for material furnished work done and labor performed in and about the erection and completion of the said building and works men- tioned in the said contract and all and every the several expenses damages and costs per-;^0 taining thereto or arising therefrom then this obligation to be void otherwise to remain in full force and effect. Signed Sealed and Delivered by both parties^ in the prence of Wm. H. D.\NBY. f Real Estate Agent, I Victoria, B. C J FRED GRANT. D. F. ADAMS. {-} 1 f 11 'A" Signed by both parties in the presence of W. H. Dan BY, Victoria, H. C. Thij is the Agreement referred to in the bond hereunto annexed FRED GRANT. D. F. ADAMS. VV Whiteway, Architect. This Agueement made the 28lhday of March in the year of Our Lord one thous- and eight hundred and ninety two by and between Frederici< Grant of the City of Victoria Province of British Columbia as the party of the first part (hereinafter designated the Con- ] o tractor) and Simeon Duck of the same place as the party of the second part (herenafter designated the Owner), WITNESSETH that the contractor being the said party of the first pait in consideration of the covenants and agreenicnts herein contained on the part of the owner being the said party of the second part do covenant promise and agree with the said owner in manner following that is to say : — 1st. The contractor shall and will well and sufficiently perform and finish under the direction and to the satisfaction of W. T. Whiteway Architect (acting as agent of the said owner) all the work included in the drawings and specifications hereunto annexed marked " B " of a three story building to be erected on lots i 59a and i6oa block 2 in the City of Victoria Province of British Columbia for the party of the second part agreeably to the iM) drawings and specifications made by the said architect and signed by the parties hereto (copies of which have been delivered to the contractor) and to the dimensions and explan- ations thereon therein and herein contained according to the true intent and meaning of the said drawings and specifications and of these presents including all labour and materials incident thereto and shall provide all scaffolding implements and cartage necessary for the due performance of the said work. 2nd. Should it appear that the work hereby intended to be done or any of the mat- ters relative thereto are not sufificiendy detailed or explained on the said drawings or in the said specifications the contractor shall apply to the architect for such further drawings or explanations as may be necessary and shall conform to the same cis part of this contract as ;<(> far as they may be consistent with the original drawings and in the event of any doubt or question arising respecting the true meaning of the drawings or specifications reference shall be made to the architect whose decision thereon shall be final and conclusive. It is mutually understood and agreed that all drawings plans and specifications are and remain the property of the architect. 3rd. Should any alterations be required in the work shown or described by the drawings or specifications a fair and re£Lsonable valuation of the work added or omitted shall be made by the architect and the sum herein agreed to be paid for the work accord- ing to the original specification shall be increased or diminished as the case may be. In case such valuation is not agreed to the contractor shall proceed with the alteration upon 40 the written order of the architect and the valuation of the work added or omitted shall be !l!l I'ii! 1 ill! ■\ m 4.. ■^wjjaima-g-aw 1: referred to three (3) arbitrators (no one of whom shall have been personally conncctoil with the work to which the^e presents refer) to be appointed as follows : one by each of the parties to this contract and the third by the two thus chosen the decision of any two of whom shall be final ai d binding and each of the parties hereto shall pay one-half of the expense of such reference and every such reference shall be deemed an arbitration within the Common Law Procedure Act 1854 and the submission to arbitration may be made a rule of the Supreme Court of British Columbia nt the instance of cither party. 4th. The contractor shall within twenty-four hours after receivini,' written notice from the architect to that effect proceed to remove from the grounds or building all materials condemned by him whether worked or unvvorkcd or take down all portions of the work 1(( which the architect shall condemn as unsound or improper or as in any way failing to con- form to the drawings and specifications and to the conditions of this contract. The con- tractor shall cover protect and exercise due diligence to secure the v/ork from injury and all damage happening to the same by his neglect shall be made good by him. 5th. The contractor shall permit the architect and all persons appointed by the archi- tect to visit and inspect the said work or any part thereof at all times and places during the progress of the same and shall provide sufificient safe and proper facilities for such inspection. 6th. The contractor shall and will proceed with the said work and every part and detail thereof in a prompt a>^d diligent manner and shall and will wholly finish the said •_;() work according to the said drawings and specifications and this contract on or before the 1st day of August in the year one thousand eight hundred and ninety two (provided that possession of the premises be given the contractor and lines and levels of the building fur- nished him on or before the first day of April in the year one thousand eight hundred and ninety two) and in default thereof the contractor shall pay to the owner the sum of ten dollars for every day thereafter that the said work shall remain unfinished as and for liqui- dated damages $10.00. 7th. Should the contractor be obstructed or delayed in the prosecution or completion of the work by the neglect delay or default of any other contractor or by any alteration which may be required in the said work or by any damage which may happen thereto by ;;() firo or by the unusual action of the elements or otherwise or by the abandonme ,t of the work by the employees through no default of the contractor then there shall be an allowance of additional time beyond the date set for the completion of the said work but no such allow- ance shall be made unless a claim is presented m 'vriting at the time of such obstruction or delay. The architect shall award and certify the amount of additional time to be allowed in which case the contractor shall be released from the payment of the stipulated damages for the additional time so certified and no more. The contractor may appeal from such award to arbitrators constituted as provided in article 3 of this contract 8th. The contractor shall not let or assign or transfer this contract or any interest therein. _^, , I I I! ' ! I : ■ I I) ■ ilillli iii!! 'illiilli! iff 1 ! MM! 13 9th. The contractor shall rnake no claim for additional work unless the same shall be done in pursuance of an order from the architect and notice of all claims shall be made to the architect in writing within ten days of the beginning of such work. loth. The owner agrees to provide all labour and materials not included in this con- tract in such manner as not to delay the material progress of the work and in the event of failure so to do hereby causing loss to the contractor agrees that he will reimburse the con- tractor for such loss and the contractor agrees that if he shall delay the material progress of the work so as to cause any damage for which the owner shall become liable (as above stated) then he shall make good to the owner any such damage — over and above any dam- age for general delay herein otherwise provided; the amount of such loss or damage in either !•• case to be fixed and determined by the architect or by arbitration as provided in article 3. I ith. The owner shall ehcct insurance on said building in his own name and in the name of the contractor against loss or damage by fire in such sums as may from time to time be agreed upon with the contractor the policies being made to cover work incorpo- rated in the building and materials for the same in or about the premises and made pay- able to the parties hereto as their interest may appear. 12th. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen or of materials of the proper quality or fail in any respect to prosecute the work with promptness and diligence or fail in the performance of any of the agreements on his part herein contained such refusal neglect or failure being certified by'JO the architect the owner shall be at liberty after three days written • otice to the contractor to provide any such labor or materials and to deduct the cost thereol from any money then due or thereafter to become due to the contractor under this contract and if the architect shall certify that such refusal neglect or failure is sufficient ground for such action the owner shall also be at liberty to terminate the employment of the contractor for the said work and to enter upon the premises and take possession of all materials thereon and to employ any other person or persons to finish the work and provide the materials therefor and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished at which time if the unpaid balance of the amount to be pnd under this contract shall •i" exceed thcr expense incurred by the owner in finishing the work such excess shall be paid by the owner to the contractor but if such expense shall exceed such unpaid balance the contractor shall pay the dififcrence to the owner. The expense incurred by the owner as herein provided either for furnishing materials or for finishing the work and any damage incurred (through such default shall be audited and certified by the architect whose certifi- cate thereof shall be conclusive upon the parties. 13th. And it is hereby mutually agreed between the parties hiTeto that the sum to be l)aid by the owner to the contractor for the said work and materials shall be seventeen thous- and four hundred ^^^j dollars ($17,400.00) subject to additions or deductions on account of alteration as hereinbefore provided and that such .sum shall be paid in current funds by the 40 owner to the contractor in installments as follows : — Seventy-five per cent, of the work done as the building progresses subject to the estimate of the architect in seven (7) pay- lil Hiiii m m ■ hn I if hi! 'm 14 merits ; the final payment being twenty-five per cent, of tlie contract price. It being understood that the final payment shall be made thirty two days after this contract is com- pletely finished ; provided that in each of the said cases the architect shall certify in writ- ing that all the work upon the performance of which the payment is to become due has been done to his satisfaction ; and provided further that before each payment the contrac- tor shall give the owner good and sufficient evidence that the premises are free from all liens and claims ch-^rgeabie to the said contractor ; and further that if at any time there shall be any lien or claim for which if established the owner of the said premises might be made liable and wiiich would be chargeable to the said contractor the owner shall have the right to retain out of any piyment then due or thereafter to become due an amount suffi- 10 cient to completely indemnify himself "gainst such lien or claim until the same shall be effectually satisfied discharged and cancelled. And should there prove to be any such claim after all payments are made the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in con.sequcnce of the former's default including therein the costs thereof. 14th. It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract except the final certificate or final payment shall be conclusive evidence of the performance of this contract either wholly or in part against any claim of the owner and no payment shall be construed to be an acceptance of any defective work. 20 1 5th. And the said owner hereby promises and agrees with the said contractor to employ and does hereby employ him to provide the materials and do the said work accord- ing to the terms and conditions herein contained and referred to for the price aforesaid and hereby contracts to pay the same at the time and in the manner and upon the conditions above set forth. 1 6th. And the said parties for themselves their heirs executors administrators and assigns do hereby agree to the full performance of the covenants herein contained. It is hereby expressly agreed and declared that the contractor shall not have any power to give any order or orders addressed to the owner or architect for the payment of any moneys sum or sums of money payable or to become payable by virtue of this contract or assign ;U) any mone)' or monies payable or to become payable under or by virtue of this contract and if any such order or assignment be given or '.lade the same shall be null and void notwithstanding any law to the contrary. The contractor shall hold the owner harmless and indemnify him of and from any claims for injuries to persons or for structural damage to property happening from any neglect default want of proper care or misconduct on the part of the contractor or anyone in his employ during the execution of the works. IN WITNESS whereof the parties to these presents have hereunto set their hands and seals the day and year first above written. Signed Sealed and Delivered by the said Frederick Grant in the presence of W. H. Dan BY, Victoria, R C. FRED GRANT, L.S. } 40 :!I li n ! >'W 15 Signed Sealed and Delivered by the saidj Simeon Duck in the presence of JEROME E. Church, Victoria, B. C. SIMEON DUCK, { --■ } Victoria, Monday, i6th October, 1893. Court met at II am. . Mr. Bodwell and Mr. Helmcken appearing on behalf of plaintiff. Mr. Mills appearing on behalf of defendant TRANSCRIPT OF STENOGRAPHER'S NOTES OF TESTIMONY. DANIEL FOWLER ADAMS, the plaintiff, being called on his own behalf, and 10 sworn, testified as follows :^ Direct Examination by Mr. Bodwell. Mr Bodwell. The contract is admitted on the pleadings, and the assignment is admitted. Your Lordship has a copy of the contract ; and it is not necessary to put in a copy of the assignment The Court No. Q. You are the plaintiff in the action, Mr. Adams ? A. I am ; yes. Q. On the contract in question, who was your foreman of brick work? A. John Anderson. Q. Who was your foreman of carpenter work ? A. Moses McGregor, for a time. 2i) Q. Moses McGregor for a time; who afterwards? A. Albert Corbett Q Did you have any sub-contracts on the work? A Most all of it sub-contracts; except the brick work and the frame carpenter work, that was all done by the day. Q. The brick work and the framing. A. Yes. Q. The finishing carpenter work was done under sub-contract? A. All the other trades and the finishing was subs. Q. What was the finishing work you say was sub-contracted ? A. Yes. Q. That included what ? Just explain to his Lordship. !i iiJ!;; h Wd' )M, t ''I' i|'„'!l •«. — ^.ij*,. 16 Mr. Mills. I object to that. The contract is in writing. Mr. Bodwali. It is in the de betie esse examination of Weilman and Martin. The Registrar produces the examination. The same was handed to witness. Q. That is the contract with Hutchings and Weilman and Martin? A. Yes. The Court. Q. Finishing contract ? A. Yes. The Court. Q. The finishing work was subcontracted for ? A. Yes. Mr. Bodwell. The agreement is dated the fourth day of July, 1892, made between the plaintiff Adams, and Wm. Hutchings, A. L. Weilman, and D. R. Martin. (Reading same). 10 Q. This does not state in detail what the finishing work was, but as a builder and contractor, I suppose you know what the contract to finish is ? A. It was meant to com- plete the building ; that is the meaning of that document. Mr. Mills. I object to that evidence, my Lord ; the contract speaks for itself. The witness. It covered everything. The Court. The technical expression used there — I am entitled to know the mean- ing he puts to a technical word. He should know whether it is finished right Q. Tell his Lordship what work remained to be done at the time that finishing con- tract was given — generally. A. The floors were to lay ; all the doors and openings to be cased ; doors hung, and 20 all finishing put in. The Court Q All the carpenter finish of the building? A. All ; everything after the frame was in. The shiplap, the first of the floor, was laid, and they were to finish it from that on ; to complete everything. Q. I notice that your contract there states that they were to finish it to the approval of the architect. A. That was the intention. Q Was the contract ccrr'.plied with ? A. For a time it was. The architect gave these men a certificate that the work was done to his satisfaction. Objected to. The witness. And afterwards he brought them in to give evidence against their own ;^o work. H II: 17 Mr. Mills. I object to that ; that is a document in writing. The Court. It is a fact whether the certificates were given or not. Q. A certificate was given, and on the production of that certificate you paid those men for their worl< ? A. I did. Q. I wish now to call your attention to the circum.stances surrounding the getting a final account from Mr. Whitcway. Will you jast commence at the beginning of that part of the evidence, Mr. Adams, and tell me what took place ? When, in the first place, did you have any interviews with Mr. Whiteway as to taking over the building and giving you a final certificate ? A. I was it him every day. Q. Well I know ; but at about what time did these things come to a head ? A. They lo commenced in August. The Court. Q. What year? A. Last year, 1892. Q About the 12th of October did you have any interview with Mr. Whitcway on that point ? A. I think so ; yes. Q. Tell us what took place thea A. I asked him to state — make a statement of what he wanted done. The Court. That is on what d-ite ? Q. About the 12th of October, 1892. A. They kept pointing out what they wanted to be done, and I kept doing it ; ordered it to be done, ordered the men to do it. Q. And finally you asked him to give you a complete statement of what he wanted 20 done? A. I did, yes. He made a statement out as a whole, with a lead pencil. Q. It was in writing ? A. Yes. Document produced and handed to Mr. Mills. Mr. Mills. There is no date on that. Q. (Handed to witness) Is a document that you received from Mr. Whiteway at the time? A. I did, yes. Mr. Bodwell. You don't object to that ? Mr. Mills. I don't object to it. Document put in evidence, and marked Exhibit A 2. Q. Now, that document, Mr. Adams, I see, contains a li.st of items to be finished. 30 A. Yes. ■llii iilil lilil! L > -i^UiaKKtUK£a&i£ 18 Q. Did you make any request to Mr. VVhiteway with reference to that document ? A. I did. Q. What was the request? A. I requested him to make it out separate for the differ- ent trades, the different sub contractors, so that I could furnish them with a copy of their unfinished work. Q. Did he do so ? A. He did. . • Q. Are these the documents that you received ? (Handed to witness.) A. Yes. Q. Look at the other one. Simply a classification of the other work. The Court: Those will be marked C and D. Documents put in marked C and D. ' 10 Q. After having received those two documents from Mr. Whiteway, was anything done ? A. Oh, yes ; a good deal done ; I tried to do everything. Q. You tried to do everything that was required ? A. I did everything that was asked to be done ; Mr. Duck was present at the time ? I asked him if there was anything more to do. Q. In the first place you went to work and did these things according to the architect's directions? A. Yes. Q. Having done that did anything else occur? A. Yes. Q. What ? A.I asked him what more was to be done, and they thought — Q. What more was to be done. A. — it was not worth while to do any more but 20 they would make up a lump sum. Q. You asked him what more was to be done ; and in consequence of asking him that, did you meet him and Mr. Duck at the building? A. I did, yes. Q. What took place, now, when you came there at the building ? Could you give the date when you met ? A. I couldn't give the date exactly, no. But Mr. Duck sug- gested that a certain sum be deducted — Q. What did you do when you got up there in the first place ? Did you go and look over the building to find out ? A. Yes ; we looked over the building. Q. And after you had looked over the building, what was done then ? A. There was a good deal of talk about tho.se doors that was in crooked, where they knocked the3() spreaders out ; we talked a good deal about that ; and I told him I would have those doors straightened ; but he thought it would not be worth while, it would be better to put in a lump sum for those. li 1 ! ii' 1 'liliiiiill m ,<: 19 Q, Mr. Duck said so? A. Yes. And he and Mr. Wliitewa) agreed on that, then the certificate was made up on it Q. In consequence of that agreement, did you get any document in writing? A. Yes. Q. Is that the document (handed to witness) ? A That is very much lii(> Q. What did j-ou do or say ? A. I advised the truss to go in there with tension rods, that is queen rods. Q. Who with? A. Mr. Duck. It would cost him $3 to put in queen rods in there and save the whole business. Q. You talked with Mr. Duck about that? A. It was done so far as the wood that went in ; but the iron that would have saved the whole business was left out. li they had — to save the $3 it was not put in. , . O. You suggested the iron? A. Yes, sir, I suggested it, and told them it would be no good without the two iron rods to keep it up in the centre and help catch it back on the walls 30 O. As a result of that conversation with Mr. Duck this trussing was put in? A. They agreed to put it in, but they left the rods out. Q. Yes. The price charged, $63.37, that is a rea.sonable price, Mr. Adams? A. O, very loiv ; it was not half what it ought to be ; give me no profits at all on those changes there. i\ Ml ■■ Q. The yecond item charged tor here is a heel plate on rafters, \Vh:it was it, shortly, Mr. Adams? A. Well, the rifters were framed very (lat and they were just cut off here and spiked down. I told the architect that the first snow-storm that came would hrcik them down. O. It would break it that way ? A. Yes, sir, break tho.se nails and spread it. lie h:id a slot cut out of the joists and out of the rafters, and this heel-plate ru:i for the whole length of the building, on both sides. Q. That was in consequence of what you told the architect? A. Yes, sir ; to keep it from spreading. And then it was just nailed on in place of queen posts and braces, a plenty of them nailed on to keep it up. 1" Q. Was that in the plans? A. No, it is not. O. $8.70 is charged ; is that a reasonable price? A. I should think it ws. If th''t had not been done the snow would have smashed the roof down in winter. Q. Item number si.K, now ; repairing arch over stone wall ? A. That is where the girder goes into the front room, isn't it ? O. Yes? A. There was an arch there, a flat ,'Tch. The Court, Q. Is that in the old building ? A. It was provided for in the contract ; the girder crossing the entire building went into the stone-work about where the key-stone wns in the arch. Q. The girder was called for by the plans 'md specifications ? A. Yes, sir. "id Q. Where the girder was inserted into an arch there was some work done ? A. Yes, sir Q. What work was dnuc there ? A. You sec there was an old wall tfiere, and the new brick work stirtod u[) on that old w.ill. Well, this girder ran in right in at the crfiwn of the arch ; and I c.mc along and siw that sticking in there, and I saw it was not substan- tial, and recommended that a wooden lintel be put in there. O. Who did you speak to? A. To Mr. Duck ami Mr. Whitcvvay, both of them. Q. What did )'ou say? A. I said it shoukl come down and a .. ooden lintel put in ; and they ordered it lione. It was then done. Q Did they order it done while you were there? A. While the work was being ..q done, not wliile I wa-; ther.