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DISTRICT COURT., Ashburton Guardian, Volume 2, Issue 182, 2 November 1880
To-Day. (Before His Honor Judge Ward.) .. ; FERGUS V. PETER. Adjourned till next Court day. SAUNDERS V. WILLIAMSON. Adjourned till next Court day. D. E. JONES V. H. M. JONES. Mr. Reid appeared for plaintiff, Mr. Purnell for defendant. This was a claim for LBS odd for extras on a contract for the erection of a shop on the Wakanui road. A portion of the extras was admitted, and an alteration on the particulars was allowed showing what was admitted by defendant and what ivas denied. Mr Purnell, after the alteration had been made, applied for an adjournment, as the charge for extras on a certain leanto was now made for the first time.
After argument the case proceeded. D. E. Jones, plaintiff, deponed—l am a carpenter, and at present reside in Timaru. I remember tenders being called by plaintiff for the erection of a shop, &c., in Wakanui road. I tendered for the building at the request of plaintiff. He told me Mr. Brown, architect, had the plans and specifications. I w r cnt to Brown’s office and got them.. They were those produced, and, with the exception of the clauses marked out, the specifications are the same. The clauses marked out were marked out after the contract was entered into. The architect made the alterations. Made the contract on the basis of the first plans. Ultimately the plans were altered to provide for an additional two feet to the building, to allow the chamber floor to be carried out to the back, gave a tender for the building, with these alterations, at L 450. That tender was accepted, and an agreement for it was signed two days after The specifications were signed on the same date as the agreement. I had to wait for plans for a week or eight days, but went to work on a ground or sketch plan supplied by the architect. The plan showed 16ft. over all, hut the plan I tendered on showed only 15ft. Went back to Brown and told him the building was wider than I had contracted for. He replied that Jones had procured four feet instead of two, and wanted the building built accordingly, as it was vary narrow for a twostorey, Asked him how the additional feet would affect the price, and Brown said it would he paid for as an extra. Also saw defendant on the subject, who wanted to know the difference. Could not exactly tell him then, but said it would not be a great deal. He said if it were not to be much I could go on. He was two or three times a week on the ground. Worked according to Brown’s plans; The tracing produced was procured from Brown about five days after I got the sketch plan. The tracing is not the same as when I got it from Brown. The main building was the only one on the tracing when I got it a lean -to has been added since. Mr. Brown pointed out the addition to mo, 1 asked how this would affect the price. Brown said he had seen Jones on the subject, and I should be paid for it as an extra. There is only one room in this lean-to; there were two on the first plan. The front of the building was altered by Jones, but I had an order for it from the architect. During the progress of the work I got certificates from the architect. The first one was for L3oo,.and was dated Ist February. I was paid L2OO on account of this. I got another certificate for L 238 35., which included extras. Andrews laid the brick foundations, and Matthew Muir put up the framework. The architect died about the 10th or 11th of April. After the certificate had been given, I saw defendant at Brown’s office, where defendantdisputed the lean-to, and grumbled about the extras. Brown told him that the lean-to was put on by his orders, and should be paid for. Defendant has promised me the money several times if 1 would wait for it, but I have waited a long time now. At the building one day defendant said that morally lie owed me the money, but legally I could not recover. Defendant took possession of the building before it was completed. The prices charged for the extras are less than the rates charged for the whole building. I put them in at the full rate, but Brown deducted.
Cross-examined by Mr. Purnell —I tendered three times for the work. The plans were ready about a week after the agreement, • and it was during that interval that'l had the conversation with Brown as to the extension. The present width of the building is 16ft. 9in. Mr. Brown gave no order in writing for the extras. The specifications provide that all orders for extras should be given in the architect’s writing. I had no written order for these extras because they are shown on the plan. The extras claimed now are the same as those shown in the certificate. I get at the value of the two feet extension by measurement, and when I began the work I knew the lean-to was to be added. I did not put on an extra L3O on the contract price to cover the lean-to. Since the conversation with defendant at his house, he has disputed my claims. , By Mr. Reid —I have received no payment from defendant on account of those extras. There was a document signed and stamped given by ,me to Jones to clear him of all orders given by me during the progress of the work, .
Matthew Muir—l am a builder in Ashburton. I did part of the erection of a building for Mr. Jones in Wakanui road. During the erection of the building defendant was frequently present. I knew of several alterations being made on the building. I have taken measurements of the building to-day, and find them sub- ■ stantially the same as shown on the plan. I should estimate the cost of extending, the building two feet at about L3O to L4O, and at the time the lean-to was built it would cost about L2O or so. I thought L 450 too low a price for the building at the time, and declined to go in with plaintiff. Taking the plan now shown me I should say the width of the building contracted for was 16ft. and it shows no extras.
