JUDGMENT FOR £100

Press, Volume LXXXIII, Issue 25243, 23 July 1947, Page 9

JUDGMENT FOR £100

CONTRACT HELD TO BE VALID

A reserved decision was given by Mr Raymond Ferner, S.M., in a case in which J. S. Jackson, a builder and contractor (Mr C. S. Thomas), sought to recover from Phillip Dunstan Ramsay, a motorbody builder (Mr K. J. McMenamin), £lOO, being a balance due for materials furnished and work done by the plaintiff in the erection of a house. Judgment for the full amount, was given. The facts were established by the evidence of the plaintiff who agreed to erect in August or September, 1945, a house for defendant at a cost of £1597, said the Magistrate. The defendant accepted the offer. On January 14, 1946, the plaintiff found he had made a mistake of £lOO in the price he had quoted, when he made a check on his calculations before ordering the materials. The plaintiff made it clear to defendant that he could not continue with the job without the £lOO, and the defendant agreed to pay the additional £lOO provided the plaintiff did the job personally. He started the job on March 6, 1946, but was challenged by the defendant’s lawyer on March 22. The £lOO was put in the plaintiff's lawyer’s trust account, the question of the defendant’s liability to remain until the work was finished.

In this case it was quite clear that when the plaintiff discovered his error and discussed the position with defendant, the original contract was still com-? pletely executory. Seeing that defendant had agreed in writing to pay the additional £lOO, there was little merit in the stand taken by defendant, and the variation freely entered into for the purpose of rectifying a clear mistake should be upheld if that course could be supported in law. “In my opinion it can,” said the’ Magistrate, “and following the statements in law of Sir Robert Stout in the New Zealand cases I have referred to. I hold that in flus case the written promise of January 15, 1946, to pay the additional £lOO was a variation in the contract price in the original of November 19. 1945, when that contract was still executory and is valid, even though made without consideration. “I am satisfied that plaintiff should recover the £100,” continued the Magistrate. “and prefer to base my judgment for the plaintiff on the ground that the proved variation of the original executory contract did not need consideration to support it.”