> ; I suppv-ic they consulted about it afterwards and had it done It was not |)rovided for in the specifications. Q. We were talking about the lintel in the front rooin. A. In the front room, j'es, under the girder, across the girder. -ft 28 Q. That is item number 20. The Court. Is not that an item that practically in fact has nothing to do with this building at all ? That is something to protect the other building with which he had noth- ing to do ? , , Mr. Bodwell. There are several of these items which I think arc outside of the con- tract and we are entitled to recover on a common count against Mr. Duck for work and labor done at his request The Court. Extras on contract are limited to the extras on the actual b"ilding un- der that contract ; and if a man has a contract to build a building and he is employed to do something else on the outside of the lot and his nothing to do with the building, that IQ does not come under the contract . ' " The witness. I would like to explain that That old building wall you sec was raised up. The Court Q. You put a second story on the old wall. A. Yes, exactly. The Court Q. And this is some work done in consequence of the old building, building on to the old building, building on to the old wall ? The witness. John Anderson can explain that Q. Brick filling. That is item number 16 on that list of particulars, my Lord. ... . The Court Beam filling. Q Beam filling, yes ; an item of $24. 1 5 in all. You know that was done, Mr t?0 .\dams ? A. I ordered it done, yes. Q. When was that work done, Mr. Adams? A. It was one of the last things done there. Q. Tell us about that time, did you have any conversation with anybody about that? A. Well, Mr. Duck was always talking about that, said it must be done it must be done. 1 asked the brick foreman if that was to be done, and he said it was not called for in the sjiecifications ; I told him to put it in anyway and I would charge an extra for it— to keep the time and we would charge him nn extra for it. The Court. Q. Mr Duck ordered it of you ? A Mr. Duck declared it must be done, wouldn't be satisfied without it I done everything he requested me to do. 80 y. You contended that it was outside the contract altogether ? A. That is what they did. Q. At any rate you did it ? A. Yes, the work was done. r Q. Tell us exactly what it was, so that we will have it on the evidence A I could nearly state it with a couple of books, I suppose. Q. Hold on, wait a moment ; is it in any way — A. I can do it better this way. (Illustrating with two booksj We will say here is the floor joists running throut^h, and they run out to that wall ; and they are left like this, you know, the brick wall with a pleat on it— there is a pleat on top of the brick wall to carry those flonr-joists. Now these spaces between the upper floor and the ceiling where it is plastered below is what is called the beam-filling ; the spaces between the floor-joists Q. Did the plans and specifications call for it ? A. No, and Mr. Whiteway said it did not. ] () Q. Who did Mr. Whiteway tell that to ? A. He told John Anderson. Mr. Mills. Q You were not present, were you ? A. I don't know whether I was or not Mr. Mills. I object to that, my Lord. Q Now, here is an item, number i8. Labor and material on arch in store, pl.nstering same ; altogether $33.00. Do you know what work that was, Mr. Adams? A. Yes. Q. Do you know from your knowledge as a builder whether or not that is a reason- able price for that work ? A. Very cheap. There should be 1 5 per cent added to that to make it right. The Court. Q. That is not included in the contract ? A. It is not. qq Q. What was it? Mr. Mills That was tendered for, we have got the contract, and it was paid for in the certificate of the $1,580, it was paid for. Mr. Bodwcll. Ju^t produce th-* d^cum.Mit, You admit that i» an extra ? Mr. Mills. It is the only extra ; I admit it was agreed to be done for $30, the whole of it. We have got it in writing here. Mr. Bodwcll. The only question is whether or not that has been paid. Mr. Mills I paid it myself. Mr Ho'lwell. 1 think it would be better if we could see the document. The Witness. I can explain it to >ou if you will let mc tell you where you arc mis- taken. M) 80 Document produced. Mr. Bodwell. You produce this document to show that $30 ha.s been paid, do you ? Mr. Mills. It says that $30 has been paid. Document put in evidence by Mr Rodwell, read ; marked exhibit G. The Court. That does not specify this particular item. I don't see that it h:is any reference to this particular part. Mr. Mills. But I have the tender ; that shows it. The Court. It better ^'o in as your evidence, then. Mr. Mills. Yes. Q. Did you suffer any damage in your work by reason of the delay which took place 10 in the completion of the building? A. Most certainly I did ; the work could have been done and paid for before if they hnd had half a show. Q. Tell me a little more particularly how the damage accrued to you ? A. Every- tiiing of that kind was delays. Q. About going on with your work ; could 3'ou have carried it on as economically and expiditiously — A. As much as could be done so. Q. — with those delays coming in ? A. If they hadn't jrot in my way I could have put in a force of men, it would have been as cheap to put in a force of 100 men as 20 ; but we couldn't get at the work. Q. Could you have made more profit then ? A. Of course ; the quicker a job is done 20 and got out of the way the more money there is in it. Q. Did you use every reason able dispatch, having regard to the obstacles in your way ? A- Put all the men on we could get — we could work. Q. And finished the job as quickly as you could under the circumstances, did you? A. Yes. Court here adjourned at 12:45 pni ""t" 2 p.m. AFTERNOON SESSION. At 2 p.m. of this day, Court met pursuant to adjournment. • Mr Adams the plaintiff being in the witness box ; direct examination resumed by Mr. Hod well : 30 If »1 Q. In reference to the sub-contracts, Mr. Adams ; you told us that there was — Well- man and Hutchings had this sub-contract for the finishing work ; who had the sub-contract for the plumbing work ? A. Waller & Downer. Q. Did you have a contract in writing with them ? A. Ves, they done the p!umbin<. work. Q. Have you a copy of that contract ? A. Well, there is no contract. Q. No written contract? A. Their tender went into the original contract with Grant. The contract was let before I took hold of it. Q. At the time the original contract was let they tendered ? A. Yes. A. And it was really part of Mr. Grant's contract then ? Yes, sir, all those contracts 1(1 were let except the joiner work before I got hold of the contract Q. Hut as a matter of fact the plumbing work was done by Waller and Downer? A. Yes. The Court. Q. They were all sub-contracts under the original contractor ? A, Yes. Q. Did they receive a certificate? A. I believe so, yes. I paid them money on some certificates they had. Mr. Mills. I will ask you to produce the certificates. Mr. Bodwell. We will when we call Mr Waller. He has the certificates, I think, himself. The Court Mr. Bodwell, I have had an opportunity of running through this con- 20 tract, and I would like you to refer to the sixth p 'ragraph. Mr. Bodwell. Yes, my Lord. The Court I want to have it cleared up as to when he got possession of the premises nn which this building was to be erected. Mr. Bodwell What part of the premises ? The Court. Had the contract commenced before the assignment to Mr, Adams ? Mr. Bodwell. Oh yes, it had been running a month. But the point I made on that was that we only got part of the premises. You see we could not get the printing oflfice. The Court That will be a matter then for another witness altogether, if you have one. ;i() l4' •.\-2 Mr. l^ntlvvell. Whon we got the original possession ? The Court. Yes ; what portion of the premises did you get possession of at this date which is mentioned in the sixth paraj^raph which is the first nf April- what portion of the premises did they get possession of on the first of April ? Mr. Hodwcil. I think I can clear that up. Q, What portion of the premises did you ha\ c possession of when you began your work under the assignment of the contract? A. All the new parts surrounding that old printing office. Q. All the new parts .surrounding that old printing office. A. Yes, Q. Then it was on the 17th of June, or about that day, iis 1 understand you, when !•* you asked possession of the printing part ? A. Yes. Q. And you could not get it? A. Could not get it. 0. How long had the work been going on then under you? A. Well, I forget the f xact date it was assigned over to me. Q. Did you begin work the day it was assigned to >ou ? A 1 think so, yes. Q. It was assigned to you on the 26th of April, I believe. A. 26th; well, we com- menced then right away. Q. Commenced right away ? A. Yes. The Court. O. How loiig was it then before you got possession of the printing office after you ap[)licd for it? A. I should think it would be about three week.s. I never did 20 have clear possession of it, he never was out of it ; I wanted to get some of the things out, clean them out so that I could tear dinvn the back [)art of it. Mr. Hodwell. I think I will put these progress certificates in, in\' Lord They arc produced from the other side and admitted to he correct. The first certificate Mr. Adams gets in is the 2nd of May ; the last certificate given to Mr. Grant was the i6th of April. 1 will put them all in. Documents marked exhibit H. Cross-examination by Mr. Mills. _ , Q. I believe, Mr. Adams, that you were surety for Mr. Grant the original con- tractor? A. I believe I was foolish enough to be. 30 ,Q. You wore foolish enough to do so. A. Yes, • ' ( . aa O, And you arc willing to admit that it was a very fonlish act? A. It \va.%. Q. It was. I believe that you had certain lumber that he a),'rectl to purchase from you, and in consideration of that you went his surety, did you not ? A Yes. Q. Yes ; you got thit lumber very cheap, did you not? A. Well, it was good lum- ber, first-cla.«. Q. Yes, I know you got it cheap? A. Well, the cheapness doesn't matter. Q. You did as a matter of fact ? A. First-class lumber. Q. What made you so anxious to take this contract out of the hands of Mr. Grant, and undertake the work yourself? A. I wasn't an.Kious at all. He broke his agreement with me. jy Q. He broke his agreement with you ? A. Yes , Mr. Duck knows that. He agreed with me when I went — The Court. This evidence is not directed to any question here. Mr. Mills. Under the assignment he assumes all responsibility of Mr. Grant. The Court. He is the contractor. Q. Well, he was going on- -the way he was going on with the work was not to your -atisfaction as surety. He was getting drunk, was he not? A. No, that was not it. Q. What was he doing ? A. He made a very big draw. O. He made a very big draw. A. And he promised before I went security that 1 was to handle all the money and takt "M the cheques, and we were to pay out the money, .>() and he was to stand there and see it paid out. V'o were to handle all the money ; and he didn't do it ; he got an c.\tra draw of two thousan .. Q, And you thought the best thing to do was to interfere ? A. I thought it was time to speak out, Q, Yes, For about a wci k or ten days before you got the assignment — A. It was a week after. Q What was he doing during that week ? A. The men worked that week, and when it came .Saturday night he didn't pay them anything for the work, and then Mr. Grant went on a drunk — O. That is the point. How long was he on a drunk for ? A. A few days. fto Q. He was about a week, wasn't he? A. We hunted him up and got him as soon as we could. Q, It took about a week as far as you remember? A No, three rr four days, Q, He was not on the job then for three or four days ? A. He was not on the job at all until some time afterward. Q. And you requested Mr. Duck to allow the assignment to you ? A I die! not ; Mr, Duck wanted me to go into it, bec.usc he was disgusted with Mr. Grant and did not want to have anything to do with him, Q. Did you read the document you signed ? A, I flid not ; foolishly I did not. Q. What, the original contract? A, No, I did not read it. Q. The original contract between Adams and Duck? A. No, 1 did not read it. If I had seen it I wouldn't have signed it, 10 Q. And yet you took the assignment of it without reading it? A. \'es, foolish enough. Q. Is that the way you did your business? A. I did it that way that once.; a very foolish thing to do, I admit that, Q, You remember the assignment? A. Yes. Q, That is your signature to it, is it not? A. Yes, I took it over, Q, You took it over ? A. Yes. Q. And the document is dated the 6th of April 1892. A. Yes. That is correct. Q. Did you read the assignment of the contract ? A. No, I did not ; I believe you got it up, -0 Q. And did not I read it to you and Mr, Duck ? A Forget whether you did. Q. And was not I very particular that th.at man, the contractor, should have it fully explained to him before he signed it? A. I ought to have had a lawyer there to look after it, Q. I did for you ; I was doing it for you ? A 1 know you made an assignment. Q, You m.ade the assignment, There was no litigation at that time ? A. No, I did not expect any ; I expected to build th:: building ; and I exp.-cted to get paid for it ; but i did not. Q, I observe in this assignmei.i it says this — the first recital s.ays : (Reading same), And then Mr. Duck has consented to it. Am I to understand you have not read the, 'id contract until this day ? A No, 1 have not. Q. Never read it. A. I don't think so; never read it Q. Then how did you do your work under it? A. The specifications, Q You didn't pay any heed toil? A, I think i stated before tliat the foreman attended to that. Q. Then in doing this work you were not guided by the contract? A. U hy not? I was governed by the specifications. Q. Rut you never read it ; you did not know what was in the contract? A I (hiin't know whit was in the contract. Q. You had a copy of it ? A. I am not sure. Q. You must have had one ? A. Did you furnish me with one ? 1*' Q. I did not prepare the contract ? A. I am not sure whether i had or not. Q. Yes, you had a contract. You don't doubt that, do you ? A. I wouldn't swear to it. Q. You wouldn't swear to it ? A. No. Q. Have you got a copy in your possession now ? The Court. The contract is admitted, Mr. Mills, and where is the necessity of going into that at all ? Mr. Mills. I understand that my Lord. A. I have not. Mr. Hod well has. Q. Well, Mr. Hodwell represents you. Vou were speaking just now about those. )(| items for extras and additions ? A. Yes. Q. When were they made? A They were made when the work was going on. Q. 1 know ; that took four or five months ; just give me an idea. A. 1 cannot give you the dates. Q. Give us the first item? A. My foreman can give you the dates ; I cannot give you no dates , I was not on the work. Q. Did you keep any account of them ? A. No, I did not, myself. Q. How did you make these extras up ? A. Hy the foreman handing them in to me. Q. By the foreman handing them into you ? A. Yes. ^1 !S I? 4 W Q. When did he do th:it ? A. So many bricks and so much lumber and so much labor — and mortar. O. Gi%'c me the date when he did that ? A. They will give you the date ; I cannot. Q. Cannot you give me the dates? A. No ; I cannot carry the dates in my head ; they gave me the date. O. VVcis it shortly after you entered into the work? A. Shortly after. O. Or was it toward t le end ? A. As it was going along. Q. As it was going al- ng ? A. Yes. O. Can you give ''.e the dates ? In what months? I don't want to ask the par- ticular day. A. W .ll, they spread over from the beginning to the end. 1(( O. They spread over from the beginning to the end ? A. Yes. The beam-filling, for instance, one of the last things done in the building. O. You arc willing to admit that it was from the beginning to the end that you were doing what you now claim was cxtia work ? A. Yes; not — from the time the building was up. Q. Tell me what you mean ? A. I mean that the division wall between the Knights of Pythias hall and the other main building there, about 40 or 50 feet high, was most of it standing up and it settled, it had to be taken down and trussed, you see ; that had to be taken down and done over again. O 1 want to get the date? A. I cannot give you the date. -^' Q. What month was that in ? A. The other witnesses will come on and gi\e you that. n Q. What month was it? A. I didn't do the work myself and wasn't on it ; my fore- man done it, nnti I have not those dates to my hand. O. Can >'ou tell me the month? A. Well, I cannot ; I think it was June. Q. You think it was June? A. I think ; I would not swear positively, but I think it was in June. O. You think it was in June ? A. I think it must have been June, as early as June, if not before, it might ha\o been anywhere, that part of it, that trus,«ing. Q. You got $6,000 on the 6th of April ? A. Yes, sir, and it was an extraordinar.v .'50 draw ; your architect ought not to have gi\en it. Q. Never mind about the architect. On May the ^nd I find that you got $2,000 yourself? A. Yes, sir ; wc dont dispute that. Hut there is a balance due there you have not paid. 87 Q. And on June the nth, $3,000? A. I will not swear to that until 1 seethe document. Q. There it is. A. If it says so, all right. Q. J ust look at that and see. Mr. Bodwell : There is a dispute about that. The Court : This is simply a waste of time. Mr. Mills. No, my Lord, I submit it is not. The Court. All these dates are admitted ; if you wish to dispute any of the dates or show any more money is received, you are perfectly at liberty to do that ; otherwise it is a waste of time. 1*> Mr. Mills No, my Lord, I will show you it is not. Q. On June the 30th you got $3,000 and in July you got $1,500, and then some time later on you got the $1,580 Mr. Helyea had, on your certificate. Now I want you to look at these certificates ; and do you say that in any one of these certificates there is any allowance for extra work? Just look at these with your name. A, It is not customary to do that • Q. That is what you say ? A, Yes. O. You are not allowed anything for extra work in any one of these provisional cer- tificates? A. I don't suppose you can dictate to me what I shall do; I am a contractor ot standing for years. * * 20 Q. Just look at it ? A. I don't want to look at it. I don't suppose the extras are in ihere ; they come in at the last ; subsequently. Q. That is what you say? A. It is always that way. . O Mr. IJelyea was your solicitor ? A. Yes, for a time. Q. And you observe that on this sixth certificate you are allowed $30 for extras? A. Let me see that. m day? Q. Look at it. (Handed to witness). A. October the 19th. Was it paid on that Q. Did not Mr. Belyea state he gave him the check and he had it for about a fort- night or week before? A. I guess you did. This was quite a good while before the -'O money came ; we didn't get the money on that day. '"wipii ■I .'58 Q. Look at that. I don't say you did, $30 extra work. A, You have not got my bill for it ; you put that down ; I did not put it down, O. Look here ; that is a certificate of the architect, is it not? A. Yes, sir, Q. And this certificate says extra work $30? A, Yes, sir. O, Whereas on these there is no extra work allowed? A, He says $30, and we say $400. If you want to give us $30 on $400 we don't care. That is December the 15th, 1892, and this calls for the 19th of October; paid December the 15th, 1892. Q. You had it on the 19th of October ; Mr. Whiteway gave it to you on the '19th of October. A, I never saw it ; you held it in your possession all the time ; he never gave 1^ me that certificate in the world, Q, Would you be surprised to hear, Mr, Adams, that he would not pay the money until you handed me the certificate, and that Mr. Hclyca kept it for a long time ? A, All the certificates I had were handed to Mr. Duck. And he refused to pay it, Q, You would be surprised to find that a letter was given to the solicitor to pay it whenever he got the certificate? A. Not at the time it was called for, there is a difference between the 19th of October and the 22nd of December ; quite a time between there, Q. On the 19th of October you stated ? A. That is the time he says, the certificate — Q. That is the time that Mr. Whiteway gave you this certificate? A. It appears so. Q. Or about that time, and he also gave you the statement of account, did he not? -*' A. They were all certificates though. Q. That is what you say. That is a matter for the judge ? A. That is what we claim. Q. When did you give Mr Duck possession of the building? A. He has had it from the beginning. Q. When did you give Mr. Duck possession of the building ? A. He hns never iieen out of possession of it. For instance, Mr. Miller never was out of the building. And on the 28th — Q. When did you give Mr. Duck possession? A. He had possession of it a long time when the subcontractors were there ; he was theie every day ; he never was out of;;,) possession of it ; he was there all the time. Q. You call that possession. When did you give him the keys? A. I cannot give you the date. Do you know that ? M i [J I I! h n\ O. I am not in the witness box. A I hantlcd them in your office, ant! you know the date. I wouhhi't have handed them then — Q. When was it ? On the 25th of October? A. I hadn't ou^ht to give them to you at all, until it was paid for. Q. I sec. Did you hand the keys over on the 15th of October? A. I wouldn't say. O. If I told you in your affidavit you swore the building was completed on the 25th, you won't deny it ? A I don't deny it ; I couldn't say the day I left the keys ; I left them at your office ; you know the date ; I didn't mark it down. We don't dispute hand- ing them over in October I think it was ; but to give you the date, I could not. It is folly tn .stand on that thing. I don't deny handing the keys over to you, but I couldn't tell 1*' you wh.at d.ite it was ; it was in October some time. Q. Now, did you ever make any application or notice in writing, or claim in writing for these extras? A. I did not myself. Q. You did not yourself ? A. No. Q. Not at any time ? A. No; I was not the foreman. O. You left that entirely to your foreman ? A. Yes ; h( was there all the tiinc. Q. He was there all the time ? A. Yes, Q, This is what you swore in your affidavit of the i6th of February, 1893 ; (Read- ing) That the said building has been fully completed bj- me in accordance with the said contract, and the same was handed over to the defendant and accepted by him onorabout '_'<' the 25th of October last ? A. Not later. Q. I mean that is what you swore to? A. That is right, Q, What were you doing with the building between the time that Mr. Whiteway handed you that statement of account? A. Ask the sub-contractors. Q. I am just asking you what you were doing with the building ? A. 1 was not working at it at all. O. You were not working at it at all ? A. No. . . Q. Am I to understand from you that you did not assume any responsibility in regard to the sub-contractors ? A. I did not on that occasion. Q. You did not on that occasion ? A. Because your architect gave them certificates 'iO that their work was completed. ', Q. That is what you say ? A. Yes. 40 Q. Would you mind producing those ccrtific.itcs ? A. They have got them. Q. You cannot produce tiicm ? A. I ivi.igs, had you not ? A. No. Q, How did you do that wor'< the i ? A That is a portion I don't know anything .iliout that. I never saw any drawing •, Q. You never saw any drawings. How often were you on the work? A. Every morning about ten o'clock I came up there usually. Q. How long did you remain ? A About half an hour or an hour, and then went .iway again. ;iO Q. Did you ever give a guarantee for this elevator ? A. No 42 Q. You did not ? A.I don't think so. Q. Now, did you ever give Mr. Duck a guarantee for tlic tin roof for two years? A. Oh, that i.s your work ; that wa.s done before 1 came in. Q. What do you mean ? A, He knows that I t ilkcd a gooii deal about that, Q. Have you given it? A. You got Mr. Grant into it, ami you held me to it ; you gave the subcontractor a certificate, and make me pay to guarantee his work, Q. Oh no — You know you came into court ; the judge made you pay him A. Vou drew the document. Q. Have you given the architect a certificate of guarantee for two years for the tin work? A. I have not. ]0 Q. Do the specifications call for that? A. It calls for that. And Mr. Duck said he didn't think it was legal ; it couldn't stand ; and tallied a good deal about it. He says, •' How is he going to guarantee me that that roof will stay two years ? " And he told me distinctly that he didn't think it would stand law, and I would be all right if I paid him. And it was paid too. Mr. Bodwell. Q. Who said that? A. Mr. Duck said it to mc, I was finding fault ;it him making me guarantee other men's work when I ought to have done it. (To Mr. Mills) You made me do that. Q. Were j'ou aware that j'ou could not claim for any extra or additional work unless you gave notice of your claim in •^en days after the beginning of that work ? A. I was •2{) not aware of that. Q. You were not aware of that? A. No. No fair man would ask it, neither. The)' would not have something done extra without paying for it. Q. Never mind. Did the architect give you any order in writing for anj' extra or additional work ? The Court. That is admitted in the amended pleadings. In no case did the archi- tect or defendant give an order in writing. Mr. Mills. Yes, I see ; that your Lordship for pointing that out. Q. Did you givt Mr. Duck any evidence in accordance with section I2 of the Mech.anics Lien Act? A. What do you mean by that? ;}() Q. Dill you give him any evidence under the contract that the building was free from mechanics liens ? A. He knew it. The i-'ourt. That is no excuse for nonpayment ; it is only an excuse for non-pay- ment //i' /(infi) in case there are any liens. He cannot hold back several thousand dollars -/ ■ 4a because there is a hundred dollars mechanics liens on the building. There is no excuse for non-payment except the amount of the lien. It is not a condition precedent. Q. You were being examined this morning about your extras — what you claim as extras. Did you at any previous time furnish any particulars of these extras to the architect? A. I told you I did not ; I don't know whether the foreman did or not ; I had nothing to do with that, Q. You don't know whether the foreman did or not? A. No. Q. Whn-ic writing ii that (handed to witness) ? A. That is mine. Q. Didn't you give those to Mr. Whiteway ? A. I expect I did. Q. You expect you did ? A. Yes ; probably a copy of it. Q, Well, that is the copy — this is the copy that came from Mr. Whiteway. Did \-ou give iiiin that, do you know ? A. I expect I did. 1 wouldn't say whether I gave it to him or not, I wouldn't be sure about that ; I made that out though. (J. You made that out? A. Yes, O. He refused to recognize that, did he not? A. Not plainly to me. Q. Not plainly to you ? A. No. Q. Didn't you see in that document that he gave yo;i on the lytli of October he only allowed you ^30? A. Oh yes, 1 suppose so. Q. Yes. The Court : Are you going to put that document in, Mr. Mills? Mr. Mills : I want to ex.imine on it. 1 will put it in, my Lord. Q. Do you remember the date when you gave that to the architect ? A. I do not. Q. Was it "pefore he gave )'ou ':Hat 'Statement of account on the 19th of October? A. \ couldn't tell you that. Q. Couldn't you tell 1* A. No; I don t kr ow whether he had it before: 1 wouldn't swear that he had it before. 1 ilon't think ho did have it. O. W'ho did ycu do the work for in the Knights of Pythi.is hall ? A. L'tiderthe contract. 10 L>(» ''M ■'id m Q For whom ? Wlio iliii xini tlo it for ? Hn whose account? A. There \'. as two contracts there. Qi) 44 Q. Who did you do the work for in the Knights of Pythias hall ? A. I did it for Mr. Duck. Q. The whole of it ? A. No, sir. Q. How much? A. There wa.s a divi.sion across the hall, a lot of little rooms, amounting to $240 which the Knights of Pythias agreed to pay for, and which they did. This is outside of the contract. O. Do you know that you charged Mr. Duck with that $240? A. No, sir ; I did nothing of the kind. Q. You did nothing of the kind ? A I don't think so. Q. Why did you put it in ycjur account against Mr. Duck as an extra? (Paper 10 handed witness.) A Well, that wns before it was paid. Q. That does not matter if you did it on the account of the Knights of I'ythias. The Court: It is not claimed there, Mr. Mills. . • Mr. Mills: 1 am just showing you what a muddle this man got into. A. No muddle about it; Mr. Whitcway went down to the Knights of Pythias and got the cheque and handed it to mc at the same time he did the other. Mr. Duck is not charged with it O. You charged Mr. Duck with it on your account. A. Well, wc hadn't been paid for it. I didn't take the bargain from the Knights of Pythias to do that work. I knew there was a charge there and I didn't know who to make it out to. It it is easy enough -0 to straighten out that much Q. Did that delay you ? The work in the Knights of Pythias hall ? A. Oh no. Q. That did not dela\- you ? A. No. Only hac my men there a short time. Q. Now, with regard to that item that 1 madn a nemark to Mr. Hodwell about this morning — ^labor and material on arch in store. piaaHirriin r, same. $35 , I ob.serve that. A. Yes. Q. Then 1 find runway mto old buildin;,, : . ) A Q. Is that item of $}]i in connedfen wiliivihr«Bai in Mr. Corbett's evidence. i< ' A. You will find that Q. I am just going to ask you. A. i don't kmnw about that ; I know it is an extra ; :]{) he gave \"ou the particulars of it in his evidence. y. Docs that refer t3 the runway in the printing office? A, 1 think so ; what does it say ? Let us see what >'ou mean by it. ■■I III 1':* t m Mr. Bodwcll: No, it docs not mean that at all. Q. Now, you told mc that the runway into the old building and the item for $33 referred to the same piece of work. A. The runway ? Q. Yes. A. There arc tlirce arches in that building extra, and you get them con- founded. There are two up.stairs and one down. Q. Does it refer to the one piece of work ? A. I don't know how you have got it mixed up ; but there are two arches up stairs and one down, and the runway besides. Q. Labor and material on arch in store, plastering same. A. In the store; that is down stairs ; first story. Q. In store. %ii. A. Yes. The Court: What is the meaning of that term runway? A. They were to get steps down to make a stair ; instcid of that the joists were cut out in the floor and headers, trimmers, put in, and a runway made without step.s. The Court : A slope ? A. Yes ; cut away in the floor. Q. Was thcit arch made necessary on account of the runwax' ? A. I don't know whether it was ; I think it was something like that. Q. You think it was. A. There w(» hear your explanation — Rep.iiring old roof, you ha\c got this account $14. A. Ves, sir. Q. Whereas in the account you first delivered it is 90 cents. Mr. liodwell : That is all explained in Mr. Corbett's evidence. The witness. 90 cents would not do it. O- Repairs to old roof, 90 cents, your hand writing. A. It doesn't cover it at all. Q. Just look at it (handed to witness). A. Yes; it is a mistake. Kverythiiig that is done there is under ])rice. There should be i 5 per cent, to all tho.se things for profit. I paid the cash for it, and it is put in. Q. Stiffening piers, brick work, additional cnrpcntcr work $16; wiiercis in this account I think you have charged $42. A We didn't get the account right. ."id Q. How did you make that recount up? A. Well, I will tell ycu ; the foreman brings mc a book and gives me off certain items so and so, and 1 take them down, he goes away again and finds a difference. Now tho.se men that done that work can give \ou the correct thing. You will find from them ; they have given their evidence; the>' will tell IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ■-IM • 5 ^ m It i^ IM [2.2 IIIM 11.8 1-25 1.4 1.6 ^ 6" ^ ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 V iV arches, $20.20. $17 was charged in the other account. A. There should be 15 per cent, added. Q. How was it you made such a blunder? A. I ju.st told you. A man brings his book and says so and so and he misses .some of it, I take it down and don't get it right. But when they come they can tell you what 't was. 1** O. And coal bins. If I was to examine you as to what was done on these items, could you tell mc? A. No; you have got to depend on the foreman. Q. 1 have got to depend on the foreman ? Then I won't take up the time of the court on you then. Mr. Mills ; I will put that in, my Lord. I will examine on that later on. Document marked exhibit J. - Mr. Bodwell : I think my friend can cro.ss-examine on that, but I do not think he can put it in evidence. It never was acted on, it never was accepted ; it is simply an account rendered The Court : I think he is at liberty, if he .sees a difTerence in the figures, to ascertain 'J'* how the difference arises. Q. Did you present the owner with a receipted pay roll ? A. Did I ? Q. Yes. A. They .stuck it up there according to law. - " Q. Did you present it to Mr. Duck ? A. I did not. He know.s very well they were paid every Saturday. ^- • Q. Just answer the question. A. He knows it very well ; he saw them paid ; every Saturday. ; . ' ■ > '^ The Court. Q. He saw them paid ? A. Yes ; he \\as around there every da)' ; and they were called in Saturda)' evening and paid off evjry dollar that was due, c\ery Saturday. ,, ;i() Q. Did you make any deduction on account of water? A. Did I ? Q. Yes. A. 1 don't know that I did. 85S ^B 48 Q. Do you know that Mr. Duck paid for it ? A. He has probably paid for water that was used in the printing office. Q. I am speaking about you. You did not pay for the water? A. I don't suppose I had to pay for more than half of it ; the printing office was ising water r^li the time. Q. You did not pay for it ? A. I don't know that I did. I don't think there was a bill presented. Q. Yes, there was. You werewilling to pay it in your affidavit. Are you willing to pay it now ? A. I paid all the bills on Mr. Duck's buildings that was ever presented. Q. You have not paid thi.s. A. I don't know as it was. Q. We charge you $22.65 ^ your proportion. A. How much did Mr. Miller's jy printing office use of that water ? Q. That is your proport'on. We will show you the receipt presently. Q. Why didn't you claim for more time in accordance with the coitract? A. Why didn't I. Q. After the first of August? A. I didn't think that wou'd make any difference ; as a contractor I have never been in the habit of doing it. M Q. You didn't think it would make any difference ? A. Not with honest men it does not. Q. Did Mr. Whiteway notify you that he would hold you liable for the demurrage? A. I don't think he did. •_>() Q. Will you swear that you did not get two or three letters from him ? A. I got two letters, they are dated last year ; I don't think it was in August. Q. I will show you copies of the letters. (To Mr. Bodwell). Will you produce the originals ? Mr. Bodwell. No, we have not got any of these originals ; and I submit they are not evidence in any event. The Court. He will have to prove them. Q. Do you remember receiving this letter on the first of August 1892, D. F. Adams, Esq. — The Court. Have you given them notice to produce this letter? :\U Mr. Mills. I have given them notice, 1 think. (Reading letter, signed W. G, White- way, Architect. ) I want to know whether he received the original of this letter ? Q. You got that letter, did you ? A. Yes, sir. Q. You did ? A. Yes. That was the time that he stopped the men from laying the floor on the Knights of Pythias' hall ; kept them off there for a week. Q. No, on August the 25th. (Reading letter to Adams from Whiteway). That was registered to you. You got that ? A. Yes. Q. You don't deny it ? A. I deny the truth of it, though. Mr. Mills. They are in evidence — in Mr. Whiteway's evidence. I offer them in evidence , Mr. Bodwell. I do not think they can be received in evidence. The authorities show very clearly that an architect has no jurisdiction whatever to certify as to demurrage, I" or make any other — The Court. That is another point altogether. He cannot certify as to demurrage, but he can draw the contractor's attention to the terms of the agreement. It does not make him responsible ; it does not alter the responsibility from the terms of the contract. Q. Then you admit you received those letters, don't you ? A. O yes. And there was a cause for it, too ? Q. What? A. There was a cause for it. ' Q. What ? A. He and I had a few words. Mr. Mills. I will put those two letters in evidence. (Marked K (?). Q. When did you present the account of extras to Mr. Whiteway? Do you know :>() the date ? A. Well, I couldn't tell you the date. O. What? A. I couldn't tell you the date. Q. Was it before he gave you the statement of account on the 19th of April ? A. No, I wouldn't be sure about that. Q. It was after that, or before? A. No, it was before. Q. It was before? A. Yes, it was before it. Q. Then notwithstanding that statement of what you gave to him of what you claim extras — ? A. Yes. Q- -he refused to allow that ? A. Yes. Q. Did not he consider that many of these things you did there were really to ;',() strengthen your own work ? A. No, I know it was not. so Q. And necessary and within the true mcaninj^ of the phuis and specifications didn't he tell you so ? A. No. It affects it clearly in his plan. Q. Now, with regard to the arch between the new building and the old building ; that is included in the specifications ? A Is it ? Q. Yes ? A On what page ? Q. What was the cause of that giving way ? Alt did not give way. Q. What did you have to do? Did you have — ? A. I come along and I saw this girder stuck in that arch and the mimcnt you put any weight on it it would come right down through it, nothing to hold it. 1 was astonished to see it tiiere. Q. Would you mind showing his Lordship by a sketch what you mean ? A. I will •" if you give me a piece of paper. Mr. Bodvvell. What are you talking about ? The witness. A. I am going to draw a plan of that arch. The Court. It would be better if you would show the plan on the plans itself. The witness. This is the old building this is. The Court. The plans do not refer to any old building at all ? A. Yes. Mr Mills. They referred to it in the specifications, my Lord. The Court. Yes, it is referred to in the specifications. The witness. (Drawing a sketch). Yes; that girder went in on the top of that arch. ■'*' Q. Now, we claim $100 for defective and unworkable A. It was all right as far as I know. I 'm 58 Q. When did you last test it ? A. I went up one day on it. Q. When? A. About the time the building was finished. The Court : Is it --n elevator or a hoist ? A. It is a hoist really The Court : Has a fly wheel ? A. Vcs, and weights. Q. Could it lift two tons ? A. Xo ; if it is not right it is Mr. W'hiteway's fault ; he • is the man to blame for it. Q. Mr. Duck paid carpenter for work on nsh-chute $2.50. A. Ye.s. What did he do? Q. It was for the purpose of making the chute tight for the purpose of keeping the ashes from coming out in the stories below. A. It is not necessary ; I saw it. 10, O. You don't think it was necessary ? A. No. Q. If it was necessary, do you think $2.50 an improper charge ? A. Outrageous Q. laid for labor on ash-chute $2.50. A. Outrageous ; it was not required ; the ash chute was properly fixed all right. The Court : Mr. Mills, with regard to these items, I think I shall rule that the . ' architect's — Mr. Whiteway's memorandum of detail of the 19th shows what the un- finished work was. You cannot go behind your own architect. It is headed. Work un- finished on Mr. Duck's Building on Broad Street, $7y, with a variety of items there. He is your own agent. Mr. Mills: I can undcrstaid your Lordship — that >our I.' iiiship could rule in that 20 way. But tlicrc is section i.| of the agreement that i must call yciur Lordship's attention to ; I raise it under that section it is section (4. The Court : (Reading section i Thej' iia\e gf>t a final certificate. Mr. Mills : I su!)mit it is not a final certificate. The Court : I shall rule it is a final cetvificatc. There is no particular form for a final certificate. It shows the equitable account between the parties at that time ; it shows the unfinished work. I do not see why this is not a find certificate Mr. Mills : I ask >'our Lonlship not to gi\c an absolute decision on that at present. The Court : No; that is my present \iew. , • Mr. Mills: I think on furtlier consideration your Lordsiiip will be inclined to change 3^ your (i[)inion on that matter. It might he weU to go into the-!c items sul^jcct to the con elusion your Lordship shall come to on the document I ,./^^ 64 The Court : I have come to the conclusion on the document to this extent, I hold that that certificate as to work unfinished is conclusive against you. Mr. Mills: On that point ? The Court : Yes, on that point. Mr. Mills : That would prevent you going into these other points? The Court: Yes, practically as to items there except the mantelpiece $ioo which is admitted. Q. You had water to use on that work, did you not ? A. Yes, Q. Where did you get the water from ? The City ? A. Yes. Q. In an affidavit that you made, sworn on the 23rd of February you said that theltJ defendant is entitled to a credit of $100 for the mantel in question, and then you go on to say that j'ou left a deposit of $20 in the city treasury with respect to the street, which you will pay for the use of Broad street. A. That $20 is there now. The Court : That might be used for the water. The witness : It ought to. The Court : Possibly it was ne\er deposited by you to pay it. • s Mr. Mills: It was only deposited for the use of the .street. . , C Now, you don't claim that Mr. Grant didn't ha\ c the building by the first of April, do you ? A. He didn t have it by the first of April ? Q. Yes. A. I don't know. 0() Q. You have made no claim for that. A. What do you mean by that? ^ Q. That he had the building by the first of /\pril, in accordance with the contract. A. I think he was running it ;>t that time. Q. You think he was running it at that time? A. I don't know about that ; I can t tell you the date. The documents ought to show when that came over to me. Yes. Q. The document speaks for itself there. Are you claiming, Mr. Adams, now ? A Q. What for? A. Non-fulfillment of the contract Q. Non fulfillment of the contract. A. Yes. Q. Have you pi. i any claim for damage? ;}(i 00 Mr. Helmckeii : Yes, sir. Mr. Mills: Where is it ? There is no amendment for the plaintiff claiming any damage Mr. Hodwell : The position as it appears to us is this : Under our contract we covenant to complete within a set time, and if we do not complete to pay damages. Then \(e say, on the other hand, there is an implied covenant on your part that you will not prevent our compliance with our '-ontract. And then if we prove you have, we can off-set it by claiming damages against you (Mentioning St. John's College case, Robinson Bur- rough Commissioner, 5 Com. I'leas Law Reps. p. 325.) Mr. Mills: I hnve a number of cases ; hut I shall rely o!i that case of St. John's 1(> College. Mr. Bodwell : The whole nf the matter is discussed fully in Hudson on Building Contracts, from pages 216 to 233. Q. Well, I think, Mr. Adams, you were delayed in getting a good deal of your material in hand A. No, sir. O. Mr. Martin says so, and Mr. Wellman. A. They don't tell the truth O. You s-'y they doit tell the truth ? A. Yes, O, Where did >'ou get the material from? A, The finishing stuff c.