Wm. Reid, a builder, also knew the building in question and had measured it that morning. The cost of an extension of 2ft. on it would be about L3O or L4O. and the lean-to say L2O. Mr. Purnell said he had evidence, but submitted that plaintiff must be nonsuited on his own evidence. The law- was very strict on extras, and direct authority must be obtained for them from the owner, or in writing from the architect. Plaintiff had no such written authority and therefore he could not recover it. It was distinctly laid down in the specifications for the building that no extras could be paid for unless ordered in writing by the architect.
Mr. Reid replied to the non-suit point, stating that defendant had admitted portions of those extras, and accepted the benefit of the work.
His Honor refused to non-suit plaintiff, and Mr. Purnell went on with the defence, and called the defendant, . H. M. Jones, who deponed that he instructed Mr. Brown to prepare plans'and specifications of the building in question, and to invite tenders . for its erection. The width of the house was then 16ft. Plaintiff tendered for the work ■at L3BO. Afterwards on the architects advice fresh tenders were called for, and plaintiff gave a verbal tender at L 420. This was made in witness’s shop. The building then tendered for was 20ft. frontage, the original specifications having been altered to suit the new plan, the alterations having been made in red by the architect. Did not think there was any lean-to included in the specifications, but would not swear. Believed it was to be an extra, and did not object to it. A tender for L 450 sent in afterwards included this lean-to. The tender was written for L 450 to send to the Building Society, to show what it would amount to including the lean-to. Was not certain that he saw the plan before it was inspected by plaintiff. Was' never informed by plaintiff that plaintiff would look to him for payment for an extra two feet while he was at work, and had not any idea he was making a claim for it. ■ Was quite astonished when he found that Brown had given a certificate for the extras, and knew nothing of the claims until then. Objected to them, and; went with plaintiff to Brown’s office, where Brown said all he knew about was that the building was to be 4. feet wider and 3 feet longer than originally intended. Denied the remark as to moral and legal liability attributed to him by defendant. Had never acknowledged plaintiff’s claim for the extension of the building. Cross-examined by Mr. Held Mr. Brown had charge of the whole matter, and the agreement was signed in Mr. Brown’s office. A price was given and plans made out for a 13ft. building, and the clauses afterwards struck out from the specifications, and referring to a lean-to, referred to the lean-to shown in that plan. The alterations were made in red to suit the new plan. Did not believe the work had been commenced then, but could not say positively. Gave Brown 'instructions for the extensions. The lean-to is on the west side of the building. The measurement of that side would include the lean-to, which makes up the difference between the two tenders of L 420 and L 450. Could not say if the plan was then prepared, or if the lean-to was added after/ Mr. Jones had been at ' work. Objected to the items “extension of building and closet.” Saw the plan for a building IGft. 9in. and the tracing in Brown’s office, but I expected to get a building with 20ft. frontage. Only found out that the section was not square after the plan was prepared, and objected from the very beginning to paying for the two feet extension. When the building was finished, Jones said he had lost on it, and in a letter written to Jones, in which a possible loan from the Building Society was mentioned, had in his mind giving Jones a bonus, but never had any idea of paying the claim made. Never took any steps to repudiate Brown’s certificate. George St. Hill—Am a builder. Have measured the building. Thought no draughtsman could have added the lean Jo to the plan shown after the plan had been drawn. Had not made any estimate of the cost of a two-feet extension. Cross-examined—Did his own drawing, and thought the line pointed out to'him on the plan was the result of a slip, and did not indicate that an addition had been made to the plans. It was quite possible for the lean-to to have been added after without showing, but thought the plan was all drawn at one time.
Plaintiff re-called—ln pleasuring the building, the lean-to was'included in the ground extension. Counsel addressed the Bench, after which his Honor said that no architect could give a certificate as an extra for what was palpably includodin the contract. An architect could not by any means increase the contract price, and the building had evidently been erected to the plan signed by the contractor. He would give judgment for the plaintiff for the amount admitted by defendant to be due, namely, Ll 3 95., defendant paying costs. IN BANKRUPTCY. lie H. J. Weeks and 0. Dixon.—Application for payment of costs. Granted. Mr. Purnell. Be E. A. Field.—Order for discharge granted, Mr. Purnell.
DISTRICT COURT., Ashburton Guardian, Volume 2, Issue 182, 2 November 1880
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