-ime from Muir- head & Mann's. O, As a matter of fact, didn't those men ha\e to gn down and get what was delayed ? -jQ A, It w^s their business to go and get whnt thej- wanted, Q, You left it all to the foreman ? A, After they were there there wrs no foreman. On the date they went there there was no foreman. O, Who attended to the job ? A. It laid betwec:i them , iid the rrchitect and Mr. Duck. And between these parties and Mr, Duck they run the work to suit themselves, Q. From what date? A. From the fourth day of July. Q, From the 4th day of July. Did you go up there ? A, I would come up there and see them sitting around, and I said, " Why don't you finish up this building? " and they would say, " Oh, we haven't got any stuff;" they were wasting their time purpo.sely. Q. You did not consider it your dut)' to go and get the stuff? A. It was not ; they ;^() knew where to go to get it. Kvcrything came up there and it was hauled up and back again ; I remember stuff for thit finishing was hauled up there and they didn't want it there and we had to haul it back again And if they had to have a piece of moulding ■l } 58 (liey would wa'it an extra waijgo i to get it, instead of goin^' around tlic building and sec- i 'g \vh t they wanted they would order one thing at ^ time. , Q. Wliose fault was that ? A The sub co itractors'. We will prove to you that the stuff was all there as fast as they wanted it. O. 1 suppose )'ou rrc auare that Mr Duck did not in he the co:tr ct with the sub- CO itractors, but with you? A Ves, but tlic\' w^tc working for hiin pr cticall_\' ; the\' got ]iay from me. Q. Wellman a:id Martin who had the finishing contr'^ct h"d to tear nway a good deal of the ground work bee 'usc it w.as put in so badl)- ? A. They didn't have to tear up so much. It doesn't matter how much they had to lu tear up, they agreed with me to finish th.it building, and I remember that we talked and intended that they should finish e\er\thing from that day ; and it don"t matter what was to be done, it was my intention th "t they should do it in accordance with the architect Q. Have you looked at the building ? A. Ves. Q. You know that flooring is not le\el ? A. It is as good a job as anywhere in the country. Q. Isn't it on account — ? A. It is on the trussing business, the defects in your plan. Q. About that flooring-- ? A, Defects in your plan, O. Wait a moment ; did you apply in writing for any better plans, to the architect? A I did not apply to him. 20- O. "Vou did not apply to him ? A. He was there every day ; why didn't he see to it? O. As a m tter of fact you thought your judgment was far superior to the architect ? A. So it was. Q, And upon that you acted ? A. No, I did not direct anything. Q. And upon that you acted? A. No, I did not. Q. Your opinion and the architect's came in contact very often ? A. No Q. I heard you say that in the chamber court ? A. You could hear me say some- thing very different if you want mc to tell you an instance. Q. Now, with regard to the tlooring ; that had to be ripped up a good deal, had it JJO not ? A. What flooring ? .il, O, Up in one of the stories it was not put down evenly ? A. No. O. There was a delay there ? A, There was a delay there. O. Do you mein to say that the doors were put in properly ? You know they were not properly put in. A. Those nen did not put them in pro{)erly. Q. The sub-contractors ? A. Yes. O. Do you say the brick work is in plumb? A It is plumb. Q. Did you ever examine it? A. I did. Q. So have I. A. I tried the level on it — spirit level O. And they put the casinfj in, and that was not plumb? A. The spreaders f^ot knocked oi:t in taking this old building out, and the jaml s gave iu ; rnd instead of them K) taking it out and putting it up as it should be, they put it up as it was — a most disgraceful job ; and your man done it. O. It wns the sub-contractors' work ? A- Yes, it was. Q. You took all the responsibility of the sub-contractors ? A. Yes of course they agreed to do it — Mr. Bodwell. This matter is all allowed for in the unfinished work. Mr. Mills. I am talking on the question of delay. O. There was a delay caused there, was there not ? A. Yes, and you did not rem- edy it a bit. ' . O. How long was that there? A. I don't know ; I wasn't there to take the number 20 of days ; very near a week. Mr. Bodwell. Mr. Mills is a.sking about one thing and the witness is asking about another. I would like to have my friend, to save m.e some trouble and be fair to the court, to e.Kplain to the witness what he is asking about. Q. Give me your e.xplanation about that flooring ? A. I came up one morning and these sub-contractors told me that they had been stopped from laying the floor up in the Knights of Pythias' hall ; I looked up there, and the men had gone away. Q. And what was the trouble ? A. There w.^s a little settlement there; the floor was a irregular ; that was the fault of the girders ; the girders were not fit to carry the joists, and also in the walls it was settled. They went to wori\ and straightened it up. jiO These men wanted me to straighten it up, and I told them I couldn't do that, it was impossible for me to straighten it up, it would have to go as it was. And they made some :» little wedges and pu^ underneath the joists ; I told them that I would not do it. And they went ahead and laid the Hoor afterwards, when they saw 1 would not do it. And there w.is a.^ much as a week lost there. Q. Vou thoutjht it best to leave it entirely to them ? A. I couldn't strai}j;hten it up. because these subcontractors had the job to fi .ish that work complete, from the first d 'y of July. Q. i'hesc subcontractors had the contract under you ? A. Yes; they were worl-iiif,' for Mr. Duck and made bad vvor'^" of it. The Court Vou are responsible for it. 'I'he witness. They should not l)c allov^cd to 0\c c\idence aj^ainst their own worV. 10 O. You say that Mr. Miller delayed you? A. Yes. O. Do you know that in the siiccifications there is a .statement I believe there that you arc not — in any e\ent, you assumed that responsibility ? Mr Hodwell. The document \\ill speak for itself; it is not a matter for the witness fo give evidence on at all, but a matter rf construction of the document. torj'. The Court. The specifications and the contract on that point seem to be contradic- Q. Now I want to understand from you what was the delay on the part of Mr. Miller? A. He would not move his stuff from the end of the building so that we could pull it down. -(' Q. Did you ever complain to the architect about th-'t ? A Yes, certainly. O. In writing? A. No, not in writing. 1 will tell you who did — who was manag- ing it. When I came up in the morning, the foreman comes to me and says : — Here we cannot get along without pulling that building down. I goes to Mr. Miller and Mr. Mil- ler objects to having anything moved, that I couldn't have anything done until Sunday. You see — , ' ' Q. Yes? A. And it run .so long there from time to time ; he would neither move for me or the foreman ; and it run along for quite a while. ■ - Q. How long? A. Might be three weeks. Q. Now, during the time you say you were delayed, that is the three weeks, by Mr. ;i() Miller's conduct, didn't your men go along with other parts of the work ? A, We had to put off men. - ■ , - , Q. Who did you put off? A. The pay sheet will show you liow many men were put off. On the 27th of June — I! ! i P i ftfl O. On the 27th of June ? A. The pay sheet will show you exactly , I couldn't tell You tal^' straif 61 Q, Did Mr. Duck ask for a guarantee ? A. No, he did not, Q. Now, a letter from Mr. Mills had been put in, dated the 2ist of October, saying, 1 am instructed, etc. (reading letter). Do you know what section 13 of the contract is? A. I don't recollect, Q, It is the section referring to the final certificate of the architect. Now this letter is dated the 2 1st of October. Was Mr. Whiteway in the country at that time? A. No ; He went away as soon as Mr. Coolcy got his money for the roof. Hj went away that very night that I paid the money over, O. So they got Mr. Whiteway out of the country and then say they won't pay with- out Mr, Whiteway's certificate. 10 Objected to. A, I paid the cheque ia the forc.ioon, and .Mr. Whiteway went away that very night. , O. August 25, i8g2, this is a letter to you from Mr. Whiteway. (Reading letter ) Was it a fpct that you had not procured sufficient material oti the work to prosecute the work at that time? A. Plenty of material, all it had to be was asked for. I hauled •'way two thousand feet of flooring that was rejected that was as fine a flooring as ever went into a building in this city. O. Here is a question 1 want to ask you. The defect in the flooring ; the settlement of the floor which caused the delay when Mr. Whiteway laid off the men. A. Yes. -'* O. Now tell me what it was that cau.scd that settlement in the flooring. A. Well, that girder business -and then them trusses in the wall were not good ; O. It was not right? A. where they stand over the stairs, you see. Q. Then the defect in the flooring was a defect in the plan, was it ? A. Yes. Q. Not a defect in the work? A. The floor under the partition, the floor joists, instead of its being properly trussed and fixed up the same as you would bridge work in there, they just simply doubled the floor joists ; and it was not sufficient to carry the heavy walls in the Knights of Pythiais hall, Q. Could it be straightened up at that time by anybody ? A- No, not very well, Q. As a matter of fact Mr. V\'hiteway laid off your men because you did not straighten up a thing which could not be straightened? A. Yes, that is it exactly. Q, And the defect of which was caused by his insufficient plans? A, Yes, sir. 'M) Q. And you lost a week's time on accoun" of that? A, Yes, sir, Q Now then, after you got to work on the building, after you got tlie demand from Mr. Grant, was there between that time and the first of August, if you had had no obstacles such as you have mentioned, sufficient time to have finished the building ? A. If the road had been cleared we could have finished the building easily. Q. \Vhat do you mean by if the road hnd been cleared ? A. The printing office, when we got ready to hoist him up he would not have it, he had so much work on hand, and he must wait until Sunday, and it must go then until the next Sunday. Q Could you have finished the work if it was not for that ? A. Yes, we could have finished it then ; we could hav'e had room for our men. Hut it wps delayed ; everything 10 waited for him to get up. The Court : That is plain. Q. What did you do with this printing office ? Did you build a second story over? A. it was ,"n old building two story, and we built — the back part where the Knights of Pythias hall is very high — let me see, the Knights of Pythias hall is 25 feet ; and then there is Q. What did you do with the old building ? A We built over it. And we then had to ta';e it out and build a division wall. iMr. Hodwell : They built around it, and then when they had built around it they tore out the old building. 20 Q. Is this the elevation (indicating)? A. Yes; there is the place. There is that arch we were talking about (indicating.) Q. Show the judge how you built on the printing office. A. This is the wall that settled, that one right there (indicating). The Court : That is the elevation, A. The printing office is inside of that building there (indicating.) The Court. Q. Mr. Adams, can you tell me whether the printing office opened on Johnson street before you undertook the job? A. Yes, they went in off of Johnson .street By the Court. Q. Very well; where did you go on that plan? A, They came in through the old 30 building. Q. Is this the elevation on Johnson street? A. No, that is on Broad. 'km m m,\ .-F ■■ m Q. Give me the elevation on Johnson street? A. < don't think they give an eleva- tion on that; that ground plan will explain it. There is nn alley behind. This is the old building, as I take it. Q. This is the old printing office ? A. This is the old printing office ; it extended back into the new building about so far This is divided into three stores. Now this dividing wall came through there (indicating). Q. This marked red shows the building that you put up, You had nothing to do with that? A. This plan is misleading ; this printing office here is an old wooden build- ing behind it, that we built over, there. Q. I .see, you had to build a projection in from that. Is that projection to come 10 across h;re? A. We had to get a roof here to take the water off, and then we were ready to take this down. And then is where the trouble commenced ; they would not let us take it down ; wc had to run a wall through there, and they would not let us do it. But that is a bad plan ; it is not a fair one. Witness excused. Mr. Bodwell. We tender now the evidence of Albert E. Corbett taken on c/c dene esse, my Lord. Mr. Helmcken. I produce that now, my Lord, with the affidavit that Corbett is not to the best of my knowledge and belief within the jurisdiction of the Court, Mr. Mill objected to any statements in Corbett 's evidence as to anything contained -'* in the plans or specifications. Objection overruled. Mr. Helmcken read the direct examination of Corbett excepting from page 7 line 5 to page 8 line 23, inclusive. Mr. Mills. 1 submit, my Lord, he must read the whole of it. The Court. He can read what he desires of it Mr. Mills. Then shall I read the cross-examination ? The Court. Yes, if you wish. Mr. Mills read the cross-examination of Corbett. Court adjourned untill 2 p. m. to-morrow. 30 I hereby certify the foregoing to be a true and accurate report of the said proceedings JUSTIN GILBERT, Official Stenographer. r (14 . Victoria, Tues. 17th Oct., 1893, 2 p. m, Court met pursuant to adjournment. JOHN ANDERSON beint,' called oti behalf of phintiff, and sworn, testified as follows : Direct examination by Mr. Helmcken. • Q. What is your name? A. John Anderson. Q. What is your occupation ? A. Just now on the sewers ; inspector. Q. Did you have anything whatever to do with what is known as the Duck Building? ' A. Yes, I was foreman brickbyer over the brick building and the stone part of the building. lU. Q. You were foreman over the stone building and the brick building, in the Duck Building. A. Yes, sir. Q. Stone work and brick work, I should say. What did you do in connection with that work ? A. I acted as foreman under Mr. Adams, and formerly under Mr Grant, from the beginning to the completion. Q. Now, have you got any recollection of some stiffening piers put in in the building? A. Ye.s, there were three put in in the upper — what you call the Knights of Pythias hall now ; the upper story in the back of the building. Q. There were three piers put in. A. Yes, sir. Q Do you know the size ? A. The story is 25 feet high; there was two of them 2(' five feet si.x inches long and four inches or four inches and a half wide ; and one four feet; the full height of the story. Q. Now, by whom was that work ordered ? A. Well, it was ordered by Mr. White- way in the first place ; he told me — I think he ordered it at first to Mr. Corbett. Mr. Adams he had a man called Corbett, who wis kind of looking after the whole of the work under Mr. Adams ; and Mr. Whiteway told me that these piers had been ordered by Mr. Northcotte. They were over and above the plan. Q. Who is Mr. Northcotte? A. The City inspector, Q. You said it was outside of the contract ? A. Yes, they were not in the contract. Q. Who is Mr. Northcotte, you say? A. I believe he is the building inspector, the.'iO man that looks over the buildings for the city. Q. Now. then was any of that work done before you commenced work on the stiffen- ing piers? A. Yes, we was — I think the outside of the wall was up about three feet and m ill' !H n» V r* 65 the inside would be about two feet ; wc wps five or six or seven courses below that when Mr. Wliitewny said that had to be put in. Wc were starting on the story that morning and he didn't cume until probably nine or ten o'clock. Q. Now, do you know the amount of bricks put in ? A. Ahout 2,096 in the two five foot six piers and 700 in the four foot piers. Q. Now, then can you tell us the price of bricks at that time ? A I am not exactly sure about the price ; the price was dearer then than now. I believe they were somewhere about eight dollars in the yird. I think it was about $9 laid dnwn ; I didn't know the price then. Q. Now, can you tell us what the bricks would belaid in position? What would 1*^ they be worth? What would be a fair price? A Well, of course you know it was two stories up and it was a 23-foot story that would cost more than on a building one story high ; so I told Mr. Adams to mark down about $17.50 a thousand laid in the wall. I think that was about a reasonable price. We didn't count them when we laid them. The Court : Q. $17. 50 for bricks a thousa-d. A. Bricks and labor finished in the wall. I count $(7.50 per thousand laid in the w~ll. The Court ; Oh, I see, f A. Bricks and labor and all. Of course I mide that out as it was a 23-foot story and we was two stories up before that 25 foot story commenced So that it is bound to be 20 worth more than on a story lower down, Mr. Mills: How many stories up? A. It was two storias when this story was started, and of course that story is equal to two stories, a 25-foot story. Q. Was that work necessary? A. Well — well, I don't know, it was ordered by the building inspector. I think it was. Q. You think it was necessary. You had nothing whatever to do with the carpenter work, had you ? You were simply on brick and stone ? A. Simply brick and stone. Q. Now, had you any other work to do of a similar nature in that building? Extra piers between the old and new building. Do you recollect those piers? A, Yes sir. Q. By whom were they ordered ? 80 A. Well, Mr. Corbett ordered me in the first place, r.nd Mr. Whiteway said they had to be done, and Mr. Duck was around there. It was a kind of extra that wjls to raise the floor of the closjets in between the old and new building. Of course our building stopped — they had so much in the specifications for closets, and I believe those floors were raised up and these piers were put in to hold the joists ; there were thirteen of them ; they 6B averaged about 13 or 14 bricks each pier I believe ; and then tliere was a wall in front through an opening ; there were fifty bricks 1 believe ; I counted them at the time for Mr. Duck. Q. 13 pillars of 13 bricks. A. 13 or 14 bricks in each piilir. Q. I see. Well, was this outside the contract? A, Yes. Mr. Mills : I object to that, my Lord. It is a question of law here whether it is inside or outside of the contract. The Court : Hardly ; it is a question of fact ; if the man knows whether they were in the specifications at all. It is no question of law. The Court : Q. Is the price seven dollars and 12 cents ($7.12) low for that work ? 1(» A. I consider it small, because I was there a good part of the day myself, at it, and was running tiie job before th 't and I think it was a small figure. Q. That is you say it is a price under the mark ? A. I don't think it is too much ; I would have charged more myself. Q. You would hive charged more? A, Yes. Q. Setting two extra ventilators — item 15. Can you give us any evidence about those two ventilators ? A. There were so miny ventilators in the contract specified. Q. Yes. A. And of course we put in, I think, there was one extrn. one put in the front, you know. As near ?s I can mind there was eight altogether in the specifications, and of 20 course they were put in ; and Mr. Duck thought he would have the other two, and he bought the irons and I simply put them in. Q. Mr. Duck bought the ventilators and you put them in, A. As near as I can remember ; I am nearly sure about it. Q. Do you know the price ? A, I didn't give the price out to Mr. Adams all for that item, there was something else in the item. Mr. Bodwell : Q. The price charged was $2. Would that be a proper charge? A. I think so ; yes, sir. Q. Item 16. Do you recollect anything about beam filling, Mr. Anderson ? A. Yes. That is between the old and new building. That was after, long after 1 1^^) was finished with the general part of the work, and Mr. Adams he done it and said he was going to charge for it, It is not in the specifications or the plans either. But Mr. Duck \ I 1 11 ■mi (!7 nr-intained that it was. But of course the plans, to my ideas, didn't show it. The amount that I gave to Mr. Adams he gave me a receipt for the money. There was 500 bricks and mortar and scaffb'ding. Q. Now the 500 bricks are charged here r't $5 and the three barrels of mortar at $3. Are those fair prices? A, That is what I gave Mr. Brown for the bricks. And tlie three barrels of mortar I think I got from Mr. Smith. I paid the money over ; that is what I give. O. That is the proper charge? A. Ves, sir ; that is what I got it for for Mr. Adams. Q. Did Mr. Whiteway have anything to do with that? A. No ; Mr. VVhiteway was away then. 10 Q. I .see. A. Of course it was Mr. Adams told me to do it ; he said he was going to charge for it. Q, But Mr. Duck insisted that it must be done? A. \\'cll, I was talking to Mr. Duck once or twice and he stated there wnv I had to go awa\' and get scaffolding a scaffold from the top of the closets, and get up between the old and new building, you know it was not like layirg 500 bricks anywhere else. O. Item 17; repairs on old roof. Do you recollect anything •'bout that? A. Yes, well that was — Mr. Duck was repairing his old building that was not in connection with the contract at all. He simply — Mr. Mills; That is paid for. A. Mr. Corbett had carpenters fixing the w; of, the time they reconstructed the partition wall where the beams went across to carry the wooden partition between the main building and the Knights of Pythias hall ; it was re- altered, tliat is about the end. 69 O. How long were you delayed in consequence of that ? A- I couldn't give you- - it might be a week or might be ten or twelve days, The Court : O. The reconstruction of the Knights of Pythias hall ? A. Yes. O. Will you just explain that to the Court to show why the work was done ? A. Well, just simply the partition was up and they found that they had to alter it and the carpenters had to take it all out and reconstruct the trusses again in the partition. Of course the bricklayers stopped about a week ; I am not sure. Q. Now, do you iNnow when you finished bricklaying? Some time in July I think ; I have the time book here. (Witness looks at book). Mr. Mills : Was that note made at the time ? A. Oh, yes, the time book is here, 10 just made from week to week. The Court : That is your time book ? ' . : , ' A. Yes, sir. Friday, July 8th, was the last time that any bricklayers worked, unless I was there painting afterwards ; I was there painting a door afterwards I think. July was the last. Cross-examination by Mr. Mills. Q Did you have a copy of the worUng plans ? A, Well, there was — no I hadn't any other copy than the one that was on the build- ing. 1 think there was two. Q, They were handed or delivered to the contractor. The contractor's copy ? A. I .){) had not any other one than the one that I think Mr Grant's name was on it. I think so, I am not certain. Q Mr. Grant's name was on it. What became of those plans ? A. I couldn't say. Q. Did you ever read the specifications ? A. I read it often enough. Q. You did. A. Connected with my own part of the work. O. Connected with your own part of the work. 1 understood you to say just now that in youi judgment you consider these things that you have mentioned to be e.xtra or additional work. A. Some things. Q. Why didnt you get a written order from the architect? A Well, the architect ;>,() was a kind of a man — he wouldn't give you any written order. Q. He wouldn't give you any written order ? A. No. 70 O. Did you make a demand in writing ? A. I went on'jc for an order about puttinjj in a stone that he askef'., and the stone cutter and he had some trouble ; he told him to fix a stone a certain way, and he told me not to put it in, and i went for an order and the stone mason told me he had ordered him to make it a certain way, 'nd he said he didn't, and I went back again to him and he said what he told the stone cutter was to make it any damned way he pleased — put them in that way or leave them out as we pleased. O. But other wor.< not mentioned in these specifications, and necessary to complete the wor!<, the same to be com[>leted to the true intent and meaning of the drawings and specifications are to be done without extra charge. Did you ever read those things in the 10 specifications? A. Yes, sir they are mostly in every .specifications. O. Will you just point th:;m out to the Court ? (Document handed witness.) The Court : That is the usual clause in ever)' specific.tion I have ever .seen. The witness: 1 see a part here. O. Let me see. That is not the specification. A- I .see a part here Q. I am referring to the specification. A. It might take me a week to find it now. Q. Whose instructions did you follow in doing the work ? A. Well, Mr. Grant while he was there. 0. And after Mr. Grant left? A. Mr. Adams, of course, was my employer. O. Mr. Adams; of course he was your employer, What instructions did he give 20 you with regard to thr, work? A. To do the work according to the plans; he just told me to go on as I was doing. O. He was leaving the woik to your judgment? A. Not exactly, he employed me to be a foreman and to run ihe work to the best advantage, Q. How often was he there? A. He was there — he was there pretty often some- times, and sometimes he wasn't there for a little while, mostly every day I think. Q. Did he differ with the architect as to how the work was to he done ? A. I don't thin'; he differed in the brick work. Q. You don't think he differed in the brick work ? And when there was a differ- ence of opinion, between Adams and the architect, who.se instructions did you follow ? A. ■".(> Well, I never seen nny difference of opinion so far as my work. Q. You never seen any difference of opinion. A. As far as the brick work. •ii 71 (J. As far as tlvj brick work ; ! mean as far as any other work? A. I don't know ai I saw thoin differ much ; the difference seemed to al! happen after the job was finished, to my idea. Q. The difference appeared after lie job was fi.iished, Did he give you any reason why he would not give an order in writing? — that is, the archifect ? A, Well, the order was from word of mout'i repeated, and Mr, Duck was there too when that was done, and I often spoke about it before Mr. Whiteway and Mr Corbett, Mr, Corbett was taking down everything ; ! used to give him off everything, and they said there would be no trouble about that ; they were there and whatever was over and above the speci'ications would be all right And I believe Mr. Duck said it more than 10 once to me O. Do you know .Mr. Whiteway denies that? A. i don't know whether he denies it or not. H? couldnt deny that. Q. Do you know he considered it was necessary to carry out the plans and specifica- tions, those things that you have mentioned ? A. Yes, sir ; as far as the piers are con- cerned I believe he wouldn't put thf^m in, only Mr. Northcott ordered it ; that is what he told me, that he ordered them. Q. Now, 1 believe the roof was to be a slate roof was it not ? Wasn't there to be some slate? A. You may as well say it was going to be a glass roof. O. What about the slate? A You couldn't put slate on that roof. -jd O. Wasn't there something in the specifications about some slate being used ? A. 1 couldn't say. Q. You couldn't say ? A. Hut there was no design of slate on the building. Q Rut you know there was slate omitted in certain work? Objected to. The Witness ; It is nearly a year since I seen the specifications : it is over a year 1 think since I seen the specifications. Q. Will you look at that specification.s, and I will call your attention to it A. If you will tell me the page ; I don't want to commit my.self that way ; I do believe there was some slate mentioned about pinning up wall plates or something. ;^() Q. They were omitted were they not? A. They were never required. It was only where the wall was low, or something. Q. XA'ell. with regard to the arch in the printing office, what was the cause of that coming down ? A. Well, there may be a difference of opinion about that. *f1 72 CJ. Give me your opinion. The Court: O. Did the arch fall ? A. It came down a certain way. The Court : O. The arch settled ? A. Yes. You see there was a beam right in the top of a green arch, there was nothing in the .-jpecifications but for that beam to rest on the green arch ; four or five rings I think it was. * O. Was it put there while the arch was green ? A. Yes. O. That was the cause of it giving way? A, That was the cause of it giving way. It ought never to be on the arch for six months ; it would take six month.s to hold it, to 10 stiffen it properly. O. Who put the beam there ? A. It was the carpenters, Q. The carpenters put it there, A. I believe the arch, that would hold a railroad tunnel, but it would not hold a beam right in the centre of it. O, Didn't you tell Mr. Duck that that arch would hold up the Thames Tunnel ? A. Yes, so it would, it is as big as .some of the arches in the Thames, but it would not hold a beam in the middle of it. O. It would not hold it because it was green, A. But the building had to be finished within a certain time ; you couldn't keep waiting so long. Q. Now, with regard to extra work. Who measured it up, the extra brick work ? 20 ' A. The piers arc four feet six by six feet, Q. V\'hen did you measure it up? A, WeM, when I got the money ■■: i Mr. Adams last October ; I am not certain. Q. Hasn',t it been measured twice ? A, I didn't put my rule on it since I built it. O. Didn't you tell somebody you had measured it up twice and charged it to Mr. Duck. A. Who to ? M O. Have you ? Objected to. Q. Have you ever said so ? The Witness : Have you ever said I was a liar, Mr. Mills ? Hi) 5* ■ 78 The Court : Answer the (luestion. Q. Did you ever s\v that to any man ? A. No sir, I didn't O. That is ail right. Mr, Hodweli : He has not specified tinrie and place. O. Then you charge more for the bricl< in tlic ash pit than for those in the piers in the third story, A. 1 don't know what the charge is for the brick, I always gave ofT the amount of the bricks — eight hundred and something, I don't remember. Q. I see. Did you furnish Mr. Adams with the particulars of the extra work before you left the job ? A, I ga\ e him off these extras, some of them to him and some of them to Mr. C'nrbett. 10 O. Where did Mr. Adams get this from? (Document handed to witness.) A. I couldn't say ; I never Mr, Hodweli : The fair way would be to ask this witness whether he ever saw that d'lcutncnt in the first pl.ice. The Wit less : No, I don't know ; I give them off some of them to Corbett and some them to Adams, O, And some to Mr. Adams ? A, After Corbett was away I give them off to Mr. Adams. Q, I sec there is a difference in price in some of these items here, to those in the par- ticulars delivered yesterday. A. I never priced anything; I simply give the time and the 20 materia! off. Q. Could the clo.sets have been put in without raising the floors in the 'lley way ? A. I couldn't say that ; they might put them down, they would be down below the side walk. Hut I remember Mr. Duck telling them distinctly that though this was an extra wor ; there at the piers ; distinctly ; he was in there with me most of the time. He said it was some extra in all Q. How much did they raise this plank to become level with the side walk ? A. I will have to go and measure to tell you. It is sixteen months since I was in there. O. It is about two or three inches isn't it ? A. Two or three ? Q. Yes. A. There is two or three steps goes down to the old building steps. HO Q. Well, you haven't seen it for sixteen months. A. The ground was filled in there. Q. Do you consider the beam filling was needed, or required to make the building what it should be ? 74 A. Oh, if It M^as asked I should say that the whole joists ought to be plastered to make it complete. The whole beam and the joists is open j'et. Of course that was not in the specifications or plans either. Q, It is not done ; it is not plastered ? A. No, it never was meant to be done under the contract. Q, Now, with regard to this delay, let me thoroughly understand. What was the cause of the delay ? A. The only delay I said I knew about was when they altered the trusses, altering the partition. We could not have gone on with the work on top of that wall ; the carpenters were working at it. Thnt is all the delay we had there. 1*' Q. Did the original plans ?nd specifications call for any trussing ? A. Well, they called for another kind of a beam, and they were put in I believe ac cording to the pl.'n ; I couldn't say whether they are just to the plan or exactly what was wanted. But I know this was a reconstruction altogether. It was altered differently from what it was me'^nt to be in the first place. After it was put up it sunk down quite a ways. Q. And how long were you delayed in this work ? A. 1 really couldn't tell you how long ; it might be a week and it might be ten days. I know the men was laid off I don't mind the dates, or I might tell by my time books. Q. How man\' men were laid off? A. We had 6 or 8, I believe we had more brick, -jo layers. Q. About wiiat date was this ? A.I say I dont know the date, or I might tell you how long we were delayed. I have only the time book showing the men's time. Q. Was there any delay in gettirg the material there during the time you were on the job ? A. There was no delay getting bricks. Of course the stone didn t come, hut we went on with the building, the back you know. O. Mow long were you delayed with the stone ? A. If wc had slopped and 1 uilt the building as the stone arrived, we would have been delayed, but we went rn without the stone. « Q. Were you there during the time Martin and Wellman were there? A. Who are they? ;U) Q. The men who did the finishing work. A. I was only around there doing some painting. Q. You were only around there doing some painting ? A Stone work — of course i was around now and again, but I don't think I was working much while they were there, filling in some holes or something. Q. Were you there after the rst of August ? 75 A. Well, I believe when I built that — The beam filling I believe was done after August ; I didn't mark that in the time book. The Ipst time I have in the time book is the 8th of July. Anything after that Mr. Adams paid me when he seen fit. Sometimes months after ; 1 was in his debt, and sometimes he was in mine. Q. Have you and Mr. Adams h'-d business transactions before? A. No, I never saw the man before I saw him on the Duck building to know him. O. I see. In the deduction of $5 for the original ash pit, does that include everything? A. I was saying that the two walls that was in the plan might be built for about $5. Of course there was some iron work, 1 believe in the plan, but they were all put in the present one. That is the doors. H) The Court : That is now charged as extra ? A. No. About that, Mr. Duck distinctly understood that whatever the ash pit wai^ over the original, we weis just to charge for the new one and deduct the one thas was in the plan. Q. Who did that work ? A. I think I did the most of it O. Did the carpenters do any of it ? A. I don't think — they might have a centre for the arch, but I am not sure ; I don't know whether I picked up the sticks or whether they made it. But Mr. Duck he supplied the iron. There were two bolts went through the wall to hold the arch. Q. Wouldn't they have to make that arch recording to the original plans? A. No. •_>(> O. The centres? A. There was no arch in it, there was never meant to be an arch o\ I r it in the first place. At least the plan didn't show it to me. Re-examination by Mr. Helmcken. O. Your time book, Mr. Anderson, would that show the delay ? A. If I knew the date I might tell you the amount of bricklayers we worked to the ones we worked the week before. Hut I did not mark the delay you know. If I knew the date I could give you the amount of men before and after, that was workii g on the job. Q. Thnt is the way you could tell the delay ? A. There might be ten men the week 'M) before, and might be five that week ; I couldn't tell you about the delay. Witness excused. 1 ^H9 t 1 76 WILLIAM WALTER NORTHCOTTE being called on behalf of plaintiff, and sworn, testified as follows: Direct examination by Mr. Helmcken. Q. What is your occupation, sir? A. I am building inspector for the city Q. City of Victoria? A. Yes, sir. Q. Were you such in 1892? A. I was. Q. In the course of your official duties, had you anything to do with the Duck building? A. Yes. I called down to the architr.ct and saw the plans, to see if the walls were the required thickness according to the by-laws ; and ihey were all except one wall, that is ,.x tlv upstairs wall, the west wall ; and I suggested it to Mr. Duck and to Mr. Whiteway, the architect, to put some piers in the wall to make it stiffer ; which they did. Q. You say that it was done ? A. Yes, sir. » The Court : The upper west wall was not indicated in accordance with the by-laws ? A. Well, ' didn't consider it was, and I thought to make it stronger they better put some piers in. Witness excused. CHARLES HENRY WILSON being called on hehalf of the plaintiff, and sworn, testified as follows; Direct examination by Mr. Helmcken. .jo Q. What is your full name, sir? A. Charles Henry Wilson. Q. What is your occupation ? A, Manager of the Vancouver Iron Works — that is at the time this elevator was built — it is the Victoria Iron Works now. Q. Victoria Iron Works now, then the Vancouver Iron Works? A Yes. Q. What had you to do in connection with the Duck Building? .A. We had the contract for the building iron work and the elevator iron work. Q. You had the contract, had you ? A Yes, sir. Q. Now about what time was that contract? A. It was dated the i ith February, 1892, to Mr. Grant. >^^^ Q. I Ith of February? A. -or I Ith of April ? J**' m 77 Q. Did you bring your letter book with you ? A. No. Mr. Mills : 1 will ask for the contract, if it is in writing. Witness : I tendered in writing, that is all. Q. Will you bring your letter book ? A. Yes, I will send for it. Mr. Helmcken : We will undertake, my Lord, to produce that and put it in. The Court : There is no necessity for you to put it in unless you are going to put in the contents of it. Mr. Bodwell : We will produce it for Mr. Mills inspection. Q. You had a contract for the iron work in connection with the building ? A. \ es. Q. Did you see Mr. Whiteway at all? 10 A. I saw Mr. Whiteway several times, both before and after the contract was let. Q. And what was the purport of your conversation ? A. Well, on building contracts, we usually — either myself or the foreman or myself will go to the architect's office The Court : Confine yourself to what you did on this occasion ; 1 don't want your usual practice, but what you did on this occasion. A. I went to Mr. Whiteway's office, took o(T the amount of iron work, made up my bid, and put it into the different contractors. About the elevator, I asked him what the elevator would be. if it was a common one, or if it was a special elevator, or what it was, because there was nothing specified in it with regard to the kind that would have to 20 be put in. Q. Yes. What did he say ? A. Well he said that he didn't know much about an elevator, but there would be time enough to settle about that afterwards ; we could figure on putting in an ordinary elevatur — doing iron work for an ordinary elevator. Q. Did you ask for a plan and specifications? A. Not at that time, no more than wh'.t I have told you. Q. Did you refer to any elevators at all ? A. Not until Mr. Grant was awarded the contract Q. After th.-^ contract was awarded to you. Mr. Mills : Mr. Grant was awarded, he said. Q. The same thing. You went to see Mr. Whiteway ? A. Yes. :i() fcj Ij ^1 78 Q. Now then had you any conversation with him in reference to the plans, then ? A. I asked him several times for a plan for the elevator. Q. What reply did he give ? A. He said he didn't know anything about elevators. Q. About what time would that be ? A. Oh, from the beginning of May up till some time in September. There were applications made every few days. Q. I see. Were you successful in getting any ? A. No. Q. What did you do? A. I told him about one that was done here on Wharf Street, and he went and saw that, I believe. Q You did not go with him ? A. No. • ]() Q. Weil, after he had seen that, did he have any conversation with you ? A. He told me that would suit. Q. About what time would that he ? A. That would be about the beginning of September, I think. Q. What did you do then ? A. Well, I bought that one from Strauss & Co. The Court: Bought it? A. Yes, Sir, at a sale. O. What did you do ? A I took it to the shop, there was one of the geir wheels was broken. I made a new one. The Court; Repaired it? A. Yes, your Lordship. ' 2(1 Q. Did Mr. vVhiteway see this? A. Yes he saw it at the shop, at the works. (J. Did he say .inything about it ? A. He was perfectly well satisfied with it. Q. Now, hr>d you any complaints made to you about the elevator? A. Well no, not from — not since it was put in , not since the building is supposed to be finished. Q. Was this elevator you were speaking about — was that put in the building ? A. Yes it was put in the building, but it was altered after it was put in. Q. I see. Do you recollect when it was put in ? A. It would be .some time between the ist and the 20th of September I think ; I could not tell you the date of that ; it might have been the beginning of October. 8(1 1 i A H A n 79 Q. Who superintended that work in the shop Mr. Wilson ? A. The foreman. Q. Who was your superintendent ? A. Mr. Law. Q. He had chiefly to do with the work itself ? A. Yes sir. Our order book will show you where there were alterations made on the elevator after it was taken out of our hands. I think those orders were given about the beginning of October. Q. I see. That was after it left your shop? A. After it left our works. Cross-Examination by Mr. Mills. Q. What was the date of your tender ? A. Well I answered Mr. Helmcken I couldn't tell that, Mr. Mills. Our letter book 1 will show — our •^ender book ? Q, You say about the i i th of February ? A. I said — February the 28th, is the date that 1 made my tender out : but my tender to Mr. Grant I think was given March i ith. or April i ith. Q. Tender dated the 28th of February ? A. Not my tender — my estimate given is dated that day, Q. An estimate for the work. Did that include the elevator or hoist? A. No sir. O. It did not ? A. No sir. Q. When did you put in thnt? A. It included the elevator iron work — the iron work for the elevator. 20 Q. It included the iron work for the elevator ? A. Yes, sir. Q' That was p?rt of the work ? A. Yes. sir. Q. You hnd nothing to do with the elevator? A. Merely to furnish the iron works. Q. And do you know the date your tender was accepted — or estimate accepted ? A. No, I couldn't tell you that ; it would be three or four days after Mr. Grant signed his contract. Q. ihree or four days after Mr. Grant signed his contract? A. Something like that Q. And Mr. Whiteway said in answer to questions put to him by you that he only wanted an ordinary elevator ? A. That was what he wanted to put up, yes. M m ^:l Q. So that you put in an estimate then without requiring any plans or specifications to be shown to you in that matter ? A. Weil, no more than an ordinary cicvator, the {»eneral — somethinfj like what is in use in town — in the city here. Q. There is nothing special about the construction of these elevators ? A Notiiing special about them ? Q. Yes. A. I don't think so. Q. D »s it require any special knowledge from a man like you ? A. No, not to make that kind. Q. No, not te make thit kind ? A. Not to make any kind that is made in Victoria. Q. Not to make any kind that is made in Victoria Have you put in any elevator 10 in any otlicr buildings? A. Well, I couldn't tell you unless I looked through our books. Q. Was this an elevator or a hoist ? A. Well, if you can tell me the difference be- twc' n the two words, F will tell you ; I cannot. Q. Whcit kind was this? A. This was an ordinary elevator, and Mr. Adams added a fly wheel to i*^ afterwards, I think. Q. How much did you give for it? A. I gave $75, if I remember right ; I think it was $75. Q. How long had it been in use? A. I think about three or four years. Q. Did you test it as to whether it would carry two tons or not? A. No ; 1 might add they paid me some $300 and some odd dollars for it ; I saw it in use many times. -'• Q. You have not seen it since it was in the Duck biii'^^'ng ? A. No, sir, I had nothing whatever to do with it. Q What is the size of the shaft ? A. That I couldn't tell you. O. Do you know of your own knowledge whether it would carry the two tons ? A. Yes I guess it would. O. How would you know? A. Why the work it done down at Strauss', I think it would carry two tons, I couldn't tell you what it would carry .low, because they altered it altogether. Q. D they reduce the size of the main shaft ? A. No, I don't think the size of the shaft was reduced ; the length was reduced. M) Q. Would that strengthen it or weaken it? A. The length? Q. Yes ? A. Yes, it would strengthen it 81 Q. So that it would strengthen it to shorten it? A. I don't know whether it was done to strengthen it ; it was putting a long shaft into a place that was not long enough for it, and that was the rejison. Q. Well, to shorten it would generally strengthen it? A. Yes. Q. But it would under ordinary circumstances work satisfactorily ? A- I couldn't tell you, not since they made the alterations. Q. You have not seen it since? A. No. They had some weights cast for it at my expense ; I did not charge them anything for it. Q. How could you tender on that iron work unless you knew exactly what it was to be ? A. I told you, Mr, Mills, that I spoke to Mr. Whiteway before I made my tender 10 out. I said : " What it this ? Is this an ele\ator that costs $i.ooo or $20, or what does it cost ?" And he said an ordinary elevator. And upon thnt I made my estimate. Q. And it was an ordinary elevator ? A. I suppose so. It was satisfactory to him when he seen it. Witness excused. MORRIS LAW being called on behalf of plaintiff, and sworn, testified as follows. Direct examination by Mr. Helmcken. O. What is your name, sir? A. Morris Luv. sir, Q, What is your (occupation ? A. Foreman ironworker, Victoria ironworks. Q How long have you been there ? A Three years August 20 Q. Do you recollect having anything to do with the Duck building? A Yes, sir Q. What had you to do with that ? A. I had the supervision of all iron work coming into the shop. O. I .see. Do you recollect anything about an elevator ? A. Yes, sir. Q. H.id you anything to do with that? A Ves, sir , (J. lell us what you had to do? A. \v hat work was done regarding the elevator, first we shortened down the barrel. Q. What is that used for ? A. I don't knew ; there was some alteration required and it was sent back to the shop and it was cut down. The next work that w;is done in connection with it, was iron bolts :{(' and iron braces and a cast iron weight, 1 WW' 82 Q. Would your order book show those ? A. Yes, sir. Q. Have you got your order book ? A. My order book is there. Q. (Book handed to witness). Is that book in your handwriting ? A. Yes, part of it. Q. This part that has anything to do with the elevat.aor are those entries in your hand writing? A, Yes, sir. Q. Now, can you tell us the first of these entries ? A. The first was on September the 20th. Q. September the 20th ? A. Yes, sir. Q. Now, at that time did you work by any sketch or plan or what f A. To what part do you men ? 10 Q, To the elevator now, work connected with the elevator. A, The only plans, any- thing we worked tc, was just a pencil drawi ig brought down by one of the carpenters. Q. You had no plan or sketch from the architect at all ? A. No, sir. Q, When did you first receive that ? A. That was about the 23rd of September. O. 23rd September ? A 1892. Q. Now, then, can you tell me in what time you completed the work after that ? A. The time it was completed at the shop was October 5th. Q. Why didn't you go at this work sooner ? A. Hecp.use there was no plans furnished, Q. You recollect any attempt to get a plan from the architect ? A, I recollect a carpenter coming down and asking me when wc were going to start the elevator, and I '-^0 told him i couldn't make any start until the plans were furnished. Q. Do you recollect about when that was? A. I think it was about the latter part of May the first application was made for it, and I applied to Mr. Wilson. Q. And this time you are speaking about the carpenter coming down, was the latter part of May ? A. That was the carpenter that had the contract in the first place. I think he was Mr, Adams' foreman on the carpenter work, Q. Could you tell me the date when' that was? A. I couldn't tell you the exact dates because they were down very often, very often, until we got the job finished. (J. Did they always get the same answer? A. They always got the same answer. Q. And it was not until September 23rd — A. And it was not until September 33rd j^O that any real sketch came into the shop at all. 11 f fwl ■1'' f i ;| 1 '& m 1 1 1 i I 1 83 Cross-examination by Mr. Mills. Q. You had a great contract on hand, had you not, at that time for the Tramway Company ? A. No, sir. Q. Not at that time ? A. No. Q. When did you complete it then ? A. At what time do you allude to? Q. The time you were referring to just now ? A. 1 was referring to two or three different times. Q. Well, the last time, when you completed it? K. When I completed it? Q. When Wellman or Martin got done with the rjugh plan, you see? A. I think we was about finished with our prii;cipal work with ',ie Tramway. 1(> Q. About finished with your principal work with the Tramway ? A. Yes, sir. Q. Were you late in that work? A. No, sir, we finished on time. O. Justin time? A. We was finished on time. Q. Just finished on time. Can you recognize the men that brought down that? Look at the two men over there (pointing) which man brought down the rough plan ? A. I believe it was that gentleman, the tall man (indicating). Q. Stand up, Mr. Martin (party stands up). Isthat the man you referred to ? A. That is the gentleman. Witness excused. MR. ADAMS being re-catled, testified as follows: 20 Questions by Mr. Bodwell. Q. Mr. John Hagarty brought an action again.st you, or filed a lien for money due in connection with this building? A. Yes, sir. Q. Has his claim been paid? A. It has. Q. Frederick Adams also put a lien on it didn't he ? A, Yes. Q. Has that claim been paid ? A. Fully. rhe Court : . Q. No other liens? No, there was a lien I put on myself and knocked it off. (J You cancelled it yourself ? A. No, Judge Begbie ordered it cancelled. ^ 1 A m 88 The Court . Q. The flooring supplied ? A. The flooring not supplied. Q. Now, when the flooring was supplied, did you have any trouble with it ? A. The flooring supplied, a great deal of it we had to cut olT and throw away ; a great deal of it was returned to the mill, Mr. VVhiteway would not admit of it. Q. How much time do you think you lost or 'hit? A. That would be hard to ascertain ; we laid off our men that was laying the ncor under contract — we laid him ofi" three different times. Q. How much did you loose ? A. One time two or three days and another time three or four days, and one time he was off about one day, or not quite one day Q. How much flooring do you think had to be hauled awpy and was defective then ? 1^* A. I didn't make any estimate of it, 1 should think though at a rough guess there was two or three thousand feet of it that was returned. Q. Two or three thousand feet ? A. Yes, sir. Q. If the material had been supplied to you as you required it, wlien do you thinl< you could have completed your work ? A, Well, I think we would have completed it b> the middle of September, anyway, provided we had put on plenty of force to have done it. It was to our interest to complete it as soon as possible. Q. You mentioner a );■. nh?r of things in the first instance. Did you have to wait from time to time for those ? A, Yes, sir Q. You did ? A. Had to spend a great deal of time running to the mill ourselves, "20 trying to see whether we could get it. Q. You had to go down yourself, had you ? A Yes, sir ; very often Q. What did you want to trouble yourself about going down there for? A. Simply to advance the work. Q. Was it part of your work to construct the elevator or hoist ? A. Yes, sir, it was part of our contract. Q. It was ; that was in your contract, was it ? A. Yes, sir, to build the hoist. Q. Did you rsquir'- any plans? A. Well, 1 didn't really diink that any plans were necessary fo have built that hoist ; it is simple Q. You didn't think any plans were necessary ? A I should not have thought so. 80 Q. Did you demand any plant- ^ A No, sir Q. Who furnished Mr Wilson the sketch, do you know ? A. I think Mr. Martin did. 89 Q. Did the elevator delay ynu in your work ? A. It surely did. O. What? A. In our finishing ? Q. Yes ? A Not in any part of the fini'^hing, it did not, but it delayed us in the completion of the job. The Court : What ? A, Want of the elevator material to put up the elevator. Q. Have you built any elevators before, or hoists ? A. Have I ever ? Q. Yes? A. Yes, Sir. Q, Did you ever get plans from the architect ? A. I don't know that I ever did, Sir. Q. Never did. A. We generally knew the size of the opening, and we knew the lioight of our posts, and so on. 10 Q. What condition did you find some of the ground work in ? A . For the elevator ? Q. No, that you had to finish on, A. We found it in very bad condition. The Court : What ground work ? A. The grounds that were put on. Mr. Hodwe!: : It has nothing to do with any building, or specifications. Mr. Mills : I am just going to call proof that it required more lime to do it Q. Did that require more time? Whnt did you have t(i do ' A. In some instances we had to take it off entirely, and in some instances we had to put on ; and sometimes blocked the walls with blocks to receive the nails of the base. Q. And that required further time ? A. And that required fuither time ; yes, Sir, of course all those things take time. -20 Q. Did you have any trouble with the stairs or the stair rails ? A. Tha stair rails were sent there in such a condition that Mr. Wh^teway at first refused to receive them. Objected to ; sustained. Mr. Mills : I am only speaking about the delay. Q. Were they there in time ? A, No, Sir. Q. Were you delayed on that account? A. We gave the stairs out to a sub-con- tractor — and in order The Court : Q. You gave the contract for the stair;, ig ? A. Yes, Sir. 90 The Court : Then you need not speak with regard to that. O, I see that Mr. Adams has charged for extra work here. Vou heard the evidence, have you not ? Did you hear the evidence of Mr. Adams in court? A. I heard it, yes, Sir. Q. Now, did you do any of that work ? A. We did, Sir. Q, What is called here ns extras ? A. \\'e did considerable of extra work. Q. Could you point cut on those pnrticulars what part of the work you did ? A. Just recall them over and I will tell you if there is any of them that we did Q. Trussing three spans over stores ; would that t c your work ? A. No, Sir Q. Heel plate on rafters? A. I had nothing to do with that. jo Q. Stiffening piers were not ? A. No, Sir. Q Runway to the old building ? A. We did .some work on that. Q. What work did you do on that ? A. We sealed it up cut out over head, and put a post under, and fiuitencd up the okl roof ; that extends from the old building to the new ; i did all the work that was done in that part of it. The chute was put in, the incline was put in, and the rough boards were put on ; we did not do that. Q. How much do yon think was the value of that work, that is you and your two other partners ? A. Well I should think probably all the work that we did there would havt- taken 2() one m-in about two days. Q. How much would that be ? A. $6.00. Q. Projection into printing office in connection with runw '3'. Did you do anything to that ? A. We did all that was done on that, that I know anything A^' »2 A- I d^r^'t 1< low thit I ever did. Q. Did Mr. Miller del ly yon ? A. No, sir. O. Were you there during the time? A. We had iiothin{^ to do with thnt until after Miller— Q. Until after Miller had moved upstairs? A. Yes. There was just enough of the floor laid for Miller to get his machinery on. and we did the balance of it. O. Well, I understnod you to say that if propermitcrial had been supplied to you you could have got through six weeks sooner than you did ? A. I think we could have done it in six weeks, if we had enough men. The Court : Me snid if the material had been properly supplied, he could have fin- 10 ished it by the middle of September. Q. How long do you think you were delayed in your work altogether now ? A. Well, it would be pretty difficult, the delays would be so irregular it would be difficult to tell. I have said I think we must have been d';la>ed — I could not tell you exactly — I could approximate somewhere near the delay. The Court : You said from the middle of September until the termination. The witness : Yes, that would be about the time. Q, How long would that be altogether? A. Well, it would have been three weeks according to that. Q, About three weeks ? A. According to j'our calculation. .y^ Q. Can you tell me whether that arch in the store below was necessary by reason of the stairs being changed to a runway ? A, What is that question ' Q. Was the arch in the store below made necessary by r changed to a runway ? The arch in the store below ? )f the stairs being A. I don't see that there would be any difference in the stairs and runway so far as weakening anything ; I should think there would be no difference. I don't know. That was all done before we had anything to do with that part of the building and therefore I don't know anything about that. Q. Did that runway make that arch necessary in your judgment? Objected to. rty* A. The arch below — !• I ■,) i' liiii ill 9M Q. You are contractor, are you not ? A. Yes, sir. I should think if it weakened the building, the arch would be necessary to support the building. Q. To support it, yes. Where did you generally get your money, what place? A. For our work ? Q. Yes, when he paid you l* A Well, sometimes he come up and paid us, once or twice — once at any rate, I could not say more than once ; and once 1 had to go down to his mill to get it. Q. Was Mr. Duck present when he paid you, a.i a rule ? A. I don't think .Mr. Duck ever saw him pay me a cent ; I don't have any recollection of Mr. Duck having been present. • . 10 Cross examination oy Mr. Bodwell. Q. I suppose Mr. Duck was present when you paid your men ? A. No, sir ; he was not Q. Now, then, when you commenced your contract, there was not time to finish it by the first of August ? A- Well, we would have had to put on many men and crowded it to do it, and the chances are that the plasterers would not have been out of our way. Q. So that in the ordinary way of construction, from the fourth of July until the first of August is not a sufficient time ? A. It could have been done. Q. If you would answer my questions, it ould save time. The question I asked you is this? The time between the fourth of July- -1 think that is the date of your contract — 20 and the first of August, in the ordimry way in which work is carried on, would not be sufficient time to do the finishing work on that building ? A. I doubt whether it could be done in that length of time or not. sir. Q. You remember when the Knights of Pythias took possession of their hall ? A. Yes Q. You remember their taking possession ? A. Yes, sir. Q. At that time all the finishing work was done, all except the little odds and ends? A. All the work was done up-stairs nearly, but the stair-spars were to put in and finish entirely at that time, Q The stair-spars were made at the shop, and .,. was only the labor of putting them HO in ; that was not a matter of very great length of time ? A. It takes time, but not any great length of time. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 141 III 2.8 III '= i'^ IIIIIM " illlltt r*. u >. I.I 1.25 1.4 12.5 12.0 LB 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 w- L'?/ CA M I I y tc pi VV( wl !»4 Q. And outside of the stair-spars you don't think of anything particular that h:id to be done after the Knights of Pythias took possession ? A, After the Knights of Pythias took possession ? Q. Yes, A. Well, the only delay after that that I know anything about particularly now, or can think anything about, was the elevator, Q, So that alter the Knights of Pythias took possession really the only material work to be done were those stair-spars and the elevator? A. No, there vas some work to be done on the stairway after that ; they were not completed. Q. What had to be done on the stairway ? A The rails were not entirely completed, Q, What do you mean by rails ? A. The stair .nils and bailusters. 10 Q, A man would do that iii a day, wouldn't he ? A. No, sir. O. How long would it take to put those up — all that had to be done then? A. I think the men went around there several days fo- that. Q One man, perhaps ; but if you had put on all the men you could work oti that, how long would it have taken to put up those stair-rails? A, As I toltl you, wc 1 nd off the men — Q. But as .1 matter of fact, as a carpenter and builder, 1 ask you, a.li that had to be done to those stores at the time the Knights of Pythi.as took possession would not have been the work of over a couple of days? A. Yes, it would have been more than that for one man. . 20 Q. But four men to work on it? '- The Court : Q. One day for two men I suppose ? A. Well, yes. Q, Half a day for four men? A. Yes. Q. Now, of course you had to build the elevator? A, Yes, sir, Q. And there was no great hurry about your finishing the rest of the work as long as you had that elevator on your hnnds ? A. We had plenty of other work we were wanting to do. Q, You couldnt get your certificate from Mr, Whiteway until the elevator was up? A, No, sir, Q, You knew you had to do the elevator. Of course you said you didn't need any .j.i plans ; but as a matter of fact you heard Mr Martin when he was examined saj- that he went to Mr. Whiteway .several times for plans and couldn't get them ? A. 1 don t know what Mr. Martin said. 95 Q. Were not you there when Mr. Martin was cxamiied down stairs last summer? A. I think f was. O. Don't you remember his saying that? A. No. Q. As a tnatter of fact, don't you l(j Q. Are you one of the men mentioned in the contract for the finishing work in the agreement? A. Yes, sir, Q. Were you working on the Duck Block then ? A. Yes, sir Q. Were you delayed in your work ? A. Yes, sir. Q. For how long do you think ? A. Weil that would be hard to tell how long, it was all through the job. Q. All through the job. A. You might say all through, Q. What delayed you ? A. For he want of certain materials Q. Did you apply tc Mr. Adams for it? A, Ye.s, sir. Q, For material ? A Yes. 10 Q. Could you give me any idea of the time how long you were delayed ? A. I couldn t hardly tell the time it would amount to ; we couldn't hardly finish any- thing as we went along ; we had to go over and over the work so much in.stead of finishing as we went. That is what took up the time. It is hard to give it ; it is considerable. Q. Did you do any work on the elevator? A. Yes, sir ; we done all of it, Q, Did you require any plan? yourself to construct that elevator? A. No, 1 got — they fetched the shaft over nnd ihe castings and I didn't need anything Q. Did you ever hear Mr. Adams complain to you that he had been delayed bec.^use he didn't have the plans for the elevator ? A. Yes. Q. But you was the min that was constructing that? A. Yes, sir. 20 Q. Did you ever have any plans for that? A. No, sir. Q, Did you need any? A. No. Q, Did you ask the architect for any ? A. No, sir, I never did. Q. Did you ever go down to the mill, and Mr. Martin ? A. Yes, sir, many a time. Q. Who did you get your instructions from to do the work ? A. Mr. Adams. Q. Mr, Adams ? A. The instructions. Mr. Whiteway, I suppose. Q. Was Mr. Adams on the premises every day? A. Not every day. Q. How often ? ^ *3t IK tv SC lit ag yo ho A. pre «7 A. The first two or three weeks he was there pretty regularly, but afterwards he w.'s not often there, that is once — some weeks he 'vas there once and some weeks he was tliere two or three times ; but the first two or three weeks he wa there pretty regularly ; he got so he didn't seem to care whether the work went along or not. Q. Who was looking after the work for him in his absence, do you know ? A. Mr. Adams? Q. Yes. A. In his absence — 1 don't know. Q. Who was looking after it, any one? A. After the work there ? Q, Yes, when he was away. A. 1 was loolving after it myself all the time. Q. Looking after your work ? A. Yes. HI Mr. Bodwell : I object to this ; it is not evidence. Q. So that you were allowed to go along and get your material, and do just as you liked ; and got your material just when you could. The Court : He is a sub-contractor. Cross-Examination by Mr. Bodwell. Q. You did ask for plans ? A I don't remember, we might have. Q. You remember you bwore you did ? A 1 don't know, that has been some time ago, r might have sworn to it, I might have asked for it. Q. As a matter of fact you might have asked for plans? A. I don't know whether I did or not. -Ji) Q. You remembered it then, did you ? A. That has been some time since. Q, You won't deny that you did ? A. I wouldn't swear that I did. Q. As a matter of fact you did have to have some kind of a plan to work by, didn't you ? A. Not after I got the castings thtre, that is the shaft nnd cog-wheels, 1 saw then how it went without any plans. Q, Now, then, Mr, White^vay was there while the elevator was being completed ? A. Yes. Q. Inspecting the work ? A. Yes- Q. And he took it over from you and gave you a certificate that all your work was properly done. A. Yes, he gave a certificate, I believe. •"><> Mr, Mills : Q. In writing. A. Yes. i i li ■■■M 98 Q. I will ask you to produce it. A. Mr. Hutch! ns had that, and I suppo.se he took it with him. Q. It has gone away has it ? A I suppose it went ; I have never seen it since it went. Q. As a matter of fact you could :'t get paid from Mr. Adams until you ^ot that cer- tificate ? A. I suppose not Q. Mr. Hutchins did the finishing part of the work, too, did he ? A. Yes, he and Mr. Wellman, he done it mostly. Q HoweVer, you know Mr. Whiteway was satisfied whith your work on the elevator ? A Yes, .Sir, 10 Q. He gave you some directions about the elevator while it was being put up ? A. Nothing more than the weight, I 1-elicve ; I proposed that myself, and he sanctioned it. There ought to be a weight on it ; I told him I never saw an elevator for hoisting go up without a weight, Q. You suggested a weight, and he adopted your suggestion, and he got a weight and you put it in ? A. He thought there ought to be one ; that is the way I remember. Witness excused. JAMES MUNROE MILLER being called on behalf of the defendant, and sworn, testified as follows : Direct Examination by Mr. Mills. -JO Q. What is your name. A. James Munroe Miller. Q. 1 believe you occupy a printing office in Mr. Duck's block ? A Yes, the old part. Q. Do you ? I say. A. I occupied premises in both the old and new Q. But at the time these men were at work — Mr, Adams was at work — before the new building, you was in the old building, were you ? A. I was. Q. You heard the evidence of Mr. Adams yesterday ? A. I heard it, a portion of it ; I couldn't stay here and hear it all. Q. Did you delay him ? A. I did not ; on the contrary, I did everything to facili- tate and expedite his work. Q. Did he ever complain to you that you delayed him ? 80 90 A He and I never had — well, if we had any conversation at all it was a very trivial nature ; we never had much to say about it. Q. Did he ever ask you to remove your machinery, or any of his men ? A. 1 don't believe — I will tell you about that as near as I cav I think that Mr, Corbett ,it one time came to me, it was somewhere near Thursday or Friday, it was late in the week Q. What month ' A. That I couldn't tell yen anything about. And, by the w.y, there is one way that I can arrive at dates in f^ ' matt-*-. The manner i-i wi'ich they turned the room over to me to occupy resultt m an accido^i to me which nearly cost me my life ; now, |it this is the way I can fix uatc-i, and I'.i:. is the way only. Several friends called on me in my afflictic is, and I regaled V m with cherries Now, if you know when cherries were ripe last year, that is about t'l.e tinitj. Q. It depends upon whether tiioy were e.T-'y or late? A. Well, call these early cherries ; in some places that would be about May. Q, You cannot fix the date ? A. No, 1 cannot. Q. Did he ever complain to you that you were causing him delay? A. Not that I know of Q. Or request you to remove your machinery ? A. No. Q. And when he did request you to do anything, did you comply with it at once? •}() A. How do you mean ? Q. Did he never request you to remove any of your machinery ? A. He never came to me and requested me to move my machinery ; ho may have said to mr- . '• Here, we are ready." Q. Well, what did you do when he said that? A. I said, " We will do jo on a Sunday." Q, Did you delay him ? A. I did not delay him. Q, How many days would it be after that ? A Possibly three days ; not to exceed that. Q, And he did not complain to you about delay at all ? A. Not at all. ;U) Cross-examination by Mr. Hodwell. • * Q. Now, Mr. Miller, do you remember the time they were ready to tear down the old building and begin work ? A. Yes, sir. ' 5 1(10 Q, Now, were you ready to have them do it? A. May it please you, 1 was never ready to have that building touched, Q. As a matter of fact, didn't you refuse to allow that buildin^j to be touched at the time they were ready to do it? A. Allow me to ask you, Mr. Bodwcll, what portion you ask about? » The Court : Answer the question. O. I would like to have an answer, because I think you understand perfectly well. A. I do not Q. Do you remember the time, or the occasion — I do not ask you the date — but do you remember the occasion when Mr. Corbett, Mr. Adams' foreman, was ready to go on 10 with the tearing down of the old building, where your printing mrichitiery was, as 1 under- stand it? — the old building, at any rate, occupied by you? A. Now, if you will allow me, I will tell you about it. The Court : Answer the question as short and plainly as poss.uie. A. No. " Q, You do not remember the occasion ? A. No. Q. Do you remember refusing to allow them to do it? A. 1 do That is conflicting Q. You do remember refusing to allow them to do it? A, I do. Q. And when you refused, the work was not done? A. I couldn't answer your question. "iO Q, Well. You refused ; did they pull it down then, or didn't they? That is simple, you understand that. A, The building was made in sections ; you had the plans here a while ago. The Court : Answer the questions, Mr, Miller. A. The building was made in sections — The Court ; Answer the question at once. The witness : I cannot answer those questions, because it might result in incrimi- nating me ; it will make me say yes and no to the same answer. The Court : No, it won't ; you can answer the question. The witness : Yes, it will sir. jj(f The Court : Do you remember refusing to allow them to remove the building ? 'm t in' 101 A. If you will say " Do you remember refusing to allow them to remove a portion of the building," I can answer. The Court : It is only a portion of the building that is in question. O. Any portion of the building they wished to tear down, and you refused to allow them to tear it down ? A. 1 do, yes. Q. And they did not tear it down while you refused ? A. They did not, Q. What relationship is there between you and Mr Duck ? A. Mr. Duck is my step-father, Q. And you are his tenant ? A. I am his tenant. Q. And was then ? A. And was then. \() Q. And you knew of tliis proposition to put up a new building there ? A. 1 did. Q. And an arrangement was made, I suppose, between you and him that it w;ts to be done around the old building p.nd the old building torn down? A. It was imderstood that way. Q. Yes ; and he arranged with you before he let the contract that you would permit that to be done? A. I beg your pardon ? Q. Before he let the contract to Mr. Grant, he had arranged with you that you would permit them to build around the l)uilding according to the specifications ? A. Before the arrangement was entered into at all, before contracts were called for, he had mentioned the thing to me ; and it was understood that my business was to be inter- ■)() fered with as little as possible; nothing was to be done to materially interfere with my business. Q. 1 understand you to say it was arranged that the contractor was to be allowed to carry on his work around your building ? A. I can only give you the answer I did just now, that I was not to be i iterfered with any more than was necessar)-. Re-examination by Mr. MilLs. Q. When did Mr. Adams have possession of your printing office, do you remember? A. From the very beginning. ' » Q. From the very beginning? A. From the very beginniig. Q. Now, you were speaking about a refusal just now. Refusing what? A. Well, . '50 you sec the building was made there like in two portions. Q. Just take this plan. A. I can show you right here with my pencil. I will just show you with a pencil right here. h)-2 T Q. All right. Q. That building was made like this (indicating) ; I can only give you the front view of it — or the end of it. (Drawing.) There. Now, when the new building was erected, the sleepers on which the present floor is laid went right through there (indicating.) Hero was my press room, not my printing office at all, my press room. There was my binder (indicating.) Now, in the beginning they took possession of the whole shop ; this wail they cut away about four feet, moved the wall back, and left it in such a condition that we had to go and paper it all up to make it tenant.ible. And then when they came to this portion — I raised no objection to anything they did in any part of the building ; but when they came to this — it wis only a piece about 20 to 30 feet long — they wanted to 10 take the top off, and it would have exposed my whole press room to the inclemencies of the season. Now there was plenty of work for them to do back of that building. I objected to that being taken off, that pa. ticular place, until such time as they could fix it so that I could move up Now then, they did go t~> work afterwards and fixed that thing, and then moved it up. And when they were ready to move, and I did move for them, 1 moved, your Lordship, before they had the floor down; I did not have 30 feet of flooring on which to place all my machinery ; and in some places even the shiplap wasn't down, so that it was dangerous for a man to walk about. I did everything I could to help them through. Went to the Albion Iron Works and secured all material and then secured labourers from the Iron Works Company to raise the machinery. I could not induce jo them to lay all the flooring up ; they laid about 20 of 30 feet of flooring, and would lay no more. Q. But notwithstanding that, you complied with everything ? A 1 did Q. How long did it take to move ? A. I think I was engaged in moving about two days, when I met with the accident and had to go home, and was confined to bed for three weeks. .Sir. Q. They did not complain to you that they had been delayed by you ? A No, Mr. Bodwell . Q. How long did the moving last ? A. I couldn't tell you: I was about two days, and then I had to go home. Pos-;>(, sibly it was eight or nine days. Mr. Bodwell: Q. And your moving took place some time after the time when you refused ? A. Some time after. Q. Yes. A. Some time after, you say, Mr. Bodwell ? Mind you, inside of a week. Witness excused. m ■Mm u lO.H ELI BEAM being'called on behalf of defendant, and sworn, testified as follows : Direct Examination by Mr. Mills. Q. What is your name, Mr. Beam ? A. Eli Beam. Q. What is your occupation? A. Contractor and builder. Q. Have you been in the business any length of time ? A. About ten years. Q Do you know what a hoist or elevator is ? Yes, Sir. Q. Did you ever require plans from the architect for the construction of one ? A. I have never seen plans made by the architects for hoists or elevators, Q. What ? A. I have never seen architects here make plans for a hoist or elevator. Q. If you had to put in a hoist or elevator (reading specifications as to elevator) lU what would you do, under those circumstances ? A Why I should buy an elevator already made, and put it in. Q. What? A. I should buy an elevator m.ide by some reliable manufacturer and put it in ? As a rule, they furnish details with any machinery of this nature, the manufacturer furnishes details — to put up a machine of that kind. Q. Yes. A. Q. You would send to some man bacl< east ? A. I would send to some man back east, or have it made here. Q. Or have it made here, The architect, in this case, F believe, in.structed an-'' ordinary hoist or elevator. No difficulty in constructing that? A. No. The Court : They are made out of one pattern ? A. No, there are lots of different makes of them. Architects sometimes specify what make of elevator should be used. Cross-Examination by Mr. Bodwell. Q. Are there any made in the city of Victoria ? Is there any manufacturer of elevators here that has any special pattern ? A. There is no manuf?.cturer of elevators here that makes it a business, that I know of. Q. How would you get an elevator manufactured here ? A. I have never had one manufactured here. ' ^0 104 Q. You don't know what would have to be done if the elevator had to be manufac- tured here in Victoria ? A. No. Q. It has not come within your experience. A F beg your pardon ? Q. That particular matter has not come within your experience ? A. I never had one manufactured in Victoria. Q. How long have you been here ? A About four years. Q. How long have you been contracting here ? A. About that same length of time. Q. You have never put in any elevators here, then ? A. I have never put in any elevators in Victoria. Re-Examination by Mr. Mills. 10 Q. There is nothing very special about the construction of an elevator or hoist, is there ? A No, Sir, nothing special. I have figured on lots of jobs that had the elevators in, and specified a certain make of elevator to go in, Witness excused. Mr. Mills : I understood your Lordship ye.sterday to rule out the defective work, because we were bound by that statement ? The Court : You are bound by the statement of the architect , that is all the defec- tive work there is, as the architect specified it. SIMEON DUCK, the defendant, being called on his own behalf, and sworn, testified -^0 as follows : Direct examination by Mr. Mills. Q. What is your name, Mr. Duck ? A. Shneon Duck. Q. You are the defendant in this action ? A. Yes. Q. And the contract, the subject-matter of this action, was made between you and Mr. Grant, and then afterwards assigned to Mr. D. F. Adams ? A. Yes. Q. You heard Mr. Adams go into the box and refer to certain work additional, or extra work ? A. Yes, sir. Q. Now, did you give any orders for any extra or additional work ? A. No. Q. You did not ? A I did not. 30 f ^:lll:' ifi: 105 Q. You heard what he said about the extra or additional work about the trusses, and about the arch ? A. Yes. Q. Were you present at any conversations between him and the architect about these matters ? A. No, I cannot say that I was. Q. Would you just state in your words to his Lordship your explanation of what you understood about the things thnt were done ; those tru.sscs and the arches ? A. Well, the only thing I understood with regard to tho.se was this, that they were put in in order to make the building what it should be ; that they were never intended as extras ; there was no claim put in as extras, no price agreed upon, and I never supposed they were extras ; if they were, I should certainly have had an agreement, the same as I 10 had with that runway, a written agreement in accordance with the contract. Q. The only extras was that $30? A. That is nil. Q. Did he ever make any claim in writing on you ? A. What for? — extras? Q. Yes. A. No. Q. Or for addtional work ? A. No; never at all ; never did, I believe, until after this suit was commenced, that is the first suit, the first suit that he entered in the Supremo Court against me, he withdrew that. A. Yes. You see that account there (handed to witness). When did you get that, do you know? Or did you get it ? A. It appears to have no date. I am not certain whether that is the account I got from Mr. Whiteway or not. I presume likely it is ; it •_'(» is something similar. Q. You heard Mr. Bodwell state in court yesterday that you were a party to getting Mr. Whiteway away — words to that effect ? A. Yes. Mr. Bodwell : I did not say anything of the kind. A, I understood that he said I hurried Mr. Whiteway away. Q. Did you have anything to do with Mr. Whiteway going away? A. I did not. Q. Did you try to keep him here ? A. Well, I tried to keep him here after the first of August, he vas very anxious to get away from that time because they were continually writing to him from St, Johns ; they had had a large fire there, and a good deal of building going on, and he was getting ;-{() letters continually to go on that they wanted him there. Q. Did you have any conversation with Mr. Adams about the delay ? A. In the work? lOfl Q. Yes, In building the building? A Certainly, lots of times Q. What was his answer ? A. Well, his answer wns that he was doing the best he could. Q. Did he ever complain to you that he had been delayed by Mr. Miller, or ai y other person ? A. No, , Q. He never did ? A. Except with regard to the elevator ; he claimed that they were delayed on that for the want of plans. Q. What did you reply? A. Well, I replied that Mr. Whiteway did not consider it necessary ; that he was the architect. Q. You know that document that was put in evidence, called a statement n{ account 10 by Mr. Whiteway ? A. Yes. Q Did Mr. Adams ever present that to you ? A. Never. Q. You heard him swear thnt he did yesterday ? ' .. A. Well, I could not say positively whether he swore that he presented mc with that or whether it was the si.xth certificate that he had reference to ; but he never presented me with that. O. He never presented you with that document ? A. No, never. O. Did you hear him say in his evideiicc yesterday that you and Mr. Whiteway and he went down and consulted and arranged about those items something to this effect : the three of you went down and made up that account ? A. And to accept the building ; yes. l'<> Q. Did you do anything of the kind ? A. I did not. Q. You did not? A. I did not. I had frequent conversation-; with Mr. Adams about the doors, but never had any agreement with him, or any understanding with him with regard to them at all. The Court : Q. About what? A. About the doors and the unfinished work. I understood Mr. Adanis to say yes terday that he and I and Mr. Whiteway had gone around the building inspecting it, and that we accepted it as it was. That never took place. Q. Never took place? A. Never took place. Q. Did your irchitect ever tell you he had accepted the building? A, Never. ^^0 Q. Did he tell you the reverse? A. Well, he told me that he could not give a cer- tificate. Q. Told you he could not give him a final certificate? A. Yes. 107 Q. Until when? Until he had completed it? A. Until he had completed the work, I fancy, yes. He said the work wps not completed ; he knew it was not. Q, I understood Mr. Adams to say that you were generally present > -hen he paid the men, A. I never saw him pay a man ; not one. I have seen — he had -x little house erected within the large one Q. Yes. A. I have seen Mr. Adams and his son in there of a Saturday evening, apparently with the men around ; I suppose that he was paying the men ; but 1 did not know who he paid ; I saw him pay no man. Q. Did he ever furnish you with evidence that there were no liens on the building? 10 A. Never. Q. You demanded that, did you not? A. Yes. Q. You heard that letter that I wrote to him, read in Court yesterday, did you ? Do you remember that letter written by your instructions ? A. Dated on the 2 ist ? Q. 2 1 St of October, I thi'.i< ? A. Yes Q. Now, by reason of his not completing the building on the ist of August, have you suffered any damage ? A- I have, a very serious one. Q. Tell his Lordship please. Mr. Bodwell : It is liquidated damages, if it is anything. The Court: You (the defendant] made your contract, and cannot get liquidated •_>() damages unless you give notice of it. You have not sued for anything except liquidated damages. Mr. Mills : I submit it is liquidated damages. But there is no necessity for us to go into that, if that is your Lordship's opinion. Q. As a matter of fact, you lost several tenants? The Court : Mr. .Mills, I rule you cannot go into that Q. Is there anything else yon want to say, Mr. Duck ? A. I understood Mr. Adams to say yesterday, in his evidence, that 1 refused to pay him a certificate which he had presented to me. Q. The $1,5 30? A. Well, I suppose it was that ; I could hardly tell whether it w.-^s that or this other statement which he claimed was a certificate. I never refused to pay Mi. Adams a cer- m lOM U.M 10 tificate that was presented to me ; never. He presented me -I wish to explain to your Lordship the whole matter in connection with that sixth certificate. The Court : It would be useless to do that ; I am not Q. You never saw that memorandum of Mr. Whiteway's showing the statement of account ? A. Oh, yes, I saw it. Q. When ? A. Mr. Wniteway gave it to me. Q. He gave you a similar copy ? A. Yes. Q. When ? A. Before he went away. Q. What did he tell you about it? A. I don't know that he told me anything ; I looked at it as a sort of statement, and nothing more. Q. Didn't you have any conversation with him on the subject ? A. I can't say that I did. Q. Not a word? A. Not to my knowledge ; he might have lold me there was a;{() statement, or how the account '.vil'; stand when the work is completed and the deductions made for unfinished work made. I >*! lU Q. Didn't he show you the deductions for unfinished work ? A. Partly. Q. Partly ; didn't you have a copy of this document of the 19th of October, showing: you unfinished work to the extent of %7'j ? A. I did, Q. Did you raise any objection to thnt ? A. No, I did not ; but I say this, that it don't go far enough O. Well, but did you raise any objection to Mr. \^'hiteway about it? A. Certainly I did. Q. Where and in what manner ? A. I called his attention to the back vents not being put in, and the spring tops not put in, which I paid I think $22 for ; and then there was the ashpits, that is the ash — that '" was not properly done ; I called 'lis attention to that. ( called his attention, too, to the roof, where there was — there is a pond there now 30 feet long and three or four feet wide, and about an inch and a half deep, in consequence of the work not being properly done. Q. You called his attention to all those matters ? A. Yes. Q. And notwithstanding that, he still relied upon this list he gave you, .:nd did not make any alterations? A. I suppose, not to that ; I suppose he would on the next cer- tificate, probably ; that is the way I understand it. I did not regard thnt as a certificate ; and I do not think he did. Q. yovwithstanding all these objections he did not make any alteration in his certifi- cate? A. No, I do not say ihat, my Lord, 1 say he did not make any alteration in his oo statement, Q. In this certificate ■* A. I don't think it was. , Q. This certificate of the 19th of Oct(>ber is signed by Mr. \\ hiteway ; and lie states the above amount is to be deducted from ihe contract price, Notvithstaiiding that, he did not make any alteration in t'.iat ? A. I don't know what tha'. is, ipy I ord. Q. Read that, (Document handed to witness.) Mr. Mills : That is what we call the statement. Q, He did not make any alteration from that? A. No, he made no alteration in that Re-Examination by Mr. Mills. Q. You did not: 'jonsidcr that was a final certificate ? A. No, Sir. Q, And he uid not consider it so ? A.I don't think so. Q, He did not act upon it as such ? A. No, Sir. ;{0 H 115 The Court : That is a (juestion of law. Q. Nc this : was commenced cannot remember the date. on the 22nd of February, I believe ? A. 1 Q. Do you remember the suit brought by Adams against you for the mechanic's lien ? A. Yes, Sir. » Q. That was decided in your favor, was it not? The Court : That does not arise out of the cross-examination at all. Mr. Mills : It is to explain that letter. The Court : Is the letter in evidence ? Mr. Mills : No, the letter is not in evidence yet, 10 The Court : You cannot examine on it unless it is in evidence. Mr. Mills : Mr. Bodwell examined on it ; we have not got it. Q. Mr. Grant had possession on the ist of April ? A. Yes, and long before. The Court : That does not arise, either. WILLIAM RIDGEWAY WILSON, being called on behalf of defendant, and sworn, testified as follows : Direct Examination by Mr. Mills. Q. What is your name ? A. William Ridgeway Wilson. Q. What is your occupation ? A, Architect. Q. Look at page 34 of those specifications. Have you had much to do with eleva- .j() tors? A. Not a great deal. Q. Do you supply the plans or detail drawings for elevators or hoists ? A. No, Sir 1 don't think I ever did such c thing in my life. Q. Look at that specification there (indicating.) (Witness looks at same.) A. Yes. Q. Would you consider any plans necessary ? The Court : It is stated here that it is shown on the drawings. Q. Mr. Mills : That is only the hole, my Lord, whete the elevator is to be. The Court : It does not say so ; but it is to De constructed as shown on the drawings. Produce the drawings and see whether they show that. ■ i : i ; 116 Mr. Mills : We have not got them. Q. If the architect said, an ordinary elevator or hoist Objected to. Sustained. Q. Do you supply the drawings youroelf? A. Or?,, Elevators? Q. Yes. A. I never did that. Cross-Examination by Mr. Bodwell. Q. You always supply detail drawings to everything that is shown on the plans ? A. Not to everything that is shown on the plan, but only what the architect thinks i required as to any part of the plan. Q. But in that case it is the architect's duty to supply it? A. It is not with regard 10 to elevators. I would like to mnke this explanation. Q. What kind of an elevator would you build on that ? A. It is hard to say. Q. Unless you had detail drawings you could not tell ? A. But this specification may mean Q. You cannot tell what it does mean unless you had the detail drawing? A. No, you cannot tell much about it. Re-Examination by Mr. Mills. Q. Could the contractor construct one under that? Does it cali for anything special, now? A, No. Q. What would you understand, an ordinary or special one ? 20 Objected to as leading. A. What is the question ? Q. What would you understand would satisfy that specification ? A. Well, the ordinary understanding, I think, would be that the contractor was to supply an elevator to lift two tons. The Court: Q. Without details as to size, or anything else? A. Certainly, so long as it lifted two tons, Mr. Bodwell : Q. Did you ever draw any specification like that ? 8n|S 117 A. I certainly do not write them in that way myself ; I certainly specify a certain maker, to lift such and such a weight. Mr. Bodwell . Q. Suppose you were foolish enough to draw such a specification as that, wouldn't you supply a plan with it or a drawing ? Mr. Mills : This does not arise out of my questions. The witness : I certainly don't know what I would do under this specification. Mr. Mills : Q. If the architect pointed one out to the man, and said, " Here is one like that"; do you think that would be sufficient? A. I should think so, yes ; if he told him to make one like that. Q. If he told him to make one like that ; so long as it lifted two tons? A. Yes. 10 Witness stands aside. Court adjourned until 12 M. to-morrow. Wednesday, i8th October, 1893, 12 M. Court met pi -suant to adjournment. By agreement ol ^ ^rties, defendant is credited with $20 paid for water, Mr. Bodwell : Before you proceed with the commission, I would like to ask Mr. Duck one question on a date. Mr. DUCK recalled . Mr. Bodwell : Q. In your examination, Mr Duck, you said the date when the Knights of Pythias took possession was the 31st of August That is the date, wasn't it? 20 A, 31st of August. I think it was. Q. 1892? A. Yes. Mr. Mills : There is just one question I wanted to ask. Q. With regard to the guarantee for the roof ; did you ever waive it or say that it was illegal, as Mr. Adams said ? A. No. Q. You required it. did you ? A. Yes, Sir. Mr. Bodwell : Q. When you say required it, did you ever ask for it ? A. The con- tract asked for it. Q. You never asked for it outside of the contract ? A. Yes, I did ; I think it is in my reply. 30 . 118 Q. I know ; but before the action ? A. No, I cannot say that I did Mr. Mills : Didn't you require it in the County Court, which sat a long time before the action ? A. Yes. The Court-: Q. Mr. Duck, did you have a certificate from the architect as to the completion of the roof ? A. No. The Court : Q. Was there a certificate given ? Mr. Bodwell ; That was a certificate given to the sub-contractor. The Witness : I never had any certificates from Mr. Whiteway saying that anything was done properly. The Court: When was that certificate paid ? 10 Mr. Adams : Previous to the 9th of October. • Mr. Mills : No, that is not quite right. The Court ; It was paid in October? Mr. Adams : Yes ; it was paid the day that Mr. Whiteway went away. Mr. Bodwell : Mr Adams spoke about that in his evdence ; thnt Mr. Whiteway and Mr. Cooley came down to him, and he paid it then. Mr. Adams : He did not pay it at that time. He sued me. The Court : (To Mr Adams.) When was the roof finished ? Mr. Adams : It was finished in September some time ; I could not tell you the exact date, but it must have been along pretty near the first of October. 2(1 Mr. Duck : There was never any guarantee given to me according to the contract ; 1 never had it ; and I never waived my right to it, either. THOMAS TREVER HULL, being called on behalf of defendant, and sworn, testified a.« follows : Direct examination by Mr. Mills. Q. What is your name ? A. Thomas Trever Hull. Q. What is your occupation ? A. I was book-keeper to Munroe Miller at the time this building was going on, Q. You heard Mr. Adams, did you not, complainof delay in the removal of machinery in the printing office ? A. Yes, sir. 80 no A. Tell his Lordship in your own words whether there was any delay, from your standpoint. A. As far as I am aware, 1 never heard of any delay ; we put up the machinery just as soon as there was floor enough to put it up ; and for a long time after we put the machinery up we had to walk across the joists before the other floor was up. Q. Did he ever complain to you about delay ? A. 1 never heard of any delay on our part. Cross-examir.ation by Mr. Hodwell. Q. You are speaking of the machinery, the moving of the machinery ? A. Yes, sir. Q. You had nothing to do with that practically, it was out of your jurisdiction ? jo A- Yes, but I was interested in it Q. You were speaking of the moving of the machinery? A. 1 was asked by Mr. Mills if I heard of any delay. Q. You were asked about the delay in the moving of the machinery ? A. E.xactly. Q. Mr. Miller has said there was a time in which he refused to let them tear down the old building. Do you know anything about that? A. Mr. Miller objected to the roof being taken oflf. Q. There was a time that he did that? A. Yes, sir, objected to the roof being t?ken off, to subject the machinery — Mr. Mills : Q. Why did he object to thrt ? A. He objected to the roof being taken 20 off and the machinery being left open to the weather. Q. Was there any delay caused the ' A, Not hat I am aware of Mr. Bodwell : Q. You won't say there was no. A. No, I won't say that. Witness stands aside. Mr. Mills read in evidence the testimony of W. J. Whiteway, taken on commission. Defendant's case closed. Counsel proceeded to sum up. i hereby certify the foregoing to be a true and accurate report ofthcsrid proceedings. JUSTIN GILBERT, Oflficial Stenographer. 'M) 120 JUDGMENT, DRAKE, J. Victoria, Wed. i8th Oct , 1893. Messrs, Hodweii and Helmcken appearing on behalf of plaintiff; Mr Mills appearing on behalf of defendant. At the close of the argument, the court gave the following JUDGMENT: His Lordship : Now, this is an nction in which the plaintiff claims balance due on a con- tract which contract amounted originally to $17,400, of which sum he had receivod $13,080, of which sum $30 was for some extra ordered (I may say that th*^ evidence as to what that extra was is a little incomr'cte) the balance being $4,369. As regards that sum of $349, I 10 cannot allow that under tliese clauses in the contract — it is clauses two and three, I think — If the work is not sufficiently detailed or explained, the contractor shall apply to the nrchitect for such further drawings or explanations as may be necessary, and shall conform to the same as part of this contract as far as they may be consistent with the original drawings, .ind in event of any dcubt or question arisinj^ respecting the true meaning of the drawings or specifications, reference shall be made to the architect, whose decision thereon shall be final. Should any alterations — alter-^tions may also include additions — be required in the work shown or described by the drawings or specifications, a fair und reasonable valuation of the work shall be made by the architect, and the sum hcein agreed to be paid for the work according to the original specification shall be increased or diminished as the case •_>() may be. Then, in case thnt valuation is not satisf;'ctory, there is a bargain with the con- tractor to refer to an arbitration. And, under clause 9 — The contractor shall make no claim for additional work unlets the same shall be dorc in pursuance of an order frf m the architect, and notice of all claims shall le made to the architect in writing within ten days of the beginning of such work. It is not necessary that an order from the architect shall be in writing under that clause, but if tlic architect gives an order for anything, additional work or extra work, the contractor has undoubtedly, in writing, to make his special claim for that work, within ten days from the beginning of that work. It is a precaution for the contractor, it is also a precaution for the architect. Now, it appears that Mr. Adams stated that he entered into this contract without ever reading it. He is not the less bound jjo by the terms of the contract, whether he rend it or whether he did not. He signed it, he has undertaken the works that are therein specified, including the specifications, and he is bound by that contract. He appears to have done, I won't say considerable pmount of rt'ork. because all these e.xtras only amount to n^out $400 a'l together, in a Inrge contract, but he did not make any claim whatever with respect to them. And, therefore, as regards any work, in my opinion, that comes under the terms of the plans and specifications, with regard to that work he is not allowed to make any claim therefor. Going through the various items which he docs claim, there is these items which I have mentioned before which I think are not part of the contract but are special work that was done at Mr, 1L>1 Duck's request, and I think that Mr. Adams should be allowed for the expense, which amounts in all to $38.35. I will allow nothing further on the claim for extras. Now, by the counter-claim, Mr. Duck claims that certain work has not been done or has been imperfectly done with respect to the whole of that contract, but which really amounts only to a sum of $200, when you deduct the $100 paid for the mantel which it Is admitted Mr. Duck has got to pay, and when you omit the %77 which the architect has certified for unfinished work — there really is only p trifle of $200, which seems to mc a very small sum in the large amount ot thi.= contract — $20 for water, $100 for mantel, and there is %yy certified to by the architect, all to be allowed on the counter-claim. In addition to that, Mr. Duck claims liquidated damages for 87 days, $870. Now, 10 as I have already pointed out, there are in the contract two separate and distinct clauses upon delay. There is section six, which I think impliedly gives to the contractor a right to deduct from the total amount of days delay after the completion of the work such a period as he was not put in possession of the premises and the plans of the building I ar- nished to him. That is one clause in respect to delay ; and the other clause is, as I have already stated, in paragraph seven, if delayed by alterations which may be required, strikes — it implies strikes — fire or unusual action of the elements, no claim shall be allowed the contractor for delay unless a claim is presented in writing at the time and allowed by the architect. To deal with the first portion of the delay, there is no doubt it is a fact — I con- sider it from the evidence that has been adduced on both sides — that there was a delay 'Jo with reference to the removal of the printing office. Mr. Adams says that he was delayed three weeks in consequence of Mr Miller, after the work was all ready to take down that part of the old building, not being in a position to move. Mr. Miller admits that there was a delay, and he snys it certainly was not more than ten day.s. Well, to my mind, the delay was not such an absolute delay as prevented the work going on on the rest of the building ; but they could not use the same number of men to advantage ; and. under the circumstances, I think I shall be meeting the justice of the case if I place that delay at just one-half of the amount which Mr. Adams claims, fifteen days. I think I shall deduct that fifteen days from the total delay which has been claimed by Mr. Duck — fifteen days from the 87 days. With regard to the remainder of the delay claimed, it has been strongly ;j() urged that they wanted the plans for the hoist, and there was delay there caused by the architect, and this practically was the main cause of delay, because the specifications could not some of them be gotten at the time delivery was to je completed of the contract. But the terms of the contract are that any delay should be certified by the architect, and un- doubtedly application should be made to the architect to certify for a certain amount of delay. Because if Mr. Adams had done so and he was dissa'. :fied with the award of the architect with regard to the amount of delay which had occurred, he had the right to ap- peal to arbitration to settle the amount of delay. It is not to be supposed that he knew of .that clause in the contract, but he is bound by it ; he ought to have presented his cause of delay to the architect, for if the evidence is true as with regard to that hoist, there was a4() delay there. But he has not taken the necessary steps under the contract in order to establish his rights now to claim a deduction in that account. The first thing he must do is to give notice. He has not given notice. Then Mr. Adams in 122 his evidence has complained of the delay that occurred by the finishing carpenters, and he alleges that they did not get on with their work, they did not get their material, that there was no delay on his part in supplying material, but they did not get on with their work, and that was the cause of considerable delay. Hut they were sub-contractors, and there is the written contract put in between himself and those sub-contractors, and undoubtedly he is responsible for any delay that took place there. And I think Mr. Duck is justified, under the circumstances, in claiming 72 days. For I do not think that until the keys were handed over Mr. Duck was in . possession. So I shall allow Mr. Duck on the counter claim $720 for the delay. I shall allow him ^yy for the amount of unfinished work, and $100 for the m-^ntel, and $20 for 10 water. Now, with regard to the question of the certificate, whether that is a final certificate or not. I must say that dealing with that question of the certificate it is a very imperfect document at the best. But there are three documents, practically, which arc put in here ; there are two documents here which pre marked " B" and " D," those hn.ve no date upon them • they are both documents that refer to certain work-^ unfinished in connection with the Duck Building. I conclude that they were memoranda that had to be done, and were delivered by Mr. VVhiteway some time before the 13th of October, when he gives to Mr. Adams a document stating work to be done on Mr. Duck's building. He says, "Brick work. Beam filling on wall in alley ; ventilating grates to be put in rear wall ; chimney thimbles 20 to be properly set ; building to be cleaned out ; ash-chute doors to be furnished and fr.imes secured " The question of beam filling appears to me to be looked upon by Mr. White- way — referring to the argument that Mr Bodwell has addressed to that item 16 — it seems to me that is treated by Mr. Whiteway as entirely outside of the contract. Then on Oc- tober the 19th he gives another memorandum. The two memos do not quite agree, because there are some items in this memo, of the 19th of October that are not included at all in the items of the 1 3th of October ; so that the reasonable result is that the various items in- eluded in the document of the 1 3th of October were finished by Mr. Adams before the 19th. Well, then, on the 19th he gives a memo of the work that is to be done, and values it up ; he values it at $77. And at the foot of it he .says, "The above amount is MO to be deducted from the contract pric •." Then he gives what he calls a statement of account. He heads it Statement of Account. That statement shows money paid, amourit of the contract price, it shows certificates to the sixth payment, extras, mantel furnished by owner, demurrage, and unfinished work ^77, Balance due after 32 days from date. That shows that the balance, in Mr. Whiteway's opinion, was due in Novem- ber, 32 days from the 19th of October. And it goes on to say, the balance of $3,373 to be paid the contractor 32 days from date of this st-^tement, as provided in article 14." That taken in connection with the other document that is marked " G "—these three documents taken together, I think, were considered by Mr. Whiteway to be all that he had to do in connection with the contract. Because in his evidence on his cross- 40 examination he says that he considered that the certificate which he gave on October 19th — these are all dated the same date — closed his connection with the work ; he did not contemplate giving any other certificate, and that was his final certificate ; and then on his re-examination he says he gav: no final certificate. I might say it is manifestly unfair to m: 128 refuse the plaintiff the amount di-e him, because the architect has left the country and is no longer in position to give a certificate. The architect could not, in view of these various documents admitting that there is certain work to be done, give a certificate that the work is done to his satisfaction ; he has admitted certain work that ought to have been done and he has deducted from the contract. J think the true meaning of these docu- ments are that that was intended to be a final certificate, showing the amount that is due, particularly as he refers to the clause mentioned — as provided in article 14. Another question was discussed, and that was with regard to the Lien Act i am satisfied that so far as regards the Lien Act Mr. Adams swears that he applied for the payment of this amount of money, Mr. Duck saidiO he never got a certificate, but he admits that he got copies of these items from Mr. Whiteway at that time ; if he found there were liens he could deduct the amount from any payments made. The evidence shows that all liens have been paid off now ; and therefore that at the present time Mr. Duck is not in a position to refuse to pay what is reasonable in respect to the contract As far as I can make out from the certificate that was handed up to me, the last lien Wcis not paid until January, but it is not quite clear. I think it specifies the amount that was due. Then under the terms of the specifications, there is to be a guaranty given by the contractor that the roof will be proper under certain contingencies for a period of two years. It is not made a condition precedent to the payment of the money, but I think it 20 would be upon my order that Mr, Adams give that certificate ; If he does not give that certificate I shall order that a certain sum of money be paid into Court for the purpose of meeting any claim that may possibly arise with respect to the roof under the terms of the specifications for the period of one year from the 1st of September last ; that would be — it goes for two years from the time that the roof was finished — I take it from the ist of October, to be for another 1 2 months. Having now, I think, touched upon all the points, 1 think the judgment on the claim will be the amounts I have mentioned. I will put the figures. The claim is .$4628. Strike out $308.43, and insert in lieu of that $38,35, Then the counterclaim will be $20 for water, $100 for mantel, ^77 the amount of unfinished work certified by the architect, HO and $720 for demurrage. And the judgment will be entered up for the balance. And I think that Mr. Adams under the circumstances will be entitled to interest ; but the question is from what date that interest shall be payable. I think interest from the first of February would be the proper interest under the circumstinces. Because if he had cleared the premises off and got the money it would not be until 60 days from the 19th of Oc- tober. I shall say the ist of February. That is a compromise ; 1 cannot arrive at an exact date. Mr. Bodwell : At what per cent ? The Court : Six per cent. Mr. Bodwell : What order does your Lordship make as to costs ? 40 124 The Court : The plaintiff will get the costs of the claim and the defendant the costs of the counterclaim ; one judgment will be a set-off against the other , and judgment entered for the balance. Mr, Bodwell : We get part of the counterclaim. The Court : Yes, but you have lost part of the claim. Mr. Mills : I think, my Lord, if you say each party pay his costs it will be right. Mr Bodwell : Well, the costs on your Lordship's order The Court : The proper order is this : That Mr. Duck shall get his costs on the counterclaim, and the plaintiff shall get his costs on the other. There is no use of my going into the question of the issues, for instance, in the matter ot claims that Mr. Adams 10 makes for balance due to him on various items ; he has succeeded in some of them, but I cannot cut them out and say that as he has succeeded in five items that he is to get the costs on those five items. I shall say generally that he shall have the costs on the claim . as against the defendant, and the defendant get the costs on the counterclaim as against the plaintiff. Mr. Mills : There were certain costs on order 1 3. It was said that it was left to the judge at the trial. Mr. Bodwell : We ought to get the costs of that application. Mr. Mills : I submit they are defendant's costs in the action. The Court : They will be costs in the cau -e. Are there any other costs reserved ? 20 Mr. Mills: Yes, I think there was once that we made an application, my Lord The Court : Any application made for costs reserved, they will go as costs in the cause Now the matter is disposed of. Adjourned sine die. I hereby certify the foregoing to be a true and accurate report of the said proceedings, ' JUSTIN GILBERT. Official Stenographer. JUDGMENT. The 1 8th day of October, A.D., 1893. This action coming on for trial the 16th, 17th and i8th days of October, A.D. 1893, before the Honorable Mr. Justice Drake, in presence of Mr. Uodwell and Mr. Heimcken, of Counsel for the Plaintiff, and Mr. Mills, of Counsel for the Defendant, upon iiearing the evidence adduced on both sides and what was alleged by Counsel. THIS COURT DOTH DECLARE that the Plaintiff be allowed the sum of $4,358.35, with interest thereon at the rate of six per centum per annum from the first day of February, 1893, after deducting therefrom the amounts hereby allowed the Defend- ant on his counter-claim, viz. : Demurrage, $720.00 ; Architect's allowance for defective 10 work, $ 77.00; Mantel, $100.00 and \Vater$20.oo, making in all the sum of $917.00. And that the Plaintiff be entitled to recover his costs of the action and the Defendant his costs of counter-claim. And that the Plaintiff guarantees for one year from the said first day of October, A. D., 1893, that the roof of the building in the Specifications in question in this action mentioned shall be satisfactory. AND THIS COURT DOTH ORDER AND ADJ UDGE that the Plaintiff recover against the Defendant the sum of $3,44 r 35, with interest at the rate of six per centum per annum from the ist day of February, A.D. 1893, until paid together with his costs of original action to be taxed. And that the Defendant recover against the Plaintiff his costs of Counter-claim to 00 be taxed. By the Court JOHN H. AUSTIN, Acting Deputy Registrar. < NOTICE OF APPEAL. TAKE NOTICE that thj Full Court will be moved at its next sittings at the Court House, Bastion Square, in the City of Victoria, by Mr. Bodwell, of Counsel for the Plaintiff, by way of appeal from so much of the Judgment of the Honourable Mr. Justice Drake, delivered herein on the i8th day of October last past as directs that Judgment be entered for the Defendant in respect of the amount claimed for demurrage on the grounds j^o that the delay in respect of which the demurrage vr^s claimed was occasioned by the act of the Defendant in the following particulars : — (i) In failing to give possession of the premises occupied by his tenant, by reason of which the work was delayed till the 31st of August, 1892. ^^H ^ 1 •_><) (2) In failing to give plans for the construction of the clc\ ator until the month of September, which was the reason of the delay subsequent to the 31st of August, 1892 Dated this 25th day of November, A.D. 1893. Yours, etc., H. B. W. AIKMAN, Plaintiff's Solicitor. To S. Perry Mills, Esq.. Defendant's Solicitor.